                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00069-CR
                              NO. 02-13-00070-CR


KENDRAE AMEIN MONTEZ                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1279590D
                      TRIAL COURT NO. 1279592D
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                         MEMORANDUM OPINION 1

                                      ----------

      In four points that collectively concern the trial court’s decision to deny his

motion to suppress evidence and one point that concerns the trial court’s

decision to deny his motion for a directed verdict, 2 appellant Kendrae Amein

      1
       See Tex. R. App. P. 47.4.
      2
      Appellant raises his fifth point only in cause number 02-13-00070-CR, the
appeal related to his conviction for possessing while intending to deliver heroin.
Montez appeals his first-degree-felony convictions for possession with intent to

deliver cocaine and heroin, each of four grams or more but less than two

hundred grams. 3 We affirm.

                              Background Facts

      In April 2012, Grand Prairie Police Department (GPPD) Detective James

Edwards watched a confidential informant make a controlled drug buy at an

apartment on East Park Row in Arlington. 4     The police obtained a no-knock

search warrant for the apartment. Appellant was not a named person in the

search warrant, but Detective Edwards informed his team that appellant, from

whom the confidential informant had previously bought drugs, could likely be at

the apartment.

      Upon arriving at the apartment, Detective Edwards saw a green vehicle

that was involved in another investigation with appellant, and he alerted a

sergeant of the possibility that appellant was at the apartment. As the officers

approached the apartment, which was located on the second floor of the

complex, they noticed appellant standing on the landing outside the front door.

One other person was also standing outside with appellant and another had his




      3
      See Tex. Health & Safety Code Ann. §§ 481.102(2), (3)(D), .112(a), (d)
(West 2010).
      4
       The GPPD had previously used the same confidential informant, who was
found reliable.


                                       2
head out of the doorway. The three people were talking, and the person inside

the threshold was the target of the warrant.

      Upon seeing appellant and the others near the doorway, GPPD Detective

Pete Amaral told them they were being detained and placed them in handcuffs.

Once they were detained, the three were immediately patted down for weapons.

Detective Amaral discovered a small, closed black box in appellant’s back

pocket. Believing that the box might contain an “after-market . . . stun gun,”

Detective Amaral gave it to Detective Edwards. The search of the apartment

lasted, according to Detective Edwards, between an hour and an hour and a half.

      In that timeframe, after discovery of an outstanding warrant for appellant,

he was placed under arrest. After the police confirmed the warrant, they opened

the box and found narcotics inside. The police took appellant to a detention

center in Dallas County, where he dropped more drugs into a bin upon being

strip-searched.   The strip-search also revealed several pills in appellant’s

possession.

      A grand jury indicted appellant with four charges, including possession with

intent to deliver cocaine and heroin. On federal and state grounds, appellant

filed a motion to suppress evidence of the drugs that the police found, but after a

hearing, the trial court overruled the motion, citing officer safety concerns and

information that the police possessed concerning appellant based upon his

previous sale of drugs.




                                         3
      Appellant pled not guilty to all counts.        A jury found him guilty of

possession with intent to deliver heroin and cocaine, each four grams or more,

but less than two hundred grams, and the trial court sentenced him to twenty-five

years’ confinement on each conviction, to be served concurrently.          Appellant

brought these appeals.

            The Propriety of the Detention and Frisk of Appellant

      In appellant’s first four points, he argues that the trial court erred by

overruling his motion to suppress in violation of article 1, sections 9, 10, and 19

of the Texas constitution; articles 18.22 and 38.23 of the code of criminal

procedure; and the Fourth, Fifth, and Fourteenth Amendments of the United

States Constitution. 5    Appellant contends that officers lacked reasonable

suspicion to support his detention and that without that detention, he would not

have been searched, and the heroin and cocaine would not have been found.

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and


      5
       Appellant has not, at trial or on appeal, separately argued federal and
state constitutional or statutory grounds nor suggested that the state constitution
or statutes provide greater protection than his federal constitutional claim. We
will analyze the points as one argument. See Reed v. State, 308 S.W.3d 417,
419 n.3 (Tex. App.—Fort Worth 2010, no pet.).


                                         4
demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,

652–53 (Tex. Crim. App. 2002).

      When the record is silent on the reasons for the trial court’s ruling, we

imply the necessary fact findings that would support the ruling if the evidence,

viewed in the light most favorable to the ruling, supports those findings. State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State,

214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial court’s legal

ruling de novo unless the implied fact findings supported by the record are also

dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim.

