                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-337-CR


THOMAS GREGORY MARSHALL                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                   STATE

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

           FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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

                        MEMORANDUM OPINION 1

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

                                I. Introduction

     In two points, appellant Thomas Gregory Marshall appeals the sentence

imposed by the jury after he pleaded guilty to, and was convicted of, felony

DWI. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                           II. Factual and Procedural History

      On May 17, 2007, at approximately 1:30 p.m., Captain William Ray of

the Willow Park Police Department received a dispatch about a possibly

intoxicated driver. Upon reaching the designated intersection, he saw a gray

car traveling on the wrong side of the road after it apparently ran a pick-up

truck off the highway. 2 After he activated his lights and siren in an attempt to

stop the vehicle, it continued to drive for approximately one mile, crossing over

the road’s center line at least twice and traveling between forty-five and fifty

miles per hour in a thirty-five mile-per-hour zone. Marshall was the vehicle’s

driver and sole occupant.




      2
          … Captain Ray testified as follows:

      Q.   What happened after you turned north on Ranch House
      [Road]?

      A.    . . . When we entered the left-hand corner, I observed a
      pickup truck coming south on Ranch House [Road] coming back
      onto the roadway. Grass—you could see the grass and the dust
      coming up from the shoulder. I also observed a gray vehicle in
      front of another car that was coming back over onto the right-hand
      side of the roadway.

      Q.       That had been traveling on the incorrect side of the road?

      A.       Yes, sir.

                                           2
      Captain Ray administered a Horizontal Gaze Nystagmus test, which

Marshall failed. Captain Ray arrested Marshall for the investigation of DWI and

transported him to the Parker County Jail to administer the intoxilyzer and other

sobriety tests on videotape. 3 Marshall failed three additional sobriety tests. He

refused to provide a breath sample for the intoxilyzer. Captain Ray obtained a

search warrant for a sample of Marshall’s blood. The blood test revealed that

Marshall had a blood alcohol concentration of .33. 4

      Marshall pleaded guilty to felony DWI, admitted to three prior

misdemeanor DWI convictions, and asked the jury to assess his punishment.

Marshall testified at trial and called eight character witnesses in support of his

request for community supervision. At the close of evidence, the jury assessed

punishment at five years’ confinement and a $10,000 fine. The trial court

denied Marshall’s motion for new trial, and this appeal followed.

                            III. Motion for New Trial

      In his first point, Marshall complains that the trial court abused its

discretion by denying Marshall’s motion for new trial “because substantial




      3
       … The videotape of the sobriety tests was admitted into evidence and
published to the jury.
      4
      … A person is legally intoxicated if his blood alcohol concentration is
0.08 or more. Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003).

                                        3
evidence that could have benefitted [Marshall] at sentencing was not presented

to the jury.”

A. Standard of Review

      We review a trial court’s denial of a motion for new trial under the abuse

of discretion standard. State v. Herndon, 215 S.W.3d 901, 906–07 (Tex.

Crim. App. 2007). We do not substitute our judgment for that of the trial

court; rather, we decide whether the trial court’s decision was arbitrary or

unreasonable. See id. at 907–08.

      Marshall based his motion for new trial “in the interest of justice.” The

court of criminal appeals has spoken at length regarding the granting of a new

trial “in the interest of justice”:

             Historically, we have consistently held that a trial judge has
      the authority to grant a new trial “in the interest of justice” and
      that his decision to grant or deny a defendant’s motion for new trial
      is reviewed only for an abuse of discretion. That discretion is not,
      however, unbounded or unfettered. A trial judge has discretion to
      grant or deny a motion for new trial “in the interest of justice,” but
      “justice” means in accordance with the law.

              A trial judge does not have authority to grant a new trial
      unless the first proceeding was not in accordance with the law. He
      cannot grant a new trial on mere sympathy, an inarticulate hunch,
      or simply because he personally believes that the defendant is
      innocent or “received a raw deal.” The legal grounds for which a
      trial court must grant a new trial are listed in Rule 21.3, but that
      list is illustrative, not exclusive. A trial court may grant a motion
      for new trial on other legal grounds as well. . . . Although not all
      of the grounds for which a trial court may grant a motion for new

                                        4
      trial need be listed in statute or rule, the trial court does not have
      discretion to grant a new trial unless the defendant shows that he
      is entitled to one under the law. To grant a new trial for a
      non-legal or legally invalid reason is an abuse of discretion. . . .

