                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NO. 2-08-276-CR


SAMUEL LEE HILBURN                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                                    OPINION

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                                  I. Introduction

      Appellant Samuel Lee Hilburn appeals his conviction for intoxication

manslaughter.1 He contends in four points that the evidence is legally and factually

insufficient to prove beyond a reasonable doubt that he caused a police officer’s

death “by driving his vehicle into and against” the officer’s patrol car or that his

vehicle constituted a deadly weapon. W e affirm.




      1
           See Tex. Penal Code Ann. § 49.08(a) (Vernon Supp. 2009).
                              II. Factual Background

      In the early morning hours of December 17, 2006, Adriana Delgadillo was

driving south on Interstate 35 in Fort W orth when she noticed her car had a flat tire.

She pulled onto the right shoulder of the highway and called a friend, Roy Delgado,

to assist her. Delgado arrived within five minutes and parked his pickup truck on the

shoulder in front of Delgadillo’s car. Delgado tried to remove the tire but could not

because it had a lock on it, so Delgadillo called for roadside assistance.

      Fort W orth Police Officer Dwayne Freeto arrived shortly thereafter and parked

his patrol car on the shoulder behind Delgadillo’s car, but he left his patrol car’s

emergency lights on while he also tried to remove the flat tire from Delgadillo’s car.

Officer Freeto was also unable to remove the tire, so he told Delgadillo he would wait

until roadside assistance arrived. Officer Freeto went back to his patrol car, and

Delgadillo and Delgado sat in Delgadillo’s car to wait for roadside assistance. W hile

they waited, Appellant’s car rear-ended Officer Freeto’s patrol car. Officer Freeto’s

patrol car immediately erupted into flames, with Officer Freeto trapped inside.

Delgado exited Delgadillo’s car, ran back to the patrol car, and unsuccessfully tried

to break the driver-side window with his fists. He then retrieved the vehicle jack from

Delgadillo’s car and used it to break the passenger-side window on the patrol car.

      Officer Rockney Malone, a Fort W orth vice officer whose shift had ended at

3:00 a.m., was driving home from work when Appellant’s vehicle passed him at a




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high rate of speed.2 Officer Malone watched Appellant’s vehicle crash into Officer

Freeto’s patrol car, causing an instant explosion. Officer Malone pulled over and

saw Appellant get out of his car, take a couple steps, fall down, and roll onto his

back. Officer Malone dragged Appellant onto the shoulder of the road and ran to

Officer Freeto’s patrol car but could not see inside because of the smoke. Another

driver, Jimmy Ozuna, also stopped to help, and Officer Malone, Delgado, and Ozuna

tried to break the patrol car’s windows to rescue Officer Freeto from the fire. Ozuna

testified that he could see Officer Freeto moving inside the patrol car.

      Robert McDonald, a certified EMT, drove up to the scene and stopped to help.

McDonald sprayed a small fire extinguisher through the broken passenger window.

The fire extinguisher helped only momentarily; the fire completely engulfed the patrol

car. The paramedics on the scene then pulled everyone back from the patrol car

and said there was nothing more anyone could do.

      McDonald then turned his attention to Appellant. McDonald could see that

Appellant had cuts and abrasions on his hands and arms and burns on his face and

head. Appellant was conscious, coherent, and answered McDonald’s questions

appropriately without slurring his words, but McDonald could smell the odor of

alcohol on Appellant’s breath. Appellant was taken to the hospital for treatment of

his injuries. W hile he was there, hospital nurses took samples of Appellant’s blood



      2
        Two other witnesses testified that Appellant’s car had passed them at a
high rate of speed just before colliding with Officer Freeto’s patrol car.

                                          3
at the investigating officer’s request. The toxicologist testified that, based on the

blood draws, she believed Appellant had a blood-alcohol level between 0.18 and

0.22 at the time of the collision.

