 


                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00230-CV
                           ____________________


        IN RE COMMITMENT OF MARTIN GUADALUPE LUJAN

_______________________________________________________________________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-10-10750 CV
_______________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to civilly commit Martin Guadalupe

Lujan (Lujan) as a sexually violent predator under the Sexually Violent Predator

Act. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp.

2014) (SVP statute). A jury found Lujan suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence. Id. § 841.003

(West Supp. 2014). The trial court entered a final judgment and an order of civil

commitment under the SVP statute.

      Lujan raises four issues on appeal. In his first two issues, he argues that the

evidence is legally and factually insufficient to support a finding that he has a

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behavioral abnormality. In his third issue, he argues that the trial court erred in

denying him assistance of counsel at a post-petition psychiatric examination. And

in his fourth issue, he argues that this Court’s decision in In re Commitment of

Richard, No. 09-13-00539-CV, 2014 Tex. App. LEXIS 6974 (Tex. App.—

Beaumont June 26, 2014, pet. denied) (mem. op.), renders Chapter 841

unconstitutional. We overrule all of his issues and affirm the judgment of the trial

court.

                                THE SVP STATUTE

         Under the SVP statute, the State bears the burden of proving beyond a

reasonable doubt that the person it seeks to commit for treatment is a sexually

violent predator. Tex. Health & Safety Code Ann. § 841.062 (West 2010). As

defined by the Legislature, a sexually violent predator is a person who “(1) is a

repeat sexually violent offender; and (2) suffers from a behavioral abnormality that

makes the person likely to engage in a predatory act of sexual violence.” Id.

§ 841.003(a) (West Supp. 2014). The statute defines “‘[b]ehavioral abnormality’”

as “a congenital or acquired condition that, by affecting a person’s emotional or

volitional capacity, predisposes the person to commit a sexually violent offense, to

the extent that the person becomes a menace to the health and safety of another

person.” Id. § 841.002(2) (West Supp. 2014). Previously, we have stated that “[a]

condition which affects either emotional capacity or volitional capacity to the


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extent a person is predisposed to threaten the health and safety of others with acts

of sexual violence is an abnormality which causes serious difficulty in behavior

control.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—

Beaumont 2003, pet. denied).

                               UNDERLYING FACTS

      Lujan was convicted in May 2009 on three counts of indecency with a child

by sexual contact, each a second degree felony. His victims were D.L., L.T., and

A.B. At the time the conduct occurred, A.B. was about nine or ten years old, D.L.

was about ten years old, and L.T. was about thirteen years old. Lujan pleaded

guilty to all three offenses, and the court sentenced him to five years of

confinement for each offense, with the sentences to run concurrently. D.L. and

A.B. are Lujan’s nieces, and he was convicted for offenses against them that

occurred in 2002 and 2004, respectively. L.T. is not related to Lujan, and he was

convicted of an offense against L.T. that occurred in 2007. At the time of the civil

commitment trial, Lujan was serving his concurrent sentences for his offenses.

Lujan was previously convicted in 1991 for a second degree felony sexual assault

against C.L., a girl who was about fourteen years old at the time of the sexual

assault. Lujan also pleaded guilty to the offense against C.L., for which he served

eight years in prison.




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      In his testimony at the civil commitment trial, Lujan denied he used any

force in the 1991 sexual assault against C.L., and he claimed he had consensual sex

with her, although he admitted that C.L. was only about fourteen years old at the

time of the assault. He denied any sexual contact with D.L., L.T., and A.B., and he

stated that he pleaded guilty to the offenses against each of them “under duress.”

      When asked if he was a sex offender, Lujan replied “No . . . . I’m a

registered sex offender[.]” He testified that he had never had sex offender

treatment, that it was never offered to him, and that he did not believe he had any

issues that needed to be addressed in treatment. Lujan testified that, if offered sex

offender treatment, he would take it because “I believe anything could be

beneficial to me, you, them, anybody. . . . I mean, the more you learn, the better off

you are. Isn’t that the old saying, knowledge is power?” He also stated “if it would

help me get out earlier, I would take one.” Lujan testified that he currently had no

sex drive, and he did not believe he would harm any other girls in the future. When

asked about his plan as to how he would avoid reoffending after his release from

prison, Lujan said he planned to stay away from children because “I probably have

a less chance [sic] of being accused of something I didn’t do again.” And when

asked why the jury should believe he would not go back to prison for another sex

offense, Lujan replied “[b]ecause I didn’t do the last three.” He stated that, upon




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his release from prison, he had no plan to stay away from his own children or

grandchildren.