             While a trial court has wide discretion in ruling on a motion
      for new trial which sets out a valid legal claim, it should exercise
      that discretion by balancing a defendant’s “interest of justice” claim
      against both the interests of the public in finality and the
      harmless-error standards set out in Rule 44.2. Trial courts should
      not grant a new trial if the defendant’s substantial rights were not
      affected. Otherwise, the phrase “interest of justice” would have
      no substantive legal content, but constitute a mere platitude
      covering a multitude of unreviewable rulings. . . .

             We need not today set out bright-line rules concerning
      appellate review of a trial court’s discretion in this area, but we do
      conclude that a trial court would not generally abuse its discretion
      in granting a motion for new trial if the defendant: (1) articulated
      a valid legal claim in his motion for new trial; (2) produced evidence
      or pointed to evidence in the trial record that substantiated his legal
      claim; and (3) showed prejudice to his substantial rights under the
      standards in Rule 44.2 of the Texas Rules of Appellate Procedure.
      The defendant need not establish reversible error as a matter of law
      before the trial court may exercise its discretion in granting a
      motion for new trial. On the other hand, trial courts do not have
      the discretion to grant a new trial unless the defendant
      demonstrates that his first trial was seriously flawed and that the
      flaws adversely affected his substantial rights to a fair trial.

Id. at 906–09 (internal citations omitted).

B. Evidence

      Marshall complains that at the hearing conducted on his motion for new

trial, he produced evidence that was not presented to the jury during his trial

through no fault of his. Specifically, he argues that he, his wife, Greg Kemp,

                                        5
James Runyon, Lavell Ellis, Rocky Rogers, Charles Fisher, Tom Campbell, and

Edward Deary either were not available to testify at trial because of short notice

from his trial counsel or were not adequately prepared and questioned during

trial by his trial counsel.

          Marshall, his wife, Rogers, Fisher, Campbell, and Deary testified at trial,

as did Larry Adams (one of Marshall’s friends), Ed Judge (Marshall’s probation

officer), and Steve Markwardt (Marshall’s AA sponsor). The trial testimony

centered     on   Marshall—his    education    (associate   degree   in   mechanical

engineering, bachelor of business administration degree, master of science

degree in engineering, and a master of business administration degree), his

personality traits (his honesty and integrity, his self-reliance, his excellent

leadership and management skills, and his reputation as a hard worker), his

family (wife, two daughters—one in high school and one in college—an elderly

aunt, his recently deceased father), and his work history with Bell Helicopter

and as a consultant.       It also centered on what his family and friends were

willing to do to help him comply with the terms and conditions of community

supervision. 5




      5
       … Marshall’s character witnesses, most of whom had known him for
many years, testified that they would assist him in following the terms and
conditions of community supervision.

                                           6
      Marshall’s wife D.D. testified that she had been married to Marshall for

almost twenty-three years, that they enrolled him in Baylor All Saints Hospital’s

in-depth treatment program after his arrest, and that Marshall has been in

compliance with all his bond requirements (i.e., treatment programs, his ankle

bracelet, weekly probation meetings, etc.). About Marshall, she testified that

“[h]e’s a good all-around guy period . . . ; he’s the type of guy that would give

you the shirt off his back.” With regard to the changes she had noticed in

Marshall, she testified:

      It’s . . . the AA program has been the major turnaround. But,
      again, I do want to emphasize that it’s not AA on the surface. It’s
      AA penetrated. And we stumbled a little bit trying to get there
      because we thought we were doing the right things, but . . . you
      have to really get involved. It’s like attending church and—and
      never volunteering or something. We had to really get involved,
      come to a new level, a different understanding. It wasn’t just
      about, oh, he’s going to show up and he’s going to get better one
      day or it’s—things are going to be—our life is going to be different.
      When we found the right sponsor, which was the key thing as well,
      things really started to turn around because our activities in the
      church had a new connection to the sponsor.

