                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00244-CR
                               NO. 02-11-00245-CR

MELVIN SCOTT HORTON                                                  APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      Appellant Melvin Scott Horton appeals his convictions for driving while

intoxicated and possession of marijuana under two ounces. In a single issue,

Appellant argues that the evidence is legally and factually insufficient to support

his convictions. We will affirm.



      1
       See Tex. R. App. P. 47.4.
                            II. FACTUAL BACKGROUND

                         A. The 9-1-1 Caller’s Testimony

      Lonnie Griggs testified that on November 13, 2009 at 9:05 p.m., he and his

twelve-year-old son were on their way from Mesquite to Euless for a hockey

game. Griggs said that he was running late, and so he was driving sixty-five or

seventy miles per hour in a sixty-mile-per-hour zone. While en route in heavy

traffic, Griggs noticed a blue truck approaching him from behind at a high rate of

speed. After the truck passed Griggs, it swerved several times with all four tires

crossing into different driving lanes a few times and going off onto the shoulder,

nearly hitting several cars that were parked on the shoulder. At that point, Griggs

called 9-1-1 and reported that a driver was under the influence and was driving

recklessly. Griggs provided the dispatcher with a description of the truck and the

license plate number, continued to follow the truck, and stayed on the line with

the 9-1-1 dispatcher. Griggs testified that he never allowed the truck to be more

than four car lengths from him and that he maintained visual contact with the

truck the entire time until the police pulled it over. The police also instructed

Griggs to pull over, and he provided them with his contact information.          A

recording of Griggs’s 9-1-1 call was played for the jury.

      On cross-examination, Griggs testified that the truck slowed down to sixty-

five or seventy miles per hour after it passed him. Griggs could not tell whether

the driver was on the phone or texting when he swerved because the windows of

the truck were tinted.


                                         2
                    B. The Arresting Officer’s Testimony

      Officer Brandon Zachary with the Euless Police Department testified that

on November 13, 2009, he received a radio call informing him that a concerned

citizen was following a possibly intoxicated driver.   Officer Zachary was very

close to the area that was identified in the radio call and asked dispatch to have

the concerned citizen turn on his hazard lights. The concerned citizen complied,

and from the service road, Officer Zachary could see on the freeway the

concerned citizen and the blue, full-sized Toyota Tundra pickup truck that had

been described in the radio call. Officer Zachary saw the Toyota switch from the

outside lane to the center lane without signaling and paced him at seventy-two

miles per hour in a sixty-mile-per-hour zone. Officer Zachary initiated a traffic

stop of the Toyota. After Officer Zachary activated his lights, Appellant engaged

his turn signal, changed lanes properly, and came to a stop.

      Officer Zachary approached the driver’s side of the vehicle and spoke to

Appellant. Officer Zachary smelled a moderate odor of alcohol on Appellant’s

breath and noticed that his eyes ―seemed a little heavy.‖ Officer Zachary asked

Appellant if he had been drinking, and Appellant denied that he had consumed

any alcoholic beverage. Later during the stop, Appellant admitted that he had

consumed one beer at the airport.2 Based on Appellant’s failure to signal the



      2
      Officer Zachary could not recall for sure but thought that Appellant had
mentioned that he was on his way home from the airport.


                                        3
lane change, his excessive speed, the report of his erratic driving from Griggs,3

the smell of alcohol on Appellant’s breath, and his heavy eyes, Officer Zachary

determined that he should conduct the standard field sobriety tests (SFSTs).

      On the horizontal gaze nystagmus (HGN) test, Appellant exhibited all six

clues. Of the eight clues on the walk-and-turn test, Appellant exhibited two clues:

he could not keep his balance while listening to the instructions and failed to

touch his heel to his toe three separate times during the test. During the one-

legged-stand test, Appellant mentioned that his cowboy boots were heavy and

―something about his knees,‖ so Officer Zachary gave him the option to stand a

different way or to take his shoes off. Appellant tried but said that he ultimately

could not perform the one-legged-stand test.       Due to Appellant’s failure to

complete the one-legged-stand test, Officer Zachary gave Appellant additional

tests. Officer Zachary asked Appellant to recite the alphabet from B to X, and

after starting several different times and never getting the sequence correct,

Appellant quit. Officer Zachary then asked Appellant to count backwards from

ninety-two to seventy-seven; Appellant counted correctly but did not stop at

seventy-seven.    At times during the tests, Appellant was swaying.         Officer

Zachary arrested Appellant for the offense of driving while intoxicated and asked

his backup, Officer Hansen, who was a drug recognition expert, to verify the

HGN test because Appellant had looked away at times during the test.

