                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-19-00064-CR

GARY MCGRUDER,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                            From the 85th District Court
                                Brazos County, Texas
                          Trial Court No. 17-04501-CRF-85


                            MEMORANDUM OPINION


       In three issues, appellant, Gary Wayne McGruder, challenges his conviction for

burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (West 2019).

Specifically, McGruder contends that: (1) the trial court erred by failing to suppress

statements made as a result of custodial interrogation prior to his arrest; (2) the trial court

erred by refusing to instruct the jury on the lesser-included offense of theft; and (3) there
is not sufficient evidence to support his conviction.           Because we overrule all of

McGruder’s issues on appeal, we affirm.

                            I.     MCGRUDER’S MOTION TO SUPPRESS

          In his first issue, McGruder asserts that he was subjected to extensive interrogation

before he had been advised of his rights not to speak to officers and to have an attorney

present during questioning.          Because of this purported constitutional violation,

McGruder contends that the trial court erred by failing to suppress statements made as a

result of the alleged custodial interrogation.

A.        Standard of Review

          We review a trial court's ruling on a motion to suppress evidence for an abuse of

discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the

zone of reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.

2014); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give almost complete

deference to the trial court's determination of historical facts, but we review the court's

application of the law to those facts de novo. Story, 445 S.W.3d at 732; Dixon, 206 S.W.3d

at 590.

B.        Applicable Law

          In deciding whether an individual was in custody, we take the findings that are

supported by the record and determine whether they constitute a Miranda custody

situation as a matter of law. State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013).


McGruder v. State                                                                        Page 2
Central to this issue is whether McGruder demonstrated that his questioning by law

enforcement at the scene was a “custodial interrogation.” The defendant bears the

burden of proving that a statement was the product of a custodial interrogation. Herrera

v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Custodial interrogation refers to

“questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.” Miranda

v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda provides that

a defendant's statements “stemming from custodial interrogation” are inadmissible as

evidence against him unless he is advised of certain constitutional rights under the Fifth

Amendment. Id. (“Prior to any questioning, the person must be warned that he has a

right to remain silent, that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney, either retained or appointed.”);

see U.S. CONST. amend. V.

       The state counterpart is article 38.22 of the Code of Criminal Procedure, which

similarly provides that a defendant's oral statement “made as a result of custodial

interrogation” is inadmissible in a criminal proceeding unless a recording is made of the

statement, the defendant is warned during the recording but before making the statement

that “any statement he makes may be used as evidence against him in court,” and he

knowingly, intelligently, and voluntarily waives those rights. TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 3(a)(1)-(2) (West 2018); see Herrera, 241 S.W.3d at 526 (stating that


McGruder v. State                                                                      Page 3
construction of “custody” for purposes of article 38.22 of Texas Code of Criminal

Procedure is consistent with meaning of "custody" for purposes of Miranda and Fifth

Amendment).         Statements that do not “stem from custodial interrogation” are not

precluded by article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5.

       In Dowthitt, the Court of Criminal Appeals identified four situations that may

constitute custody: (1) when the suspect is physically deprived of his freedom of action

in any significant way; (2) when a law-enforcement officer tells the suspect that he cannot

leave; (3) when law-enforcement officers create a situation that would lead a reasonable

person to believe that his freedom of movement has been significantly restricted; and (4)

when there is probable cause to arrest and law-enforcement officers do not tell the suspect

that he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

Regarding the first through third situations, the restriction on the suspect's freedom of

movement must be to the degree associated with an arrest as opposed to an investigative

detention. Id.

       Noncustodial investigative detentions and arrests both involve a restraint on an

individual's freedom of movement, but an arrest involves a comparatively greater

restraint. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). No bright-line

test distinguishes investigative detentions from arrests; rather, courts consider several

factors to determine whether an individual is in custody, including the amount of force

displayed; the duration of the detention; the efficiency of the investigative process and


McGruder v. State                                                                    Page 4
whether it is conducted at the original location or the individual is transported to another

location; the officer's expressed intent, i.e., whether he told the individual that he was

under arrest or was being detained only for a temporary investigation; and any other

relevant factors. Id. at 291. A detention is not an arrest if the degree of incapacitation is

no more than necessary to safeguard the officers and assure the suspect's presence during

a period of investigation. See id. Ultimately, courts must determine whether, given the

circumstances surrounding the interrogation, a reasonable person would have perceived

detention by law-enforcement officers to be a restraint on his movement comparable to

the restraint of formal arrest. Berkemer v. McCarty, 468 U.S. 420, 441, 104 S. Ct. 3138, 82 L.