She testified that she would help Marshall comply with the terms and

conditions of community supervision if he were to receive it.

      Marshall testified that he was fifty years old and that his father had also

been an alcoholic.         He testified that he had completed an inpatient

detoxification program as well as intensive outpatient services and had secured



                                       7
a prescription for Antabuse from his family physician. Marshall credited his

wife with helping him to ask for help this time, and he testified about the

various programs he was enrolled in, including Alcoholics Anonymous. He also

gave the following direct testimony:

     Q.   Why haven’t you solved this [alcoholism] problem before
     today?

     A.     I think this is the mind-set that I’ve had for my whole life.
     And I’ve always thought that I could control things, that I had to
     control things, and I didn’t feel like I should seek help. . . . [I]t was
     pride.

     ....

     Q.    [W]hy is this time any different than the others? I mean, it’s
     easy to say that you’ve gone through, you know, hundreds and
     maybe thousands of hours of programs. Why should this jury
     extend you an opportunity to continue these things as opposed to
     sending you to the penitentiary?

     A.     . . . Once I was, I guess, finally able to believe that this is
     truly something that I don’t have control over, which I—which I
     need to be in control—it’s something that exceeds my . . . finite
     limitations. . . . Once I learned that and humbled myself and—and
     what D.D. said was right. In previous times going to AA and stuff,
     it was just an exercise. It’s just like, you know, yeah, I got to be
     here. And after a while the stories are the same; it’s just maybe
     different people. And, well, that’s not me because I still get up and
     go to work and—and I still bring home this and—and it’s just false
     hope. But like, again, she stated, if you get into the thing, it
     works. I—I kind of thought it would never work on me. Again,
     I—this is about me. But I’ve had to really humble myself. Started
     in the treatment, started with my wife, and it’s—it’s just crazy. . . .
     I can’t believe I have put my family in this position, and my friends.



                                        8
      On cross-examination, he added:

      Like I said before, . . . I didn’t get it in the past. I’ve totally been
      humbled by this. . . . I’ve admitted I do need help finally. Tried to
      get some spiritual stuff back in my life and back in my family. My
      wife and kids . . . they’re still here for me. I—I love them to death.
      I’m sorry to put everybody through this. I—but I think in the end
      it will be the best thing that ever happened to me and my family.
      I owe them a lot. I owe my friends. And I’ve let them down. And
      I look forward to the future. I’m—I’m an honest person. I feel like
      that. And they have a reason to question my—the trust that we’ve
      built over the years, and—and I want to build that back. We’re
      doing that now. D.D. and I are happier, you know, within reason,
      as much as we have been in I don’t know how long. My—my girls
      are coming around. And, yeah, there’s a dad now that—you know,
      they’re 18 and 15, you know . . . . I owe it to them. I—and I’m
      looking forward to paying them back.

      The testimony at the hearing on the motion for new trial and in the

affidavits filed during that hearing added no new information. Marshall testified

that his participation in the various programs “[was] totally different this time,”

that he was sorry he had let so many people down, and that he regretted not

getting to tell the jury the differences between the relationship with his wife as

compared to the previous DWIs. 6 His wife testified that his commitment to



      6
          … During the motion hearing, he testified as follows:

      Q.   Now, did you get a chance to—to tell the jury at your trial
      the—the differences in the relationship with—between you and
      your wife now as compared to your prior DWIs?

      A.       No.


                                         9
treatment now was very different from his earlier DWI cases, that he had

overcomplied with his bond requirements, and that he would lose his family if

he started drinking and driving again. 7       Lavell Ellis, a licensed chemical


      Q.   And is that an important component, in your opinion, in—in
      making sure that you’re not going to be out drinking and driving?

      A.    It—it is. It is major. It is a major component.

      Q.     And are you committed to continuing with treatment and AA
      in the future?

      A.    I’m very committed. And, as funny as this may sound, I—I
      look forward to the future for that because I’ve got a little taste of
      helping some people, and I sure have the history to know what not
      to do . . . .