      3
        Officer Zachary did not recall Appellant’s mentioning anything about
texting or being on his cell phone.


                                        4
      Officer Hansen repeated the HGN test on Appellant and then called for a

wrecker and started the vehicle inventory. After looking in the center console,

Officer Hansen requested that Officer Zachary take a look in the center console.

Officer Zachary found a Shiner beer bottle that was eighty percent empty and

was cool to the touch, a ―one hitter box,‖4 and a baggie containing thirteen grams

of marijuana. Officer Zachary said that Appellant was the only person in the

vehicle that evening and that the vehicle belonged to Appellant.

      After Officer Zachary transported Appellant to the Euless Jail, Officer

Zachary conducted a videotaped interview with Appellant. Appellant refused to

provide a breath sample.

      Officer Zachary concluded based on the totality of the circumstances that

Appellant had lost the normal use of his physical faculties on November 13,

2009, due to the introduction of alcohol and/or marijuana into his system.

      During cross-examination, the defense attempted to show that Appellant

had not lost the normal use of his physical and mental faculties because he had

used them to properly answer questions and to obey commands from Officer

Zachary;5 the defense also attempted to show that Officer Zachary had not


      4
         Officer Zachary explained that a ―one hitter box‖ is the street name for a
little wooden box in which one can keep a small amount of marijuana. A portion
of the top of the box can be moved, and a small pipe ―pops out that you can
smoke marijuana through.‖
      5
       Prior to the SFSTs, Appellant identified himself using normal speech, told
Officer Zachary where he was coming from, produced his driver’s license,
stepped out of the vehicle, walked to the back of the truck, stood on the

                                        5
conducted the SFSTs properly because they were conducted on a surface with a

slight incline. Officer Zachary testified that he did not smell an odor of marijuana

in the truck; but the pipe had burnt marijuana in it, and the marijuana still had a

pungent odor. Officer Zachary could not recall whether Appellant said that he

was the only person who had driven the truck in the days immediately preceding

his arrest.

      On redirect examination, Officer Zachary testified that the Shiner beer was

turned over on the top of various items in the center console and that the baggie

of marijuana and the one hitter box were also on the top.

                     C. The Back-Up Officer’s Testimony

      Officer Hansen testified that he responded on November 13, 2009, to

assist Officer Zachary in the arrest of Appellant.     Officer Hansen arrived as

Officer Zachary was asking Appellant about where he was coming from and

whether he had been drinking. Officer Hansen watched traffic and made sure

that Appellant did not become combative; Officer Hansen noted that Appellant

was ―[e]xtremely‖ cooperative. When Officer Zachary finished performing the

SFSTs on Appellant, he asked Officer Hansen to check Appellant’s eyes for

nystagmus. Officer Hansen found six clues when he performed the HGN test on

Appellant, which indicated possible intoxication. Appellant was thereafter placed

under arrest by Officer Zachary, and Officer Hansen called for a wrecker.

designated spot, and responded that he had not endured any recent head
trauma.


                                         6
        Officer Hansen began the vehicle inventory but stopped and went to get

Officer Zachary after finding a cool-to-the-touch, open bottle of beer; a wooden

box that contained marijuana and a marijuana pipe; and a plastic baggie of

marijuana in the center console. Officer Zachary looked through the console,

and then Officer Hansen completed the vehicle inventory, finding nothing else

related to the intoxication.

                               D. The Video of the Stop

        The videotape begins with Officer Zachary’s vehicle entering the highway

on an entrance ramp. He states that he is pulling Appellant over for changing

lanes without signaling.       After Officer Zachary activates his overhead lights,

Appellant turns on his blinker and drives a long way before pulling off the road

onto the shoulder.     Once he comes to a stop, Appellant fails to turn off his

blinker.

        After Officer Zachary approaches Appellant’s car, the sound from the

highway traffic drowns out most of the dialog between Officer Zachary and

Appellant.    Appellant ultimately steps out of the truck, and Officer Zachary

performs the HGN test while Appellant stands on the shoulder near where the

asphalt meets the grass. Officer Zachary spends several minutes performing the

test on Appellant. Afterwards, Appellant says, ―I had a beer at the airport and

that’s it.‖




                                           7
      Officer Zachary then demonstrates the walk-and-turn test. When Appellant

performs the test, he teeters a bit and does not always put his heel to the toe on

his other foot.