Ed. 2d 317 (1984); Herrera, 241 S.W.3d at 525. Assessment of whether an individual is in

custody is made on an ad hoc, case-by-case basis. Dowthitt, 931 S.W.2d at 255.

C.     Discussion

       At the hearing on McGruder’s motions to suppress, Officer Jason Arnold of the

College Station Police Department testified that he was serving as a courtesy officer for

the Cedar Ridge apartment complex. During his night patrol, at 4:30 a.m., Officer Arnold

saw a male, later identified as McGruder, in dark clothing walking quickly from Building

5. Officer Arnold noticed that McGruder was carrying a flat-screen television and was

quickly trying to exit the apartment complex. When Officer Arnold caught up with

McGruder, Officer Arnold noticed that McGruder also “had things stuffed in his shirt”




McGruder v. State                                                                       Page 5
and suspected that McGruder was “burglarizing the complex.” Officer Arnold detained

McGruder “due to his furtive movements.”

       In the interest of officer safety, Officer Arnold requested that McGruder remove

the items stuffed in his shirt. McGruder complied and removed an Apple TV box, a DVD

player, a pair of flip flops, and a cell phone from under his shirt. Officer Arnold recounted

that both the Apple TV box and DVD player had wires connected to them, “as if they had

just been removed from whatever device they were connected to.”

       At this point, Officer Arnold requested identification from McGruder.

McGruder’s driver’s license indicated that he did not live at the Cedar Ridge apartment

complex. Next, Officer Arnold asked dispatch to run a criminal history on McGruder,

which took some time.        While waiting for dispatch, Officer Arnold interviewed

McGruder “about his night, his whereabouts, where he was coming from, where he was

trying to go, where he had obtained the items from.” Officer Arnold recounted that he

told McGruder that he was being detained and not arrested at this time. McGruder

acknowledged that he understood and consented to a search of his person. No other

contraband was found on McGruder’s person.

       Thereafter, Officer Arnold turned on the cell phone and determined that

McGruder was not the owner of the cell phone. Officer Arnold, his partner, Officer

Kofoet, and other officers who arrived began canvassing the apartment complex “looking

for entered vehicles, entered residences,” so that the property could be returned to its


McGruder v. State                                                                      Page 6
rightful owner. Officers eventually discovered an open window to one of the apartments.

Suspecting that the items in McGruder’s possession were stolen from this apartment,

officers sought to contact the apartment occupant, Jiacheng Lu. They had difficulty

contacting Lu at first, but eventually were able to do so with the help of a neighbor. Lu

identified as hers the flat-screen television, the Apple TV box, and the DVD player. The

cell phone and flip flops belonged to someone else.

       In any event, Lu indicated that she wished to press charges, and McGruder was

subsequently placed under arrest.      Officer Arnold testified that the detention of

McGruder lasted approximately an hour and a half, but that entire detention involved a

continuous investigation of the situation. It was during the detention and continuous

investigation that McGruder made certain recorded statements to Officer Arnold, which

were the subject of the motions to suppress.

       Based on the evidence adduced during the suppression hearing, we cannot say

that McGruder’s statements to officers were the product of custodial interrogation, which

required Officer Arnold to administer Miranda warnings prior to questioning McGruder.

Our conclusion is premised on the following facts: (1) Officer Arnold had reasonable

suspicion to detain McGruder for an investigative detention; (2) Officer Arnold

specifically told McGruder that he was not under arrest, but rather was being detained

for purposes of the investigation; (3) McGruder’s detention occurred in the parking lot

where McGruder was discovered with the items and did not involve him being


McGruder v. State                                                                  Page 7
handcuffed or placed in a patrol vehicle; rather, he merely sat on the ground while the

police investigated the suspected burglary; and (4) the length of the detention involved a

continuous investigation of the situation to determine whether a crime had been

committed. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 889 (1968); Sheppard,

271 S.W.3d at 289 (noting that while a person is not free to leave during a temporary

detention, the detention allows for an officer to investigate whether a crime had been

committed and does not constitute a custodial arrest); see also Akins v. State, 202 S.W.3d

879, 885 (Tex. App.—Fort Worth 2006, pet. ref’d) (noting that investigative detention

must last no longer than necessary to effectuate the purpose of the stop and must involve

actual investigation).