      He also added that, in his previous experience with AA, he did not really
have a sponsor and went through the required steps rather quickly without
“exercising the intent of the program.” This time, he had been in AA for
approximately sixteen months and was on the twelfth step of the program.
This time, he had Markwardt, Ellis, Judge, and his wife as a support group.
This testimony generally duplicated trial testimony by Fisher, Judge, Deary,
Adams, Markwardt, D.D., and Marshall himself.
      7
       … D.D. additionally testified that she had noticed a significant difference
in Marshall following his arrest in this case as compared to his behavior and
attitude following probation for his prior DWI offenses in that what he does on
his own now is voluntary. She testified that while he previously attended the
DWI Education Class and some AA classes, he never made the right connection
after the third DWI, and she was not able to truly help him with recovery
because she mistakenly believed that he could simply will himself to stop
drinking and did not understand that alcoholism is a disease. This time, she
was able to effectively help Marshall maintain his sobriety, and their relationship
had become stronger and healthier as a result of Marshall’s commitment to
sobriety. Overall, Marshall’s commitment to treatment is now very different
from his prior DWI cases, and he now has a safety net in place that was not

                                        10
dependency counselor, testified that Marshall had voluntarily participated in one

of his group classes for almost a year and was “a pretty committed man, I

think.” Ellis testified that, of his fifty-five clients, he considered Marshall to be

the lowest risk of reoffending because he seemed to be the most committed,

but he also testified that by “low risk,” he was talking about “probably less

than five-percent chance of relapse,” and that he did not know what Marshall’s

blood alcohol content was when he was arrested. And Gregory Kemp, who had

known Marshall for thirty-four years, testified that Marshall was a good family

man and a good husband, that he was Kemp’s children’s godfather, and that

he had a new commitment to the programs that he had not had in the past.

      Marshall offered into evidence affidavits from four character witnesses

who testified at trial. Deary’s affidavit stated that the jury should have heard

more about Marshall as a person rather than about his professional background

and economic status, that Marshall was truly taking responsibility for his

problem with alcohol, and that Marshall was now devoting his time to people

that support him and will help keep him out of trouble. Rogers’s affidavit stated

that Marshall has a great relationship with his daughters and that “[t]his




available following his prior DWI arrests. This testimony generally duplicated
trial testimony by Fisher, Judge, Deary, Adams, Markwardt, Marshall, and D.D.
herself.

                                         11
situation” had brought Marshall and D.D. closer together; it also stated that the

jury should have heard more about Marshall personally, rather than about his

education and profession, including how Marshall handled his father’s illness

and changing needs prior to arrest, his aunt’s death and estate, and relocation

of another elderly aunt. Fisher’s affidavit stated that he felt he did not get the

chance to emphasize for the jury that Marshall was willing to do anything he

needed to recover from his alcohol problem, that Marshall was remorseful, and

that Marshall has been doing community service, including rebuilding houses in

Galveston. Campbell’s affidavit stated that Marshall had “truly found ‘religion’

in dealing with his drinking problem,” has a closer relationship with his family

since his arrest, and has made a “truly profound” change, and that jail time was

not necessary and would not help Marshall recover.

      Marshall offered into evidence affidavits from three additional character

witnesses, Greg Kemp, James Runyon, and Lavell Ellis. Kemp’s affidavit stated

that Marshall did not belong in prison and that Marshall was remorseful and

“definitely realizes what a bad and stupid thing it is to drive while intoxicated.”

Runyon’s affidavit stated that Marshall recognized that the arrest was his fault

and that he takes it very seriously, that Marshall handled stress from family and

work responsibilities the wrong way by drinking, and that Marshall had much

to offer the community. Ellis’s affidavit stated that Marshall was in one of his

                                        12
treatment groups, was very serious about getting treatment for his alcohol

abuse problem, did not belong in prison, and presented a low risk of reoffending

if he continued his involvement with AA and continued to follow a treatment

program. All of this evidence essentially duplicates testimony admitted at trial

by Judge, Deary, Adams, Markwardt, D.D., and Marshall himself.