      Officer Zachary demonstrates the one-legged-stand test, after which

Appellant states that this is the first time that he has worn his boots, that they are

heavy, and that there is an incline on the road.         Officer Zachary offers for

Appellant to take off his boots and to perform the test on the part of the shoulder

that is away from the incline. Appellant says that he is too tired to take off his

boots. He attempts the one-legged-stand test but only holds his leg for seven

seconds.

      Officer Zachary then asks Appellant if he knows the alphabet and asks that

he recite it from B to X. Appellant responds with something that sounds like, ―B,

C, D, E, F, G, X, G, S‖ and tries again with ―A, C, D, E, F, G, H, F, G, H‖ before

he gives up.

      Officer Zachary asks if Appellant knows how to count and asks him to

count backwards from ninety-two to seventy-seven. Appellant complies, but he

stops on seventy-six.

      Officer Hansen repeats the HGN test on Appellant.6 At the completion of

the test, Officer Zachary arrests Appellant for driving while intoxicated. Officer


      6
      Throughout the SFSTs, it is not easy to tell whether Appellant is swaying
because he is facing the highway. Officer Hansen, however, stood in the grass
behind Appellant and had the best view of whether Appellant was swaying.


                                          8
Hansen initiates an inventory of the truck and then asks for Officer Zachary to

inventory the center console. Officer Zachary returns with the eighty-percent-

empty bottle of beer and pours it out. The recovery of the one hitter box and the

baggie of marijuana is not evident in the video. The videotape contains very

fuzzy footage from the jail.

                               E. Wife’s Testimony

      Angela Horton, who was married to Appellant, testified that she had seen

―the billing‖ and that her husband was talking on the phone to his brother when

he was stopped on November 13, 2009. Angela testified that Appellant was

driving home from the airport that evening after returning from a business trip, but

she could not recall where he had flown from because he traveled a lot. Angela

said that she drove Appellant’s truck on occasion and that the marijuana that was

found in the truck did not belong to Appellant.         Angela pleaded the Fifth

Amendment when asked whom the marijuana belonged to. Angela did not know

whether Appellant had drunk any alcoholic beverage on the evening in question.

                                F. Trial Outcome

      After hearing the testimony above, the jury found Appellant guilty of both

offenses.    The trial court thereafter sentenced Appellant to ninety days’

confinement, suspended the sentence, placed Appellant on community

supervision for twelve months, and assessed a $350 fine in the possession case

and sentenced Appellant to ninety days’ confinement, suspended the sentence,

placed Appellant on community supervision for twenty-four months, and


                                         9
assessed a $550 fine in the driving while intoxicated case.         These appeals

followed.

                             III. STANDARD OF REVIEW

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict 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 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      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; Isassi, 330 S.W.3d at 638. 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

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

denied, 129 S. Ct. 2075 (2009).          Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine 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). We

                                         10
must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

          IV. LEGALLY SUFFICIENT EVIDENCE TO SUPPORT CONVICTIONS

      In a single issue, Appellant argues that the evidence is legally and factually

insufficient to support his convictions for driving while intoxicated and possession

of marijuana. The court of criminal appeals has held that there is no meaningful

distinction between the legal sufficiency standard and the factual sufficiency

standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).

Thus, the Jackson standard, which is set forth above, is the ―only standard that a

reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.‖ Id. at 912.

                 A. Sufficient Evidence to Prove Intoxication

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

was intoxicated. Appellant contends that the evidence is insufficient to show that

he was intoxicated because the officer did not testify that the odor of alcohol on

Appellant was strong, that he had slurred speech, that he had stumbled, or that

he had difficulty standing or answering the officer’s questions or producing the

documents the officer requested.      Appellant also argues that despite Officer




                                        11
Zachary’s testimony that Appellant’s performance on the SFSTs was

unsatisfactory, the videotape of Appellant’s performance establishes otherwise.

      Under the penal code, ―intoxicated‖ means not having the normal use of

mental or physical faculties by reason of the introduction of alcohol, a controlled

substance, a drug, a dangerous drug, a combination of two or more of those

substances, or any other substance into the body.          Tex. Penal Code Ann.

§ 49.01(2)(A) (West 2011). As a general rule, factually-based testimony of an

officer that a person is intoxicated provides sufficient evidence to establish the

element of intoxication for the offense of DWI. See Annis v. State, 578 S.W.2d

406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a

person was intoxicated provided sufficient evidence to establish the element of

intoxication); see also Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (stating that the testimony of a police officer

that an individual is intoxicated is probative evidence of intoxication).