      Lujan also testified that he started drinking alcohol at age sixteen, he started

using marijuana at age seventeen, and he admits he used LSD once. He agreed he

was charged with and pleaded guilty to driving while intoxicated; however, he

denied that he ever had a problem with substance abuse. He agreed that he got a

major disciplinary in prison for assaulting someone, and he received solitary

confinement for a year and three months; but he explained that he was defending

himself. When asked if he was ashamed of his criminal history, he responded “I

am ashamed that I plea bargained the five, [y]es . . . .”

      Dr. Michael Arambula testified as an expert for the State. Dr. Arambula is a

medical doctor, board-certified in general and forensic psychiatry, who has

evaluated prisoners for behavioral abnormality purposes for over ten years. He

testified that in assessing Lujan, he used the methodology followed by individuals

trained in forensics who perform this kind of evaluation in Texas. Dr. Arambula

interviewed Lujan for about two-and-a-half hours, and he also reviewed various

records, including investigative records and details of Lujan’s offenses, prison

records, victim statements, Lujan’s deposition, and an evaluation by a

psychologist. In Dr. Arambula’s opinion, Lujan has a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence.


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      Dr. Arambula diagnosed Lujan with sexual deviance, which he testified is

“the same in the DSM [Diagnostic and Statistical Manual] as a paraphilia with

features of pedophilia and with features of sadism.” He also diagnosed Lujan as

having “a personality disorder with some antisocial features[.]” Explaining the

antisocial features of Lujan’s personality, Arambula described Lujan as “callous”

and lacking responsibility. Arambula further explained that he did not diagnose

Lujan with a specific personality disorder but rather a “nondescript personality

disorder,” and he described Lujan as “very, very obsessive compulsive” and

“rather paranoid[.]”

      Dr. Arambula testified that two big issues he focuses on in determining

whether someone has a behavioral abnormality are “how antisocial somebody is,

because that’s a big risk factor, and also how serious the sexual deviance is.”

Arambula regarded Lujan’s sexual deviance as “pretty serious[]” based on the

number of his victims, which in Arambula’s opinion, “raises the risk for

recidivism.” He qualified Lujan’s sexual deviance as having sadistic features based

on the details of the assault against C.L., especially the number of her contusions,

internal and external lacerations on her genitalia, blood at the scene, on her

undergarments, and pooled inside her, and her report of a struggle. Dr. Arambula

also noted that Lujan expressed no remorse or guilt concerning the offense against

C.L., and Arambula regarded this as a significant part of Lujan’s sexual deviance


                                         6
 
 


“because there was so much physical harm that he did to her.” Dr. Arambula also

observed that Lujan expressed no remorse or guilt as to his other victims.

      Dr. Arambula stated that the following factors increase Lujan’s risk of

sexual re-offense: his non-sex-related criminal offenses, the fact that Lujan

continued to commit sex offenses after having been incarcerated for a sex offense,

multiple victims and multiple incidents, Lujan’s age, Lujan’s lack of sex offender

treatment, Lujan’s denial of the need for treatment, and Lujan’s lack of insight into

what triggers Lujan to offend. Dr. Arambula reported that Lujan’s score on the

Static-99R, an actuarial used for evaluating the risk of reoffending and scored by a

non-testifying psychologist, was a three, which indicated a “low-moderate” risk of

re-offense; however, Dr. Arambula believed Lujan’s actual risk was higher, “more

moderate to moderate-high.” According to Dr. Arambula, sexual deviance is a

chronic condition. Dr. Arambula noted some positive factors for Lujan, including

his stable employment history, the fact that he is “not very antisocial,” his good

support system and family involvement, and the lack of significant substance abuse

issues.

      On cross examination, Lujan’s attorney asked Dr. Arambula about his

diagnoses, and Arambula explained that:

      [Lujan] has sexual deviance with some features of pedophilia and
      sadism. I could say alternatively that it is paraphilia, not otherwise
      specified, with features of pedophilia and sadism. That’s per the


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      DSM, by the way. . . . then he has some personality pathology, but not
      to the degree of a specific personality disorder.

Dr. Arambula further stated that although the Diagnostic and Statistical Manual

(DSM) does not include a diagnosis of sexual deviance, the literature supports the

diagnosis. When Lujan’s attorney asked what “objective, empirical evidence” Dr.

Arambula had for concluding that Lujan has a disease, the doctor replied as

follows:

      [F]irst of all, it’s based on the literature that was then passed on to me
      during my training. And subsequent to that there have been other
      studies that have been published. They all describe different diseases,
      disease types of sexual deviance and paraphilias. In his case, as I
      stated, he has two. One has some features of sadism and the other has
      features of pedophilia.