      At the conclusion of the testimony at the hearing, the trial court

observed:

      Well, candidly—and correct me on this if I’m mistaken, but, really,
      the only variant—the only objectively assessed variance that we
      have with the evidence at trial is simply that Mr. Ellis testified here
      today and did not at trial, and otherwise, the subject matter
      covered . . . seems to be consistent. . . . It’s just that his personal
      presence wasn’t here . . . but other than that . . . the area was
      covered.

The trial court denied the motion.

C. Analysis

      After reviewing the record before us, we hold that the trial court did not

abuse its discretion by denying a motion for new trial. The vast majority of the

alleged “should-have-been-offered” testimony presented at the hearing

duplicated trial testimony, and we cannot say that the testimony that

purportedly would have been offered demonstrates that a seriously flawed trial

occurred or that Marshall’s substantial rights were affected. See Herndon, 215

S.W.3d at 906, 909. We overrule Marshall’s first point.

                                        13
                             IV. Jury Argument

     In his second point, Marshall complains that the trial court erred by not

sustaining his objection during closing arguments.

A. Closing Arguments

     The following dialogue occurred during the State’s rebuttal:

     [State]: What [defense counsel] is asking you to do—the real base
     question that you have to ask yourself is, [“D]o I trust Thomas
     Gregory Marshall? Do I trust that if I don’t take the opportunity
     and put him where he can’t drink and drive, that he will not engage
     in that activity?[“] And I think you’ve got to reach inside of
     yourself and look and say, [“Y]ou know what, what’s his track
     record?[“] Folks, I would submit to you his track record is DWI,
     probation, goes to programs, gets some help; DWI, probation[,]
     goes to programs, gets some help; DWI. And, folks, kind of one of
     the scariest parts to me, too, is that while he’s not the alcoholic in
     the sense that we see that word or you go to the movies and see
     somebody drinking constantly and falling over, he goes out socially,
     a couple times a week and has some drinks. In Bedford 30 miles
     away. And you heard some of the witness’ testimony he drives
     himself home. That ought to scare you. That ought to scare you
     that this defendant gets up and says, [“Y]ou know what, oh, I may
     still have a few [e]ffects of—from the night before because I drank
     some then, too, but went ahead and drove to work and, no, I’ve
     got no recollection of running anybody off the road.[“] But we
     know the facts of this case are he was driving so badly, that
     someone called in—a complainant called in to the Willow Park
     Police Department dispatch and made that complaint.

     [Defense counsel]: Your Honor, I think the Counsel is outside the
     record, your Honor. The Court will recall—

     [State]: Judge, that’s directly based on testimony. They can recall
     it as they will.



                                      14
      [Defense counsel]: I’ll object—

      [Trial Court]: Overruled. [Emphasis added.]

B. Standard of Review

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973). If a jury argument exceeds the

bounds of proper argument, the trial court’s erroneous overruling of a

defendant’s objection is not reversible error unless it affected the appellant’s

substantial rights. Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677,

692–93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).          In

determining whether the appellant’s substantial rights were affected, we

consider (1) the severity of the misconduct (i.e., the prejudicial effect of the

prosecutor’s remarks), (2) curative measures, and (3) the certainty of the

punishment assessed absent the misconduct. Martinez, 17 S.W.3d at 692–93;

Mosley, 983 S.W.2d at 259.




                                        15
C. Analysis

      Marshall argues that the State injected harmful facts into the case

without support in the record, stating,

      Simply put, nothing in the testimony from the trial indicated that
      the complainant witnessed any “bad driving” on behalf of
      Appellant. Instead, the only testimony on the issue indicated that
      the call was for a “possible intoxicated driver” which does not
      speak to what factor(s) were witnessed that led the caller to
      believe there was a possibility that the driver was intoxicated.

      Captain Ray gave the following testimony during the State’s direct

examination:

      Q.    Okay. At approximately 1:30 on that Thursday, May 17th,
      did you receive a dispatch?

      A.      Yes, sir.

      Q.      And where was that dispatch received from?

      A.      The Willow Park dispatch.

      Q.      What was the nature of that dispatch?

      A.   They had received a call of a possible intoxicated driver on
      Ranch House Road northbound.

      Q.      Did you have any d[e]scription of what kind of car it was?

      A.    Yes, sir. They advised it was a gray—a gray vehicle. They
      didn’t—I don’t believe the complainant advised what type of
      vehicle. It was a gray—gray car.