Additionally, intoxication may be proven by a combination of individual symptoms

that when taken individually do not necessarily prove intoxication. See Cotton v.

State, 686 S.W.2d 140, 143 n.3 (Tex. Crim. App. 1985) (noting that evidence of

intoxication may include, among other things, slurred speech, bloodshot eyes,

odor of alcohol, unsteady balance, and staggered gait). And in addition to an

officer’s testimony, a jury may consider video of a defendant’s performance on

field-sobriety tests as direct evidence of intoxication.    Paschall v. State, 285

S.W.3d 166, 177 (Tex. App.—Fort Worth 2009, pet. ref’d).


                                         12
      In this case, a 9-1-1 call was received from a concerned citizen who

suspected that Appellant was intoxicated because of his reckless driving that

included speeding and almost hitting parked cars. Officer Zachary witnessed

Appellant switch lanes without signaling and paced him at seventy-two miles per

hour in a sixty-mile-per-hour zone. After Officer Zachary stopped Appellant, he

noticed a moderate odor of alcohol on Appellant’s breath and described

Appellant’s eyes as heavy. Appellant admitted to drinking a beer at the airport.

Both Officer Zachary and Officer Hansen testified that Appellant exhibited six of

six clues on the HGN test, indicating intoxication. Officer Zachary testified that

Appellant also exhibited two of eight clues on the walk-and-turn test, failed to

complete the one-legged-stand test, performed poorly and quit the alphabet test,

and failed to stop on seventy-seven when counting backwards from ninety-two.

During the SFSTs, Appellant swayed.          The officers also found evidence of

alcohol consumption in Appellant’s vehicle—an eighty percent empty beer bottle

that was cold to the touch. The officers also could not rule out that Appellant was

intoxicated by reason of the introduction of marijuana or a combination of alcohol

and marijuana into his body because a one hitter box was found with burnt

marijuana in it in the same center console where the beer bottle was found. At

the jail, Appellant refused to provide a breath sample. The jury, however, was

not forced to rely solely on the officers’ testimony; the video recording of

Appellant’s detention and performance of SFSTs corroborated the officers’

testimony that Appellant was intoxicated. Based on this evidence, a rational trier


                                        13
of fact could have found the essential elements of DWI beyond a reasonable

doubt.   See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.          Having carefully

reviewed the evidence under the applicable standard, we hold that the evidence

is legally sufficient to support Appellant’s conviction for DWI. See id.; Tubb v.

State, No. 02-08-00400-CR, 2009 WL 3720166, at *2 (Tex. App.—Fort Worth

Nov. 5, 2009, pet. ref’d) (mem. op., not designated for publication) (holding

evidence legally sufficient to support DWI conviction because evidence included,

among other things, investigating officers’ testimony that appellant was

intoxicated, that appellant had failed the one-legged-stand test and walk-and-turn

test, that appellant smelled of alcohol, that appellant admitted to drinking alcohol,

that an empty beer container was found, and video corroborating the officers’

testimony); Dukes v. State, No. 02-07-00053-CR, 2008 WL 902787, at *3–4 (Tex.

App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op., not designated for

publication) (holding evidence legally sufficient to support DWI conviction

because evidence included, among other things, that appellant smelled of

alcohol, that appellant’s eyes were heavy, that appellant admitted to drinking two

beers earlier in the day, that appellant failed HGN test and walk-and-turn test and

refused to perform one-legged-stand, that a three-fourths empty beer can that

was cool to the touch was found under driver’s seat, and that appellant refused to

provide a breath or blood sample). Thus, we overrule the portion of Appellant’s

issue complaining of his DWI conviction.

                 B. Evidence Sufficient to Prove Possession


                                         14
      Appellant also argues in his sole issue that the evidence is legally

insufficient to support his conviction for possession of marijuana.      Appellant

contends that his mere presence at the scene where the drugs were found or his

proximity to the drugs is insufficient to establish possession.

      An individual commits the offense of possession of marijuana if he

―knowingly or intentionally possesses a usable quantity of mari[j]uana‖ in the

amount of ―two ounces or less.‖ Tex. Health & Safety Code Ann. § 481.121(a),

(b)(1) (West 2010). To prove possession, the State must prove that the accused

(1) exercised actual care, custody, control, or management over the substance

and (2) knew that the matter possessed was a controlled substance. Tex. Penal

Code Ann. § 1.07(39) (West Supp. 2011); Evans v. State, 202 S.W.3d 158, 161

(Tex. Crim. App. 2006).       Possession is a ―voluntary act if the possessor

knowingly obtains or receives the thing possessed or is aware of his control of

the thing for a sufficient time to permit him to terminate his control.‖ Tex. Penal

Code Ann. § 6.01(b) (West 2011).