The defense did not call any expert witnesses at the civil commitment trial.

                          LEGAL AND FACTUAL SUFFICIENCY

      In his first issue, Lujan argues that the evidence is legally insufficient to

support a finding that Lujan has a behavioral abnormality. And in his second issue,

he argues the evidence is factually insufficient to support a finding that he has a

behavioral abnormality.

A. Standard of Review.

      In SVP cases, the State must prove the elements of its case beyond a

reasonable doubt. See Tex. Health & Safety Code Ann. § 841.062(a). Because the

statute places upon the State the burden of proof employed in criminal law, this


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Court has adopted the appellate standard of review in criminal cases for legal

sufficiency of the evidence. See In re Commitment of Mullens, 92 S.W.3d 881, 885

(Tex. App.—Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)). “In a legal sufficiency review, this court reviews all of the

evidence in a light most favorable to the verdict.” Id.

      We must determine if a rational factfinder could have found, beyond a

reasonable doubt, that Lujan is a sexually violent predator. Tex. Health & Safety

Code Ann. §§ 841.002(2), 841.003(a), 841.062. To prevail on his legal sufficiency

issue, Lujan is required to demonstrate that no evidence supports the jury’s finding.

See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); In re Commitment of

Alvarado, No. 09-13-00217-CV, 2014 Tex. App. LEXIS 3343, at *16 (Tex.

App.—Beaumont Mar. 27, 2014, pet. denied) (mem. op.); Christus St. Mary Hosp.

v. O’Banion, 227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet. denied).

“[W]hether a person ‘suffers from a behavioral abnormality that makes the person

likely to engage in a predatory act of sexual violence’ is a single, unified issue.” In

re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133

S. Ct. 2746 (2013). We defer to the jury on matters of weight and credibility of the

evidence in a challenge to legal sufficiency. In re Commitment of Day, 342 S.W.3d

193, 206 (Tex. App.—Beaumont 2011, pet. denied) (citing Jackson, 443 U.S. at

319). When reviewing the factual sufficiency of the evidence in a civil case where


                                          9
 
 


the burden of proof is beyond a reasonable doubt, we weigh the evidence to

determine whether a verdict that is supported by legally sufficient evidence

nevertheless reflects a risk of injustice that compels ordering a new trial. See In re

Commitment of Myers, 350 S.W.3d 122, 130 (Tex. App.—Beaumont 2011, pet.

denied).

B. Analysis.

      Lujan argues that the evidence in this case is legally insufficient because

“[t]here is no such DSM-IV diagnosis, like Arambula’s, of ‘paraphilia NOS with

features of pedophilia and sadism[,]’” and because Dr. Arambula’s opinion is

“based almost entirely on uncross-examined hearsay which is inherently

unreliable.” To prevail on his legal sufficiency challenged, Lujan must show that

the evidence offers no basis to support the jury’s finding.

      Opinion testimony that is wholly conclusory or speculative amounts to no

evidence “because it does not tend to make the existence of a material fact ‘more

probable or less probable.’” City of San Antonio v. Pollock, 284 S.W.3d 809, 816

(Tex. 2009) (quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136

S.W.3d 227, 232 (Tex. 2004) (internal citation omitted)). Nevertheless, “when a

scientific opinion is admitted in evidence without objection, it may be considered

probative evidence even if the basis for the opinion is unreliable.” Pollock, 284

S.W.3d at 818. “But if no basis for the opinion is offered, or the basis offered


                                          10
 
 


provides no support, the opinion is merely a conclusory statement and cannot be

considered probative evidence, regardless of whether there is no objection.” Id.

      Lujan’s attorney cross-examined Dr. Arambula at the commitment trial

concerning the basis for and validity of his diagnoses. The jury, in its role as

factfinder, was free to assess the weight and credibility of the testimony on this

matter. Day, 342 S.W.3d at 207; Mullens, 92 S.W.3d at 887 (citing Barnes v. State,

876 S.W.2d 316, 321 (Tex. Crim. App. 1994)).

      With respect to Lujan’s argument on appeal that Dr. Arambula’s expert

opinion was “based almost entirely on uncross-examined hearsay which is

inherently unreliable[,]” the record before us reflects that Dr. Arambula relied upon

more than simply hearsay for his opinions, and he explained to the jury the basis

for his opinions.