App. 2006). We must uphold the trial court’s ruling if it is supported by the record

and correct under any theory of law applicable to the case. State v. Stevens, 235

S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV. To suppress evidence

because of an alleged Fourth Amendment violation, the defendant bears the

initial burden of producing evidence that rebuts the presumption of proper police

conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872

(Tex. Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.


                                         5
Amador, 221 S.W.3d at 672.       Once the defendant makes this showing, the

burden of proof shifts to the State to establish that the search or seizure was

reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005); Ford v.State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      The State contends in part, relying on the Supreme Court’s decision in

Michigan v. Summers, that the police lawfully detained appellant because he was

“in the immediate vicinity of the apartment . . . talking to the drug dealer

described in the no-knock narcotics warrant.” 452 U.S. 692, 101 S. Ct. 2587

(1981). In Summers, just before police officers began executing a warrant at a

house to search for narcotics, they saw Summers descending from the front

steps, requested his assistance in entering the home, detained him, and

eventually found heroin in his coat pocket.     Id. at 693, 101 S. Ct. at 2589.

Summers argued that his initial detention violated his Fourth Amendment rights.

Id. at 694, 101 S. Ct. at 2589. The Supreme Court held that the police had not

violated Summers’s rights, explaining:

            Of prime importance in assessing the intrusion is the fact that
      the police had obtained a warrant to search respondent’s house for
      contraband. A neutral and detached magistrate had found probable
      cause to believe that the law was being violated in that house and
      had authorized a substantial invasion of the privacy of the persons
      who resided there. The detention of one of the residents while the
      premises were searched, although admittedly a significant restraint
      on his liberty, was surely less intrusive than the search itself. . . .

             In assessing the justification for the detention of an occupant
      of premises being searched for contraband pursuant to a valid
      warrant, both the law enforcement interest and the nature of the
      “articulable facts” supporting the detention are relevant. Most


                                         6
      obvious is the legitimate law enforcement interest in preventing flight
      in the event that incriminating evidence is found. Less obvious, but
      sometimes of greater importance, is the interest in minimizing the
      risk of harm to the officers. Although no special danger to the police
      is suggested by the evidence in this record, the execution of a
      warrant to search for narcotics is the kind of transaction that may
      give rise to sudden violence or frantic efforts to conceal or destroy
      evidence. The risk of harm to both the police and the occupants is
      minimized if the officers routinely exercise unquestioned command
      of the situation. Finally, the orderly completion of the search may be
      facilitated if the occupants of the premises are present. . . .

            ....

             . . . If the evidence that a citizen’s residence is harboring
      contraband is sufficient to persuade a judicial officer that an invasion
      of the citizen’s privacy is justified, it is constitutionally reasonable to
      require that citizen to remain while officers of the law execute a valid
      warrant to search his home. Thus, for Fourth Amendment purposes,
      we hold that a warrant to search for contraband founded on probable
      cause implicitly carries with it the limited authority to detain the
      occupants of the premises while a proper search is conducted.

Id. at 701–05, 101 S. Ct. 2593–95 (footnotes and citation omitted). When the

Supreme Court recently circumscribed the rule in Summers, it emphasized that

detentions “incident to the execution of a search warrant are reasonable under

the Fourth Amendment because the limited intrusion on personal liberty is

outweighed by the special law enforcement interests at stake”; the Court stated,

however, that the rule applies only when the detainee is in the immediate vicinity

of the premises to be searched. Bailey v. United States, 133 S. Ct. 1031, 1042–

43 (2013); see also Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1470

(2005) (“Mena’s detention for the duration of the search was reasonable under

Summers because a warrant existed to search [a residence] and she was an



                                          7
occupant of that address at the time of the search.”). 6 The Court also listed

several factors to determine if the occupant is within the “immediate vicinity,”

such as the lawful limits of the premises, whether the occupant was within the

line of sight of the dwelling, and the ease of reentry from the occupant’s location.

Bailey, 133 S. Ct. at 1042.

      We recently recognized, citing Summers and Bailey, that even when police

officers do not have reasonable suspicion, or any suspicion, that a particular

individual has been involved in criminal activity, they may detain that individual

incident to the execution of a proper search warrant as long as the individual is

found within or immediately outside a residence at the moment the officers

execute the warrant. 7 Shed v. State, No. 02-12-00229-CR, 2013 WL 3064554, at


      6
       In Summers, the Court emphasized that the rule from that case does not
depend on an ad hoc determination about the “extent of the intrusion” caused by
the seizure or the quantum of proof justifying the detention. 452 U.S. at 705
n.19, 101 S. Ct. at 2595 n.19.
      7
       Thirty years ago, the court of criminal appeals, resolving federal
constitutional arguments, held Summers did not apply when the defendant
arrived at a residence several minutes after the execution of a warrant. Lippert v.
State, 664 S.W.2d 712, 715, 720–21 (Tex. Crim. App. 1984). Appellant was
present at the moment of the warrant’s execution, so Lippert is factually
distinguishable.