                                       16
     Notwithstanding Captain Ray’s direct testimony, Marshall gave the

following testimony on cross-examination:

     Q.    Did you give any thought to the fact that you were
     intoxicated before you got in that car to drive that, what is it, 30
     miles from Bedford to Willow Park?

     A.    I honestly can’t say. I—I’m—I’m—I knew I didn’t need to
     drink anymore and I needed to go about my plan for the day.

     Q.    Does it concern you that you were driving so badly, that
     someone called in on a cell phone to a police department and said,
     hey, you need to look out for this gray Volvo?

     A.    . . . [W]hat was described earlier, I think it was overstated.
     I—it—it concerns me, yes, but I don’t recall running anybody off
     the road at all.

     [Defense]: Your Honor, we object. There’s no testimony from any
     officer of that occurring.

     [Trial court]: Sorry?

     [Defense]: We’re going to object to that. There’s no testimony
     from any of—the witness stand of any of the things he said
     occurring. If he wants to put a witness up—

     [Trial court]: Overruled. [Emphasis added.]

Marshall does not complain on appeal about this objection being overruled.

     Assuming, without deciding, that the trial court erred by not sustaining

Marshall’s objection to the State’s controversial statement in closing

arguments, we first consider the prejudice, if any, caused by the improper

remark. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)

                                     17
(“Prejudice is clearly the touchstone of the first factor in the Mosley test.”). The

statement was made a single time, without elaboration, emphasis, or

subsequent direct or indirect reference, and the subject matter of the statement

itself was not inflammatory or egregious. This factor weighs in favor of the

State. However, no curative measures were taken because Marshall’s objection

was overruled, and this factor weighs in Marshall’s favor. Finally, however, it

is with regard to the certainty of the punishment assessed absent the

misconduct that we conclude that the error did not affect Marshall’s substantial

rights. See Tex. R. App. P. 44.2(b).

      First, the jurors could have reasonably deduced for themselves that

Marshall was driving “badly,” given that his blood alcohol content was more

than four times the legal limit; given Captain Ray’s testimony about Marshall’s

driving and his performance on the sobriety tests, and the publication of the

sobriety test videotape; and given Marshall’s testimony that he did not recall

running anybody off the road (contrary to Captain Ray’s testimony).

      Second, Marshall admitted to three prior convictions for DWI—in 1991,

1994, and 1999—two of which also involved charges for possession of

marijuana, although at least one of the possession charges was dropped in




                                        18
exchange for a guilty plea to the DWI charge. 8      Deary, one of Marshall’s

character witnesses, admitted on cross-examination that it was worse that

someone could be caught three times for DWI and continue to do it. Rogers,

another of his character witnesses, stated on cross-examination that he thought

Marshall recognized back during the prior DWIs that he had an alcohol problem.

      Finally, the punishment assessed—five years’ confinement and a $10,000

fine—was in the mid-range of punishment allowed for an individual with three

prior DWI convictions.     See Tex. Penal Code Ann. § 12.34 (Vernon Supp.

2009) (stating that the punishment range for a third degree felony is two to ten

years and up to a $10,000 fine), § 49.09(b)(2) (Vernon Supp. 2009) (stating

that DWI is a third degree felony if the person has previously been convicted

two times of DWI). This factor weighs in favor of the State. In light of the

foregoing, we hold that the error, if any, in overruling Marshall’s objection to

the State’s comment during closing argument was harmless.          We overrule

Marshall’s second point.




      8
     … In both instances, Marshall testified that the marijuana belonged to
someone else. He stated that he, “fortunately, never had a drug problem.”

                                      19
                              V. Conclusion

     Having overruled Marshall’s two points, we affirm the trial court’s

judgment.




                                        BOB MCCOY
                                        JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

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

DELIVERED: January 28, 2010




                                   20