      Additionally, we note that during the testimony of Dr. Arambula, as the

State’s attorney was questioning Dr. Arambula concerning the nature of Lujan’s

assault against C.L., Lujan’s attorney objected to the testimony on the basis of

hearsay. The trial court overruled the objection, and Lujan’s counsel then requested

a running objection and a limiting instruction. The court gave a limiting

instruction, which included the admonishment that “[s]uch evidence is admitted

only for the purpose of showing the basis of the expert’s opinion.” The jury charge




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also instructed the jury that hearsay from records reviewed by an expert was

admitted only to show the basis of the expert’s opinion.1

              Our rules of evidence provide that the facts or data on which an expert bases

his opinion should be “of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject,” but they need not be

admissible in evidence. Tex. R. Evid. 703. This Court has previously held that,

under Rule 705(a) of the Texas Rules of Evidence, an expert may disclose on

direct examination, or be required to disclose on cross-examination, the underlying

facts or data, and may discuss the defendant’s prior offenses as part of the basis for

the expert’s opinion. See, e.g., In re Commitment of Camarillo, No. 09-12-00304-

CV, 2013 Tex. App. LEXIS 7212, at **8-10 (Tex. App.—Beaumont June 13,

2013, no pet.) (mem. op.); Day, 342 S.W.3d at 197-99. Rule 705 states that “[i]f

otherwise inadmissible facts or data are disclosed before the jury, a limiting

instruction by the court shall be given upon request.” Tex. R. Evid. 705(d). We

have previously overruled this same or similar argument regarding the disclosure

of information on which the experts relied in forming their opinions. See In re

                                                            
              1
        We note that Lujan does not argue on appeal, and did not argue to the trial
court, that Dr. Arambula is not qualified as an expert witness under Texas Rule of
Evidence 702, nor does Lujan argue that Dr. Arambula relied on facts or data other
than what experts in the field reasonably rely upon in forming opinions or
inferences. The record reflects that Lujan did not object to Dr. Arambula’s
opinions during the trial on the basis that his opinions were unreliable or wholly
conclusory.
                                                               12
 
 


Commitment of Garcia, No. 09-12-00194-CV, 2013 Tex. App. LEXIS 14986, at

**15-17 (Tex. App.—Beaumont Dec. 12, 2013, pet. denied) (mem. op.); In re

Commitment of Reed, No. 09-11-00484-CV, 2012 Tex. App. LEXIS 2493, at **2-6

(Tex. App.—Beaumont Mar. 29, 2012, no pet.) (mem. op.); Day, 342 S.W.3d at

197-99. We presume the jury followed the court’s limiting instructions. Day, 342

S.W.3d at 199.

      The jury heard Dr. Arambula’s testimony that Lujan has a behavioral

abnormality that makes him likely to engage in predatory acts of sexual violence,

as well as evidence of Lujan’s risk factors, sexual offenses, and diagnoses. The

jury also heard Lujan’s testimony and admissions concerning his criminal history.

The jury was entitled to infer Lujan’s current dangerousness from Dr. Arambula’s

testimony, Lujan’s past behavior, and Lujan’s own testimony. See In re

Commitment of Lowe, No. 09-14-00098-CV, 2014 Tex. App. LEXIS 10034, at *5

(Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.); In re Commitment of

Wilson, No. 09-08-00043-CV, 2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—

Beaumont Aug. 27, 2009, no pet.) (mem. op.). As sole judge of the weight and

credibility of the evidence, the jury could reasonably conclude that Lujan suffers

from a behavioral abnormality that makes him likely to engage in a predatory act

of sexual violence. See Lowe, 2014 Tex. App. LEXIS 10034, at *6; see also

Wilson, 2009 Tex. App. LEXIS 6714, at *14; Mullens, 92 S.W.3d at 887. Viewing


                                       13
 
 


all of the evidence in the light most favorable to the verdict, a rational jury could

have found, beyond a reasonable doubt, that Lujan is a sexually violent predator;

and the evidence is legally sufficient to support the verdict. See Tex. Health &

Safety Code Ann. § 841.062(a); see also Mullens, 92 S.W.3d at 885-87. We

overrule Lujan’s first issue on appeal.

      In his second issue, Lujan contends that the evidence is factually insufficient

to support the jury’s verdict. As stated earlier, in this type of a civil matter we

weigh the evidence to determine “whether a verdict that is supported by legally

sufficient evidence nevertheless reflects a risk of injustice that would compel

ordering a new trial.” Day, 342 S.W.3d at 213; see also Myers, 350 S.W.3d at 130.

      In addition to the expert’s opinions, the jury heard evidence regarding

Lujan’s criminal history, including his sexual offenses and other criminal conduct.