       Although Lippert appeared to interpret Summers as applying only to
people who have “control” over or residence in premises subject to a search
warrant, decisions after Lippert, interpreting the same federal constitutional
provisions, have clarified that Summers authorizes the detention of all individuals
present within the immediate vicinity of a residence at the time the warrant is
executed. See id. at 720; see also Bailey, 133 S. Ct. at 1039–42 (distinguishing
between an “occupant” and a “resident,” focusing on the spatial relationship of
the defendant to the premises, and “confin[ing] the Summers rule to those who

                                         8
*4–5 (Tex. App.—Fort Worth June 20, 2013, no pet.) (mem. op., not designated

for publication). Likewise, other Texas courts have applied Summers to uphold

temporary detentions that are incident to the execution of search warrants. See

Morrison v. State, 132 S.W.3d 37, 41, 43–44 (Tex. App.—Houston [14th Dist.]

2004, pets. ref’d) (upholding a detention under Summers when the police

ordered the defendant to lay on the floor and handcuffed him while they



are present when and where the search is being conducted” (emphasis added));
id. at 1043 (Scalia, J., concurring) (“[Summers] applies only to seizures of
‘occupants’—that is, persons within ‘the immediate vicinity of the premises to be
searched.’”); United States v. Martinez-Cortes, 566 F.3d 767, 770 (8th Cir. 2009)
(“[The] authority to forcibly detain during the warrant search extends to all
occupants of the premises, not just the owner or the subject of the warrant.”);
United States v. Sanchez, 555 F.3d 910, 918 (10th Cir.) (distinguishing
“occupant” from “resident” and noting that an “occupant could be anyone present
on the premises, such as a visitor or even a salesperson”), cert. denied, 556 U.S.
1145 (2009); United States v. Davis, 530 F.3d 1069, 1080 (9th Cir. 2008)
(rejecting attempts to “distinguish Summers based on the fact[] that a detainee
has no ownership interest in the property being searched”); United States v.
Cavazos, 288 F.3d 706, 711 (5th Cir.) (applying Summers to an “occupant”
although the police did not know whether he was a “resident”), cert. denied, 537
U.S. 910 (2002); United States v. Fountain, 2 F.3d 656, 663 (6th Cir.) (“[W]e
conclude that the district court correctly rejected McEaddy’s argument that the
Supreme Court intended that the rule in Summers apply only to ‘residents.’”),
cert. denied, 510 U.S. 1014 (1993); United States v. Pace, 898 F.2d 1218, 1238–
39 (7th Cir.) (applying Summers when the detainees were not residents), cert.
denied, 497 U.S. 1030 (1990).

      Principal justifications for the rule in Summers—minimizing the risk of
sudden violence when executing a warrant by taking “unquestioned command”
and preventing destruction of evidence or distraction of officers—would be
thwarted by a rule that requires the police to determine occupants’ residency
before detaining them. See 452 U.S. at 702–03, 101 S. Ct. at 2594; see also
Bailey, 133 S. Ct. at 1040; Fountain, 2 F.3d at 663 (“[C]oncerns [for officers’
safety and preventing the disposal of evidence] are the same regardless of
whether the individuals present in the home . . . are residents or visitors.”).


                                        9
performed a search); see also Dixon v. State, 206 S.W.3d 613, 619 n.24 (Tex.

Crim. App. 2006) (citing Muehler and recognizing that it is “well-established that

when officers have probable cause to search a person or location, they may

temporarily detain those persons or others who arrive during the search”

(emphasis added)); Babalola v. State, No. 10-09-00234-CR, 2011 WL 1419752,

at *4 (Tex. App.—Waco Apr. 13, 2011, pet. ref’d) (mem. op., not designated for

publication); Davis v. State, No. 01-98-00967-CR, 2000 WL 1593794, at *2 (Tex.

App.—Houston [1st Dist.] Oct. 26, 2000, pet. ref’d) (not designated for

publication) (“When a search warrant is executed, a person who is an occupant

of the premises may be detained for the duration of the search.”); Owens v.

State, No. 05-96-01075-CR, 1998 WL 331564, at *2 (Tex. App.—Dallas June 24,

1998, no pet.) (not designated for publication) (stating the rule in Summers and

adding that “[o]nce an officer has validly detained an individual, the officer may

conduct a limited protective search for weapons if he has a reasonable fear for

his safety”).