      If the contraband is not found on the accused’s person, independent facts

and circumstances may ―link‖ the accused to the contraband such that it may be

justifiably concluded that the accused knowingly possessed the contraband.

Evans, 202 S.W.3d at 161–62; Roberson v. State, 80 S.W.3d 730, 735 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d). Among the many possible factors

that we may consider in assessing the link between a defendant and contraband

are whether the narcotics were (1) in plain view; (2) conveniently accessible to


                                         15
the accused; (3) in a place owned, rented, possessed or controlled by the

accused; (4) in a car driven by the accused; (5) found on the same side of the car

as the accused; or (6) found in an enclosed space; and whether (7) the odor of

narcotics was present; (8) drug paraphernalia was in view of or found on the

accused; (9) the accused’s conduct indicated a consciousness of guilt (e.g.,

furtive gestures, flight, conflicting statements); (10) the accused had a special

relationship to the drug; (11) the accused possessed other contraband or

narcotics when arrested; (12) the accused was under the influence of narcotics

when arrested; (13) affirmative statements connected the accused to the drug;

(14) the accused’s presence; and (15) the accused was found with a large

amount of cash. Evans, 202 S.W.3d at 162 n.12; Roberson, 80 S.W.3d at 735

n.2; Villegas v. State, 871 S.W.2d 894, 897 (Tex. App.—Houston [1st Dist.] 1994,

pet. ref’d). The number of linking factors present is not as important as the

―logical force‖ they create to prove that an offense was committed. Roberson, 80

S.W.3d at 735. The absence of various links does not constitute evidence of

innocence to be weighed against the links present. Hernandez v. State, 538

S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State, 264 S.W.3d 215, 219

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

      Here, viewing all of the evidence in the light most favorable to the verdict,

Appellant was the driver and the sole occupant of the vehicle in which the baggie

of marijuana and the one hitter box, which contained a pipe with burnt marijuana

that had a pungent odor, was found in close physical proximity to him. Appellant


                                        16
was on his way home from the airport after returning from a business trip, thus

making it unlikely that his wife had recently driven the vehicle. The baggie of

marijuana and the one hitter box were found near the top of the console next to

the cool-to-the-touch bottle of beer that was eighty percent empty, making it

unlikely that Appellant was unaware of the drugs because he admitted having

drunk a beer. Moreover, Appellant showed signs of intoxication, including heavy

eyes and swaying during the SFSTs, which he failed. We conclude based on the

logical force created by these links that a rational trier of fact could have found

beyond a reasonable doubt that Horton possessed the marijuana in the console.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Harmond v. State, 960 S.W.2d

404, 406–07 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding evidence

legally sufficient to support conviction for possession of cocaine because

appellant was alone in car with drug paraphernalia in plain view and easily

accessible to him); Laws v. State, No. 01-09-00431-CR, 2010 WL 2133925, at *5

(Tex. App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op., not designated

for publication) (holding evidence legally sufficient to support conviction for

possession of marijuana because appellant was driver and sole passenger in car

where plastic bag containing marijuana was found in plain view on passenger’s

seat); Williams v. State, No. 14-01-01250-CR, 2002 WL 31426293, at *3 (Tex.

App.—Houston [14th Dist.] Oct. 10, 2002, no pet.) (not designated for

publication) (holding evidence legally sufficient to support conviction for

possession of controlled substance because evidence affirmatively linked


                                        17
appellant to PCP; appellant was alone when stopped and hands were near

console of car where contraband was found); see also Gilliam v. State, No. 12-

10-00136-CR, 2011 WL 2222137, at *4 (Tex. App.—Tyler June 8, 2011, no pet.)

(mem. op., not designated for publication) (holding evidence sufficient to show

that appellant violated a condition of his community supervision based on his

simple possession of marijuana while he was passenger in car even though

driver signed affidavit claiming ownership of marijuana and stating that appellant

had no knowledge of it).     Accordingly, we hold that the evidence is legally

sufficient to support Appellant’s conviction for possession of marijuana, and we

overrule the portion of Appellant’s issue complaining of his possession of

marijuana conviction.

                                 V. CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgments.


                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

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

DELIVERED: January 19, 2012




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