        At Appellant’s trial, accident reconstructionist Tim Lovett testified that

Appellant was driving more than ninety-seven miles per hour at the time of the

collision. Lovett testified that the emergency lights on Officer Freeto’s patrol car

would have been visible at a distance of 1,250 feet, meaning Appellant, even at

ninety-seven miles per hour, had more than eight seconds to take action to avoid a

collision with Officer Freeto’s patrol car. Despite the reaction time, Lovett saw no

physical evidence that Appellant had tried to brake or steer evasively to avoid the

collision. Lovett also testified that the patrol car had caught fire because Appellant

drove his vehicle into the back of the patrol car.

        The chief medical examiner for Tarrant County, Dr. Nizam Peerwani, testified

at trial that Officer Freeto was alive when the fire in his patrol car started and that he

had died from inhaling hot air, poisonous gases, fumes, and smoke. He stated that

Officer Freeto did not die of blunt force trauma, but he also testified that Officer

Freeto had “died as a result of the impact which – which caused the fire.” Dr.

Peerwani testified that the official cause of death was a motor vehicle collision with

fire.

        Ashley W oodall, Lauren Coffman, and Daniel Escamilla testified for Appellant

at trial. They explained that the three of them and Appellant had gone to two


                                            4
different clubs in Fort W orth beginning at around 11 p.m. and ending at around 3

a.m. They testified that they saw Appellant drink one beer that evening and that

Appellant did not appear to be intoxicated or show any outward signs of being

intoxicated.

                           III. Procedural Background

      A grand jury indicted Appellant in March 2007. The indictment alleged that

Appellant had “operate[d] a motor vehicle in a public place while intoxicated, and did

by reason of such intoxication cause the death of another, Dwayne Freeto, through

accident and mistake, namely: by driving said motor vehicle into and against a motor

vehicle occupied by the said Dwayne Freeto.” The indictment also alleged that

Appellant had used his motor vehicle as a deadly weapon. Appellant pleaded not

guilty, but at the conclusion of his jury trial, the jury returned a verdict of guilty,

answered affirmatively to the deadly weapon special issue, and assessed

punishment at thirteen years’ confinement. The trial court sentenced Appellant

accordingly.

                             IV. Standards of Review

A. Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether 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

                                          5
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789;

Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon

1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine whether the

necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App. 2007). W e must presume

that the factfinder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W .3d at 778.

B. Factual Sufficiency

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,


                                           6
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).      W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204

S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

                                    V. Analysis

A. Alleged Variance Between Indictment and Proof

      Appellant contends in his first and second points that the evidence is legally

and factually insufficient to prove he caused Officer Freeto’s death by “driving his

vehicle into and against” Officer Freeto’s patrol car. Appellant argues the indictment


                                          7
required the State to prove Officer Freeto died from the impact between the vehicles

and contends the State proved Officer Freeto died from the fire, not the impact.

Appellant therefore argues there is a fatal variance between the indicted offense and

the proof adduced at trial.

      A variance occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial. Gollihar v. State, 46 S.W .3d 243, 246

(Tex. Crim. App. 2001). In a variance situation, the State proves the defendant guilty

of a crime, but proves the crime’s commission in a manner that differs from the

allegations in the charging instrument. Id. But not all variances are material or fatal.

Id. at 257. A variance between the wording of an indictment and the evidence

presented at trial is fatal only if it is material and prejudices the defendant’s

substantial rights. Id.; see Fuller v. State, 73 S.W .3d 250, 253 (Tex. Crim. App.

2002). In reviewing the materiality of such a variance, we must determine whether

the variance deprived the defendant of notice of the charges and whether the

variance subjects the defendant to the risk of being prosecuted later for the same

crime. Fuller, 73 S.W .3d at 253; Gollihar, 46 S.W .3d at 257.

      In Megas v. State, Megas argued there was a fatal variance between his

indictment and the proof at his trial because the indictment charged him with causing

his passenger’s death by colliding into a concrete barrier but the evidence at trial

suggested the passenger died when Megas’s car landed on her. 68 S.W .3d 234,




                                           8
241 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).        Rejecting Megas’s fatal

variance argument, the court explained:

             The medical examiner testified the injuries that killed [the
      passenger] were caused by the car’s colliding with the concrete barrier.
      Officer Leslie Stafford testified that the car collided with the concrete
      barrier, causing [the passenger] to be partially ejected out of the car,
      and that when the car flipped on its roof, it rolled on top of [the
      passenger] and crushed her. Stafford also testified that the car would
      not have flipped over and crushed [the passenger] if [Megas] had not
      hit the concrete barrier with his car.