      The evidence in this case establishes that as officers ascended the stairs

and approached the apartment, they saw appellant and two other people on the

landing directly in front of the apartment’s door. To execute the search warrant

and for officer safety concerns, the three people were handcuffed and detained in

a fairly close area. 8 Each individual was told that he was not being arrested but


      8
       Appellant was detained about ten to twenty feet away from the front door.
Detective Edwards explained that typically in executing search warrants, GPPD

                                       10
only detained for the officers’ safety. The officers arrested appellant only after

discovering an outstanding warrant. We conclude that the rule the Supreme

Court established in Summers and repeated and clarified in Bailey justified the

police’s temporary detention of appellant because he was standing directly in

front of the apartment’s door and talking with the target of the warrant, putting

him within the immediate vicinity of the premises. See Bailey, 133 S. Ct. at

1037–38, 1042; Summers, 452 U.S. at 704–05, 101 S. Ct. at 2595.

      On appeal, appellant does not cite Summers or Bailey or recognize the

suspicion-independent rule stemming from those cases. 9 He contends, however,

that his detention constituted a formal arrest because he followed the officers’

admonitions, did not interfere with the execution of the search warrant, lacked

movement, and was placed in handcuffs for approximately an hour and a half.

But even in such situations, the Summers rule has been applied. For example, in

Muehler, the Court held that a detention was “plainly permissible” under

Summers’s “categorical” rule when the police handcuffed an occupant at

gunpoint and isolated her within a garage while conducting an hours-long search.

544 U.S. at 95–98, 125 S. Ct. at 1468–70. The Court stressed that officers’ “use

of force in the form of handcuffs to effectuate [the detainee’s] detention in the

officers detain people that have direct access to apartments that are being
searched.
      9
       Instead, appellant mainly focuses on whether the police could detain him
under Terry v. Ohio based on reasonable suspicion that he had engaged in
criminal activity. See 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968).


                                       11
garage . . . was reasonable because the governmental interests outweigh the

marginal intrusion.” Id. at 99, 125 S. Ct. at 1470. Although the search in Muehler

was for weapons, the Court relied on Summers, which recognized that a search

for drugs may “give rise to sudden violence or frantic efforts to conceal or destroy

evidence.” Id. at 100, 125 S. Ct. at 1471 (citing Summers, 452 U.S. at 702, 101

S. Ct. at 2594); see Richards v. Wisconsin, 520 U.S. 385, 391 n.2, 117 S. Ct.

1416, 1420 n.2 (1997) (recognizing the “link[] between drugs and violence”).

      Similarly, the Tenth Circuit upheld the detention in Sanchez, when a

warrant was issued to search for drugs and drug paraphernalia, although the

defendant was detained, placed on the ground, and handcuffed for one hour

while a search was conducted.      555 F.3d at 912, 915–19; see also Marcilis v.

Twp. of Redford, 693 F.3d 589, 599 (6th Cir. 2012) (recognizing the “dangers

inherent in narcotics-related searches” and holding that “officers conducting

residential searches may detain individuals in handcuffs and display firearms

where the officers have a justifiable fear of personal safety”); Avina v. United

States, 681 F.3d 1127, 1131–32 (9th Cir. 2012) (holding that police officers did

not act unreasonably when, in executing a search warrant for a drug trafficker,

they forced an occupant of a home to the ground and handcuffed adults in the

home).

      Similar to the cases cited above, we conclude that in this case, the

governmental interests described in Summers and its progeny outweighed the

minimal intrusion related to appellant’s detention, that the acts involved in


                                        12
detaining appellant during the length of the search (amounting to handcuffing,

sitting, and waiting) were objectively reasonable under the circumstances and

were not excessively forceful, and that the detention did not constitute an arrest.

See Los Angeles Cnty. v. Rettele, 550 U.S. 609, 614, 127 S. Ct. 1989, 1992

(2007) (applying Summers and explaining that the “test of reasonableness under

the Fourth Amendment is an objective one.”). 10

      Likewise, we also conclude that the frisk of appellant was authorized.

Assuming that reasonable suspicion of criminal activity and a danger to the

officers was required for the frisk, 11 the facts warranted such suspicion. See

Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013) (explaining that if an

“officer is justified in believing that a person whose suspicious behavior he is

investigating is armed, he may frisk that person to determine if the suspect is, in

fact, carrying a weapon and, if so, to neutralize the threat of physical harm”). The

evidence establishes that the police had obtained the search warrant for the

apartment based on a confidential informant’s controlled purchase of drugs there;

that the police were executing the warrant on a no-knock basis because of their


      10
       Like in Rettele, the detention here was “shorter . . . than the 2- to 3-hour
handcuff detention upheld in [Muehler].” 550 U.S. at 615, 127 S. Ct. at 1993.
      11
       Citing Ybarra v. Illinois, 444 U.S. 85, 92–93, 100 S. Ct. 338, 343 (1979),
the court in Lippert concluded that a frisk cannot be merely justified by a
defendant’s presence at the premises where a warrant is executed. See 664
S.W.2d at 719–22; see also Denver Justice & Peace Comm., Inc. v. City of
Golden, 405 F.3d 923, 929–31 (10th Cir. 2005) (holding that while Summers
supports a categorical authority to detain, it does not automatically permit a frisk).