       This evidence touches on virtually all of the Sheppard factors and demonstrates that

officers employed minimal force; the length of the detention was only as long as

necessary to investigate whether a crime had been committed; the detention was

conducted where Officer Arnold first saw McGruder; and Officer Arnold specifically

informed and McGruder acknowledged that this was merely an investigative detention

and not a formal arrest. Sheppard, 271 S.W.3d at 290; see Rhodes v. State, 945 S.W.2d 115,

117 (Tex. Crim. App. 1997) (“The officer’s testimony is a factor to be considered, along

with the other facts and circumstances of the detention, in determining whether an arrest

has taken place.”); but see Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San Antonio

1998, pet. ref’d) (stating that a police officer’s subjective view does not bear upon the


McGruder v. State                                                                      Page 8
question of whether a suspect is in custody for purposes of Miranda if the subjective view

is not disclosed by the officer to the suspect). Therefore, viewing the evidence in the light

most favorable to the trial court’s ruling, we conclude that McGruder’s statements were

the product of a temporary detention, not a custodial interrogation. Thus, Miranda

warnings were not required. See Dowthitt, 931 S.W.2d at 263. And based on the foregoing,

we conclude that the trial court did not abuse its discretion by denying McGruder’s

motion to suppress. See Story, 445 S.W.3d at 732; see also Dixon, 206 S.W.3d at 590. We

overrule McGruder’s first issue.

                                   II.    THE JURY CHARGE

       In his second issue, McGruder argues that the trial court erred by refusing to issue

an instruction in the jury charge on the lesser-included offense of theft. Specifically,

McGruder asserts that there was more than a scintilla of evidence supporting a finding

that he did not enter the victim’s residence; therefore, the jury should have been

instructed on theft.

       We review a trial court's refusal to include a lesser-included-offense instruction

for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004). An offense is a lesser-included offense if, among other things, it is established by

proof of the same or less than all the facts required to establish the commission of the

offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Hall v. State,

225 S.W.3d 524, 527 (Tex. Crim. App. 2007). The Court of Criminal Appeals has set forth


McGruder v. State                                                                      Page 9
a two-step analysis to determine whether a defendant is entitled to a lesser-included-

offense instruction. Hall, 225 S.W.3d at 535-36; Jones v. State, 241 S.W.3d 666, 670 (Tex.

App.—Texarkana 2007, no pet.). Under the "cognate-pleadings" test, as set forth in Hall,

the first step concerns whether a lesser-included offense exists based on a comparison of

the greater offense, as contained in the charging document, and the lesser offense,

without looking to the evidence adduced in that particular case. Hall, 225 S.W.3d at 526;

Jones, 241 S.W.3d at 670. “This is a question of law, and it does not depend on the evidence

to be produced at trial.” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Only

after the first step is answered positively do we proceed to the second step of conducting

an inquiry concerning whether there was sufficient evidence at trial to have required the

court to submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at

670-71.

       The State concedes, and we agree, that the offense of theft can be a lesser-included

offense of burglary. See Phillips v. State, 178 S.W.3d 78, 82 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d) (“The offenses of theft and criminal trespass can be lesser-included

offenses of burglary.” (internal citations omitted)). We therefore proceed to the second

step in the Hall analysis.

       Step two of the Hall analysis involves the consideration of whether there is some

evidence that would permit a rational jury to find that, if McGruder is guilty, he is guilty

only of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012);


McGruder v. State                                                                     Page 10
see also Hall, 225 S.W.3d at 536. “This second step is a question of fact and is based on the

evidence presented at trial.” Cavazos, 382 S.W.3d at 383. A defendant is entitled to a

lesser-included-offense instruction if some evidence from any source raises a fact issue

on whether he is guilty of only the lesser offense, regardless of whether such evidence is

weak, impeached, or contradicted. Id. However, a defendant is not entitled to a lesser-

included-offense instruction simply because the evidence supporting the greater offense

is weak, the evidence supporting the greater charge is discredited or weakened during

cross-examination, or the jury might disbelieve crucial evidence pertaining to the greater

offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). That is, “there must

be some evidence directly germane to a lesser included offense for the factfinder to

consider before an instruction on a lesser included offense is warranted.” Id. “The

evidence must establish the lesser-included offense as ‘a valid, rational alternative to the

charged offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).

       Contrary to McGruder’s assertion, the record does not contain evidence

demonstrating that if McGruder is guilty, he is guilty only of the lesser included offense

of theft. Specifically, McGruder relies on the fact that the record does not show that he

used burglar tools or nondescript clothing during the commission of the offense.