              The cause of [the passenger’s] death is directly related to
      appellant’s striking the concrete barrier. The indictment charges the
      cause of death as colliding with the barrier, and the evidence shows the
      collision did cause the death of [the passenger]. The variance is not
      material.

Id. (citations omitted).

      Here, the indictment alleged in relevant part that Appellant had caused Officer

Freeto’s death by driving his motor vehicle “into and against a motor vehicle

occupied by the said Dwayne Freeto.” Although the medical examiner testified that

Officer Freeto did not die from blunt force trauma, the medical examiner explained

that Officer Freeto had “died as a result of the impact which – which caused the fire.”

The accident reconstructionist similarly testified Officer Freeto’s patrol car had

caught fire because Appellant drove his vehicle into the back of the patrol car. Even

assuming the indictment’s “into and against” language required the State to prove

the impact between the two vehicles caused Officer Freeto’s death, we hold the

variance, if any, between the indictment and the proof adduced at trial is not



                                           9
material.3 See id. Moreover, Appellant has not explained how the alleged variance

prevented him from preparing a defense or how he could be prosecuted again under

the same facts. See Fuller, 73 S.W .3d at 253; Megas, 68 S.W .3d at 241. W e will

therefore disregard the alleged variance in determining whether the evidence is

sufficient to prove Appellant caused Officer Freeto’s death by driving his vehicle “into

and against” Officer Freeto’s patrol car.

      1. The Evidence is Legally Sufficient

      A person commits intoxication manslaughter if the person (1) operates a motor

vehicle in a public place, (2) is intoxicated, and (3) by reason of that intoxication

causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08.

Appellant argues only that the evidence is legally insufficient to prove he caused

Officer Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol

car; he does not contend the evidence is legally insufficient to prove that he operated

a motor vehicle in a public place, that he was intoxicated, or that his intoxication

caused him to drive his vehicle into Officer Freeto’s patrol car.

      The record contains legally sufficient evidence that Appellant caused Officer

Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol car.

Two witnesses, Officer Malone and Ozuna, testified that they had seen Appellant’s



      3
       Because we hold the variance, if any, is not material, we do not address
whether the alleged variance prejudiced Appellant’s substantial rights. See Gollihar,
46 S.W .3d at 246 (holding variance fatal only if it is material and prejudices the
defendant’s substantial rights).

                                            10
car collide into the rear of Officer Freeto’s patrol car and that they saw an immediate

explosion. Lovett, the accident reconstructionist, testified that the impact between

Appellant’s vehicle and Officer Freeto’s patrol car had caused the fuel in the patrol

car’s fuel tank to spray out of the fuel tank. The escaping fuel ignited from sparks

caused by metal scraping the roadway or from contact with hot exhaust pipes.

Lovett testified that the flames were a direct result of the impact between Appellant’s

vehicle and Officer Freeto’s patrol car. Dr. Peerwani testified that Officer Freeto had

“died as a result of the impact . . . which caused the fire.”

       Viewing the evidence in a light most favorable to the prosecution, a rational

jury could have determined beyond a reasonable doubt that Appellant had caused

Officer Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol

car. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778.

W e hold the evidence was legally sufficient to support the jury’s verdict. W e overrule

Appellant’s first point.

       2. The Evidence is Factually Sufficient

       Reviewing all the evidence in a neutral light, we recall that Officer Freeto’s

patrol car was a Ford Crown Victoria and that the State’s expert acknowledged a

past problem with Crown Victorias exploding when hit from behind. Moreover, Dr.

Peerwani testified that Officer Freeto was alive when the fire in his patrol car started

and that he did not die of blunt force trauma; Dr. Peerwani explained that Officer

Freeto had died from inhaling hot air, poisonous gases, fumes, and smoke.