Lujan denied he was actually guilty of the offenses for which he pleaded guilty,

and he denied any need for sex offender treatment. Dr. Arambula testified that

Lujan suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. Dr. Arambula diagnosed Lujan with “paraphilia

with features of pedophilia and with features of sadism[]” and “a personality

disorder with some antisocial features[.]” He also testified that sexual deviance is a

chronic condition. Dr. Arambula explained that Lujan has the following risk

factors: sexual deviance, a personality disorder with antisocial features, four


                                          14
 
 


convictions for sexually violent offenses, lack of insight, lack of sex offender

treatment, lack of remorse or guilt, and his denial that he needs sex offender

treatment. We conclude that the jury’s verdict is supported by factually sufficient

evidence. See Myers, 350 S.W.3d at 130 (citing Almaguer, 117 S.W.3d at 505-06).

We see nothing in the record that reflects a risk of injustice that would compel

ordering a new trial. We overrule Lujan’s second issue on appeal.

                                RIGHT TO COUNSEL

      In his third issue, Lujan contends that the trial court committed reversible

error by denying him the right to have his attorney present at the post-petition

psychiatric examination conducted by the State’s expert prior to trial. Lujan asserts

this issue presents a “de novo question of statutory construction,” and he argues

that this Court’s ruling in In re Commitment of Smith, 422 S.W.3d 802, 806 (Tex.

App.—Beaumont 2014, pet. denied), was based solely on a concession by Smith

that the SVP statute defines a civil commitment proceeding as a “trial or hearing”

and does not appear to encompass a post-petition psychiatric examination. We

overrule his third issue.

      We have previously stated that neither the SVP statute nor the Fourteenth

Amendment requires that counsel be present during a psychiatrist’s post-petition

examination. Id. at 807. In Smith, while we noted that Smith made a concession,

we did not use the concession as the basis for our holding. Id. at 804-07. Rather,


                                         15
 
 


our analysis in Smith considered numerous factors, including, but not limited to,

the following: that Smith had an attorney appointed to him prior to his post-petition

exam; that he failed to explain why his counsel could not adequately advise him

and protect his rights without being physically present at the examination; that he

never identified or complained about any improprieties that occurred in the

examination; and that he identified no testimony by the examining psychiatrist that

would not have been obtained if his counsel had been present. Id. at 805-06.

Furthermore, Smith gave no explanation of how he was harmed. Id. at 807.

Similarly, Lujan had an attorney appointed to him prior to his post-petition exam,

Lujan has failed to explain why his counsel could not adequately advise him and

protect his right without being physically present at the examination, and he, too,

has not identified any testimony by the examining psychiatrist that would not have

been obtained if his attorney had been present, nor has he established how he was

harmed by not having his attorney attend the examination. We have also

subsequently applied our analysis in Smith in cases wherein no concession was

present in the record. See In re Commitment of Slama, 2014 Tex. App. LEXIS

12543, at **2-3 (Tex. App.—Beaumont Nov. 20, 2014, no pet.) (mem. op.); In re

Commitment of Edwards, 443 S.W.3d 520, 529 (Tex. App.—Beaumont 2014, pet.

denied); In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex. App.

LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. denied) (mem. op.);


                                         16
 
 


In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex. App. LEXIS

3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.); see

also In re Commitment of Wirtz, No. 14-13-00945-CV, 2014 Tex. App. LEXIS

11931, at **10-16 (Tex. App.—Houston [14th Dist.] Oct. 30, 2014, no pet.). We

decline to revisit our previous rulings. For the reasoning discussed in Smith and

reaffirmed in the foregoing cases, we overrule Lujan’s third issue.

                                                               IN RE COMMITMENT OF RICHARD

              In his fourth and final issue, Lujan argues that this Court’s decision in In re

Commitment of Richard, 2014 Tex. App. LEXIS 6974, renders Chapter 841

unconstitutional. We recently addressed and rejected this same argument. See In re

Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1085 (Tex.

App.—Beaumont Feb. 5, 2015, no pet. h.) (mem. op.). For the reasons discussed in

Lucero, we conclude that Lujan has not shown that the SVP statute is

unconstitutional. We overrule Lujan’s fourth issue.2

              Having overruled all of Lujan’s issues on appeal, we affirm the trial court’s

judgment.
                                                            
              2
       Lujan complains that the ruling in Richard allows the civil commitment of a
person who has not been diagnosed with any mental disorder or condition. But the
record demonstrates that Dr. Arambula diagnosed Lujan with a mental disorder or
condition, finding that he had a sexual deviance (paraphilia with features of
pedophilia and sadism), and a personality disorder with antisocial features, and
Arambula concluded that Lujan has a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence.
 

                                                                           17
 
 


      AFFIRMED.




                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on December 29, 2014
Opinion Delivered February 19, 2015

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




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