However, the failure to recover evidence is not sufficient to warrant an instruction on the

lesser-included offense. See Cavazos, 382 S.W.3d at 385 (holding that a defendant is not

entitled to a jury instruction on a lesser-included offense based on mere speculation; “it


McGruder v. State                                                                     Page 11
requires affirmative evidence that both raises the lesser-included offense and rebuts or

negates an element of the greater offense”); see also Hampton v. State, 109 S.W.3d 437, 441

(Tex. Crim. App. 2003) (holding that the trial court erred in submitting an instruction on

the lesser-included offense of sexual assault because the failure to find or retrieve a knife

matching the description given by the complainant is not “affirmative evidence” that no

knife was used during the assault). We cannot say that McGruder proffered more than a

scintilla of evidence supporting the requested instruction.

       Additionally, Officer Arnold testified that McGruder denied taking the items from

someone and stated that he got the items from a dumpster, despite the fact that none of

the items were grimy, McGruder’s clothes did not appear to be soiled, and several of the

items had cords and brackets hanging from them. McGruder’s statement to police

regarding the items found in a dumpster amounts to a denial that any criminal offense

occurred at all. Indeed, by asserting that he found the items in the dumpster, McGruder

suggested that these items were abandoned property and, thus, negated all of the

elements of burglary and theft. Accordingly, we cannot say that McGruder’s statements

to police regarding the items found in the dumpster constitutes affirmative evidence that

he was guilty of only theft. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001)

(“A defendant’s own testimony that he committed no offense, or testimony that

otherwise shows that no offense occurred at all, is not adequate to raise the issue of a

lesser-included offense.”). We therefore conclude that, based on our review of the


McGruder v. State                                                                     Page 12
evidence, McGruder has failed to establish the second step in Hall. See Cavazos, 382

S.W.3d at 383; Hall, 225 S.W.3d at 536; Bignall, 887 S.W.2d at 24. Accordingly, we cannot

say that the trial court abused its discretion by refusing to issue an instruction in the

charge of the lesser-included offense of theft. See Threadgill, 146 S.W.3d at 666. We

overrule McGruder’s second issue.

                               III.   SUFFICIENCY OF THE EVIDENCE

       In his third issue, McGruder contends that the evidence supporting his conviction

is insufficient because the State failed to establish beyond a reasonable doubt that he was

the individual who entered Lu’s residence where the stolen property had been. We

disagree.

A.     Standard of Review

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

            When addressing a challenge to the sufficiency of the evidence, we
            consider whether, after viewing all of the evidence in the light most
            favorable to the verdict, any rational trier of fact could have found the
            essential elements of the crime beyond a reasonable doubt. Jackson v.
            Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
            State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
            the appellate court to defer “to the responsibility of the trier of fact fairly
            to resolve conflicts in the testimony, to weigh the evidence, and to draw
            reasonable inferences from basic facts to ultimate facts.” Jackson, 443
            U.S. at 319. We may not re-weigh the evidence or substitute our
            judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
            (Tex. Crim. App. 2007). The court conducting a sufficiency review must
            not engage in a “divide and conquer” strategy but must consider the
            cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
McGruder v. State                                                                             Page 13
           juries may not speculate about the meaning of facts or evidence, juries
           are permitted to draw any reasonable inferences from the facts so long
           as each inference is supported by the evidence presented at trial. Cary
           v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
           U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
           2007). We presume that the factfinder resolved any conflicting
           inferences from the evidence in favor of the verdict, and we defer to that
           resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
           This is because the jurors are the exclusive judges of the facts, the
           credibility of the witnesses, and the weight to be given to the testimony.
           Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
           evidence and circumstantial evidence are equally probative, and
           circumstantial evidence alone may be sufficient to uphold a conviction
           so long as the cumulative force of all the incriminating circumstances is
           sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
           (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

           We measure whether the evidence presented at trial was sufficient to
           support a conviction by comparing it to “the elements of the offense as
           defined by the hypothetically correct jury charge for the case.” Malik v.
           State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
           correct jury charge is one that “accurately sets out the law, is authorized
           by the indictment, does not unnecessarily increase the State's burden of
           proof or unnecessarily restrict the State's theories of liability, and
           adequately describes the particular offense for which the defendant was
           tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim.
           App. 2013). The “law as authorized by the indictment” includes the
           statutory elements of the offense and those elements as modified by the
           indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

B.     Discussion

       Under section 30.02 of the Penal Code, a person commits burglary of a habitation

“if, without the effective consent of the owner, the person . . . enters a habitation, or a

building (or any portion of a building) not then open to the public, with intent to commit


McGruder v. State                                                                         Page 14
a felony, theft, or an assault . . . .” TEX. PENAL CODE ANN. § 30.02. Direct evidence of entry

is not required; that element may be established by inference, just as inferences may be

used to prove the elements of any other offense. Poncio v. State, 185 S.W.3d 904, 905 (Tex.