                                          11
However, Dr. Peerwani also testified that the official cause of death was a motor

vehicle collision with fire and that Officer Freeto had “died as a result of the impact

which – which caused the fire.” Officer Malone and Ozuna testified the explosion

had occurred immediately upon impact, Delgado testified the patrol car was already

on fire before it collided with Delgadillo’s car, and Lovett testified the fire would not

have occurred without the impact. Lovett also testified that the recall for the fire

problem in Crown Victorias was for the 1999 through 2003 models and that Officer

Freeto’s Crown Victoria was a 2005 model.

      Viewing the evidence in a neutral light, we conclude a rational trier of fact

could have found beyond a reasonable doubt that Appellant had caused Officer

Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol car.

W e cannot say that the evidence is so weak that the jury’s determination was clearly

wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the

evidence supporting the conviction that the jury’s determination is manifestly unjust.

See Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008); W atson, 204

S.W .3d at 414–15, 417. W e therefore hold the evidence was factually sufficient to

support the jury’s verdict. W e overrule Appellant’s second point.

B. Appellant’s Vehicle as a Deadly Weapon

      Appellant argues in his third and fourth points that the evidence was legally

and factually insufficient to prove beyond a reasonable doubt that his vehicle

constituted a deadly weapon. A deadly weapon is anything that in the manner of its


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use or intended use is capable of causing death or serious bodily injury. Tex. Penal

Code Ann. § 1.07(a)(17) (Vernon Supp. 2009). “It is reasonably clear that driving an

automobile constitutes the use of it and that driving [an automobile] in a manner

capable of causing death or serious bodily injury constitutes [the automobile] a

deadly weapon.” Tyra v. State, 897 S.W .2d 796, 798 (Tex. Crim. App. 1995).

      1. Appellant’s Contentions

      Appellant concedes a motor vehicle can be a deadly weapon. Instead, he

argues there can be no “intended use” of the motor vehicle when the indictment

alleges the offense occurred through “accident and mistake.” However, the court of

criminal appeals decided this issue to the contrary in Walker v. State. See 897

S.W .2d 812, 813–14 (Tex. Crim. App. 1995). W alker argued that “there can be no

affirmative finding of a deadly weapon in a prosecution for involuntary manslaughter

by accident or mistake from the intoxicated operation of a motor vehicle” because

an affirmative finding requires “some intent or desire to use the instrument of death

as a weapon.” Id. at 813. The court of criminal appeals disagreed and held that “it

is evident that not all deadly weapons need be used with an intent to achieve a

specific purpose” and that to support an affirmative deadly weapon finding, “no intent

to use the automobile as a weapon need be shown.” Id. at 814; see also Dotson v.

State, 146 S.W .3d 285, 299–300 (Tex. App.—Fort W orth 2004, pet. ref’d) (rejecting

the appellant’s contention that a deadly weapon finding is improper merely because

offense of manslaughter requires less than intentional conduct).


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      Appellant also contends his motor vehicle was not a deadly weapon because

Officer Freeto died from the fire, not the impact from Appellant’s vehicle. First,

Appellant ignores the evidence that the fire that killed Officer Freeto would not have

occurred had Appellant not driven his vehicle into the back of Officer Freeto’s patrol

car. Second, Appellant omits that the definition of a deadly weapon under section

1.07(a)(17)(B) includes “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” (emphasis added) See Tex.

Penal Code Ann. § 1.07(a)(17)(B). There is no requirement that the deadly weapon

actually cause death or serious bodily injury before the jury can affirmatively answer

the deadly weapon question. See id.; see also McCain v. State, 22 S.W .3d 497, 503

(Tex. Crim. App. 2000) (holding section 1.07(a)(17)(B)’s “plain language does not

require that the actor actually intend death or serious bodily injury; an object is a

deadly weapon if the actor intends a use of the object in which it would be capable

of causing death or serious bodily injury”); Rivera v. State, 271 S.W .3d 301, 304

(Tex. App.—San Antonio 2008, no pet.) (stating knife that did not cause death or

serious bodily injury could be deadly weapon if “the actor intended a use of the knife

in which it would be capable of causing serious bodily injury”). Here, even assuming

Appellant’s vehicle did not cause Officer Freeto’s death, the question for the jury was

whether Appellant used or intended to use his vehicle in a manner capable of

causing death or serious bodily injury, not whether Appellant’s vehicle actually




                                          14
caused Officer Freeto’s death. See McCain, 22 S.W .3d at 497; Rivera, 271 S.W .3d

at 304.