                                         13
belief that weapons could be present; 12 that Detective Edwards had been

informed that appellant had previously sold drugs to a confidential informant; that

the warrant was executed in a high-crime area; that upon the officers’ arrival,

they saw appellant talking with the person from whom the confidential informant

had purchased drugs at the apartment; and that Detective Edwards and

Detective Amaral knew from training and experience that the presence of guns

typically connects with narcotics activity. Cf. Carmouche v. State, 10 S.W.3d

323, 330 (Tex. Crim. App. 2000); Wilson v. State, 132 S.W.3d 695, 698 (Tex.

App.—Amarillo 2004, pet. ref’d) (“[T]hat weapons and violence are associated

with the drug trade is rather settled. Thus, encountering one who is reasonably

suspected of engaging in drug activity can justify a brief and minimally intrusive

frisk of his person.” (citation omitted)).

      Although appellant did not display weapons, a police officer’s belief that a

suspect is armed may be predicated on the nature of the suspected criminal

activity. Morris v. State, 195 S.W.3d 740, 745 (Tex. App.—Amarillo 2006, pet.

ref’d). Because weapons are closely associated with drug dealing, a reasonable

suspicion that a suspect is dealing drugs supports a reasonable inference that

the suspect is armed. Id. (citing Carmouche, 10 S.W.3d at 330).



      12
        Detective Edwards and Detective Amaral testified that when they decide
whether to seek a no-knock warrant, they consider the likely presence of
weapons at the location to be searched. Appellant does not challenge the factual
basis of the no-knock warrant.


                                             14
      Because we hold that the principles discussed in Summers and in Bailey

justified the officers’ temporary detention of appellant while they executed the

search warrant and that they were justified in frisking him based on their

reasonable suspicion that he was engaging in criminal activity and was

dangerous, we conclude that the trial court did not err by denying his motion to

suppress. 13 We overrule his first four points.

                                       Venue

      In appellant’s fifth point in cause number 02-13-00070-CR, he contends

that the trial court erred when it overruled his motion for directed verdict because

there was insufficient evidence to prove venue in Tarrant County. The county in

which the offense was committed is the proper venue for the prosecution. Tex.

Code Crim. Proc. Ann. art. 13.18 (West 2005). Venue is not an element of the

offense and must be proved only by a preponderance of the evidence, whether

direct or circumstantial.   Id. art. 13.17 (West 2005); Holdridge v. State, 707

S.W.2d 18, 22 n.4 (Tex. Crim. App. 1986); see also Rippee v. State, 384 S.W.2d

717, 718 (Tex. Crim. App. 1964) (explaining that a venue determination will be

upheld “if from the evidence the jury may reasonably conclude that the offense

was committed in the county alleged”); Dewalt v. State, 307 S.W.3d 437, 457



      13
        Therefore, we decline to address whether the police’s detention of
appellant at the apartment could also appropriately be based on reasonable
suspicion of his criminal activity. See Tex. R. App. P. 47.1; Smith v. State, 316
S.W.3d 688, 700 n.2 (Tex. App.—Fort Worth 2010, pet. ref’d).


                                         15
(Tex. App.—Austin 2010, pet. ref’d) (“The trier of fact may make reasonable

inferences from the evidence to decide the issue of venue.”).

      Appellant contends that because the heroin was found in a property bin at

the jail located in Dallas County, the evidence is insufficient to prove that he

possessed the heroin in any other county. However, we conclude that the State

proved by a preponderance of the evidence that appellant possessed the heroin

in Tarrant County. Appellant does not challenge his overall possession of the

heroin. The record shows that he was arrested in Tarrant County, and there is

no evidence in the record to raise the possibility that he obtained the heroin after

his arrest but before he arrived at the jail.      Thus, we hold that the State

sufficiently proved venue, and we overrule appellant’s fifth point.

                                    Conclusion

      Having overruled each of appellant’s points, we affirm the trial court’s

judgments.

                                                    /s/ Terrie Livingston

                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

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

DELIVERED: July 17, 2014




                                         16