Crim. App. 2006); see Reyes v. State, 422 S.W.3d 18, 24 (Tex. App.—Waco 2013, pet. ref’d).

A defendant’s unexplained possession of property recently stolen from a residence

permits an inference that the defendant is the one who committed the burglary. Poncio,

185 S.W.3d at 905; see Reyes, 422 S.W.3d at 24.

        Generally, if a defendant offers an explanation for his possession of the stolen

property, the record must demonstrate that the explanation is false or unreasonable.

Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977); see Reyes, 422 S.W.3d at 24.

Whether a defendant’s explanation for possession of recently stolen property is true or

reasonable is an issue to be determine by the trier of fact. Adams, 552 S.W.2d at 815; see

Reyes, 422 S.W.3d at 24. The falsity or unreasonableness of an explanation may be shown

by circumstantial evidence. Adams, 552 S.W.2d at 815; see Reyes, 422 S.W.3d at 24.

        In the instant case, Jiacheng Lu testified that she left her apartment around 8:00 or

9:00 p.m. on the night of September 14, 2017, to visit a friend. When she left, one of the

windows in her apartment was open and her property was inside where she left it.1 When




        1 Lu recounted that she left her apartment that evening because maintenance workers at the
apartment complex had repaired her bathtub and advised her to stay somewhere else for three days due
to the bad smell of chemicals used during the repair. Lu left a window open in the apartment to dissipate
the chemical smell faster.

McGruder v. State                                                                                Page 15
contacted by the police in the early morning hours of September 15, 2017, Lu told police

that several items were missing from her apartment. She later identified the flat-screen

television, the Apple TV box, and the DVD player in McGruder’s possession as being

those taken from her apartment. Lu stated that she did not give McGruder consent to

enter her apartment, and she denied throwing her property away in a dumpster.

       Further, as mentioned earlier, McGruder was detained by police while carrying

Lu’s flat screen television across the apartment complex at night. Moreover, McGruder

was in possession of Lu’s DVD player and Apple TV box concealed under his shirt.

Officer Arnold recounted that neither McGruder nor the items in his possession were

dirty, grimy, or appeared as if they had been in a dumpster. Furthermore, the devices

still had cords and brackets attached, thus supporting an inference that they had been

hastily removed.

       In addition to the foregoing, the jury was shown surveillance video of McGruder

wandering around the apartment complex and approaching apartment doors, apparently

seeking an easy target. McGruder was observed approaching Lu’s apartment on the

surveillance video, and a short time later, Officer Arnold saw McGruder carrying Lu’s

flat-screen television.

       Based on the above evidence, the jury was permitted to disbelieve McGruder’s

explanation that he found Lu’s property in a dumpster and to infer that McGruder

committed the burglary based on his possession of Lu’s recently-stolen property. See


McGruder v. State                                                                Page 16
Poncio, 185 S.W.3d at 905; Adams, 552 S.W.2d at 815; see also Reyes, 422 S.W.3d at 24.

Therefore, viewing the evidence in the light most favorable to the jury’s verdict, a rational

factfinder could have found beyond a reasonable doubt that McGruder burglarized Lu’s

apartment. See TEX. PENAL CODE ANN. § 30.02; see also Jackson, 443 U.S. at 318-19, 99 S. Ct.

at 2781; Zuniga, 551 S.W.3d at 732-33. Accordingly, we hold that the evidence supporting

McGruder’s conviction is sufficient. See TEX. PENAL CODE ANN. § 30.02; see also Jackson,

443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33. We overrule McGruder’s

third issue.

                                     IV.    CONCLUSION

       Having overruled all of McGruder’s issues on appeal, we affirm the judgment of

the trial court.




                                                  JOHN E. NEILL
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed January 22, 2020
Do not publish
[CRPM]




McGruder v. State                                                                     Page 17