       2. The Evidence is Legally Sufficient

       To determine whether the evidence supports an affirmative deadly weapon

finding in cases involving motor vehicles, we conduct a two-part analysis. Sierra v.

State, 280 S.W .3d 250, 255 (Tex. Crim. App. 2009). W e first “evaluate the manner

in which the defendant used the motor vehicle during the felony.” Id. W e then

“consider whether, during the felony, the motor vehicle was capable of causing death

or serious bodily injury.” Id.

       Here, the jury heard testimony that, before getting onto the interstate,

Appellant sped past a tow truck, almost hitting the tow truck before swerving to avoid

a collision and that Appellant drove erratically on Interstate 35 just before the

collision, moving from the far right lane to the far left lane, back again to the far right

lane, and then onto the shoulder where Officer Freeto’s patrol car was parked with

its emergency lights flashing. Lovett testified Appellant’s vehicle was traveling in

excess of ninety-seven miles per hour at the time of impact. Lovett and Officer

Malone also testified Appellant did not hit his brakes before the impact. The jury

also heard testimony that Appellant’s vehicle did, in fact, cause Officer Freeto’s

death; Lovett testified the patrol car had caught fire because Appellant drove his

vehicle into the back of the patrol car, and Dr. Peerwani testified Officer Freeto had

died as a result of the impact that caused the fire.


                                            15
       Viewing the evidence in a light most favorable to the prosecution, a rational

jury could have determined beyond a reasonable doubt that Appellant used or

intended to use his vehicle in a manner capable of causing death or serious bodily

injury. See Tex. Penal Code Ann. § 1.07(a)(17); Sierra, 280 S.W .3d at 256 (holding

evidence of deadly weapon legally sufficient when defendant exceeded speed limit,

failed to maintain control of his SUV, and in fact caused serious bodily injury to

another); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d

at 778. W e hold the evidence was legally sufficient to support the jury’s verdict, and

we overrule Appellant’s fourth point.

       3. The Evidence is Factually Sufficient

       In addition to the evidence discussed above, Appellant introduced evidence

that driving above the speed limit, standing alone, does not make a motor vehicle a

deadly weapon. For example, Officer Malone testified that driving seventy miles per

hour in a straight line within the traffic lane is not reckless. Lovett similarly testified

that driving seventy-five miles per hour in a sixty mile per hour speed zone might or

might not make a vehicle a deadly weapon, depending on the way the vehicle is

driven. However, Officer Malone testified he believed Appellant’s vehicle was a

deadly weapon because of the way Appellant was driving. Officer Malone testified

that just before the collision, Appellant drove his vehicle at a high rate of speed and

veered from the far right lane to the far left lane, back again to the far right lane, and

then onto the shoulder where Officer Freeto’s patrol car was parked with its

emergency lights flashing. Officer Malone specifically recalled thinking when he saw

                                            16
Appellant speed past him that Appellant would kill someone driving like that. And

Lovett testified that Appellant was driving more than ninety-seven miles per hour in

a sixty mile per hour zone and testified, “At that speed, in that manner, this vehicle

is easily a deadly weapon.”

      Viewing the evidence in a neutral light, we conclude a rational trier of fact

could have found beyond a reasonable doubt that Appellant used or intended to use

his vehicle in a manner capable of causing death or serious bodily injury. See Tex.

Penal Code Ann. § 1.07(a)(17). W e cannot say that the evidence is so weak that the

jury’s determination was clearly wrong or manifestly unjust or that the conflicting

evidence so greatly outweighs the evidence supporting the conviction that the jury’s

determination is manifestly unjust. See Lancon, 253 S.W .3d at 704; Watson, 204

S.W .3d at 414–15, 417. W e hold the evidence was factually sufficient to support the

jury’s verdict, and we overrule Appellant’s third point.

                                  VI. Conclusion

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

judgment.



                                               ANNE GARDNER
                                               JUSTICE

PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.

PUBLISH

DELIVERED: April 15, 2010


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