                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                                NO. 09-15-00155-CR
                            ____________________

                 CHRISTOPHER LEE CUTTRELL, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-08-09341 CR


                          MEMORANDUM OPINION

      Christopher Lee Cuttrell (Cuttrell or Appellant) pleaded guilty to the offense

of fraudulent possession of items of identifying information, a state jail felony. See

Tex. Penal Code Ann. § 32.51(c)(1) (West Supp. 2015). The court sentenced

Cuttrell to six months’ confinement in state jail. Cuttrell timely appealed, raising

two issues wherein he challenges the trial court’s denial of his motion to suppress

and the attorney’s fees assessed against him in the judgment. We affirm the trial

court’s judgment as modified.
                                          1
                                   BACKGROUND

      Cuttrell was indicted on November 26, 2014, for one count of fraudulently

possessing items of identifying information—for possessing fewer than five pieces

of identifying information belonging to another, specifically a person’s social

security number. The initial complaint stated that a search by law enforcement of

Cuttrell’s vehicle on August 21, 2014, revealed Cuttrell was in possession of “50

or more” items of identifying information belonging to persons other than Cuttrell

or his family.1 On September 25, 2014, prior to trial, Cuttrell filed a Motion to

Suppress, asking the court to suppress the arrest, evidence obtained pursuant to the

search of his car, and any statements by Cuttrell because the search was

unconstitutional. On January 20, 2015, the trial court conducted a hearing on the

motion.

      Deputy Theo Pternitis (Pternitis) testified at the suppression hearing that, on

August 21, 2014, he was “towards the back of” The Woodlands when he observed

an older model vehicle exit a parking lot and turn around, returning to “the exact,

same location they just turned off of.” Pternitis explained that

            I waited for a minute because they didn’t go into a parking spot
      and I noticed they didn’t go back out on Research Forest nor did they

      1
        Both the complaint as well as the indictment listed Cuttrell’s wife, Heather
Cuttrell, as a co-defendant. She is not a party to this appeal.
                                           2
      exit the vehicle doing business so I figured either they were having
      vehicle problems or they were lost or needed some kind of assistance.

Pternitis agreed that his initial contact with the occupants was for a welfare check.

Pternitis said the car was occupied by Cuttrell, Cutrell’s wife, and two children – a

girl about sixteen years old and a boy about thirteen years old. According to

Pternitis, the occupants told him they were coming from League City, they were

“going to Dallas on a family trip[,]” and they were looking for a hotel. The deputy

said the family told him they got lost because the GPS on their phone was not

working. Pternitis explained that, at the time, he thought it was odd that the family

was looking for a hotel in that area of The Woodlands, which Pternitis described as

“about 20 minutes from Interstate 45 which is a straight shot from Houston up to

Dallas[,]”and that it also raised his suspicion that Cuttrell’s wife, who was in the

front passenger seat, and not Cuttrell, answered Pternitis’s questions.

      Pternitis said he decided to notify dispatch that he “was going to be out on a

suspicious vehicle, not a traffic stop or anything but an investigative stop,” in order

to identify the driver and see if he had a valid driver’s license. Pternitis said that he

asked Cuttrell for his license, and Cuttrell responded that “[h]e didn’t have it on

him. It was in the trunk.” Pternitis stated he found this response “a little odd.”

According to the deputy, when Cuttrell asked if he could get his license from the

trunk, Pternitis agreed and Cuttrell’s wife “exited the vehicle with him as well and
                                          3
she went to go open the trunk with a screwdriver.” Pternitis testified that Cuttrell

told Pternitis that his license was invalid or suspended. Pternitis then called

dispatch and gave Cuttrell’s name and date of birth to dispatch. Dispatch advised

that the license was invalid and suspended. Pternitis also testified that Cuttrell also

told him that he had previously been arrested for narcotics, and fraud or forgery,

and that he was currently on probation. According to Pternitis, the sixteen-year-old

occupant did not have a driver’s license, and dispatch advised that Cuttrell’s wife’s

license was also suspended.

      Pternitis testified that the lock on the trunk of the car “looked punched. It

was disabled or something.” When Cuttrell’s wife opened the trunk with a

screwdriver, Pternitis could see the contents of the trunk. The deputy described the

contents of the trunk as follows:

      Q. What about what was in the trunk raised your suspicion if
      anything?

      A. I found it odd that there was a laptop computer with a laser printer
      in the trunk of his vehicle just sitting in a box loosely, not in a case,
      but sitting in the trunk.

      Q. What type of computer was it?

      A. If I’m not mistaken it was an Alienware, which I was recently in
      the market for a laptop and I know that an Alienware was one of the
      higher end laptop, several thousand dollars for the laptop.


                                          4
      Q. Why was the fact that such an expensive laptop being in the trunk
      of a car odd?

      A. I found it odd due to the fact that, yes, this was an older vehicle
      and they advised several times that they did not have air conditioning
      in the vehicle and having this expensive laptop, laser printer in the
      vehicle where it could be bounced around and be jostled and not kept
      in a safe, controlled environment up in the cab of the passenger’s seat.

             ....

      Q. Did the defendant ever tell you what their purpose was for driving --

      A. A family outing.

      Q. A vacation?

      A. Yes, sir. . . .

             ....

      Q. Did anything about that trunk strike you as they were on vacation?

      A. There wasn’t any luggage.

      The deputy testified that whenever he looked inside the vehicle, “they

continually directed [his] attention to them at the back of the vehicle while

[Cuttrell’s wife] kept on constantly messing around with her cell phone at the front

of the vehicle.” Pternitis explained his thoughts at the time:

             There was something they didn’t want me seeing inside the
      vehicle or I didn’t know exactly what she was trying to do with her
      cell phone. I had to ask her numerous times to leave the phone alone
      at the time. If she was having problems with the battery, she needed to
      just leave it plugged in. I wasn’t sure exactly what was going on.
                                           5
      Pternitis testified that he could not let the family drive away because none of

them had a valid license, and they could not leave their car in the parking lot for

liability reasons, because “[i]t was private property[,]” and it was in a fire lane,

which was a parking violation. Pternitis explained that he asked Cuttrell if they

knew someone that could pick them up and also pick up the vehicle for them.

Pternitis said he understood the family to tell him that someone who was possibly

an hour away could pick up the car.

      Pternitis agreed that, in less than ten minutes after encountering the Cuttrells,

he felt he no longer had a welfare-check situation but rather a suspicious vehicle.

According to Pternitis, at some point his sergeant came onto the scene with him

and his sergeant asked to search the vehicle. Pternitis testified that he asked the

Cuttrells multiple times if they objected to him searching their vehicle. The deputy

explained Cuttrell’s response to this request:

      A. They didn’t really see the point in it, and Mr. Cuttrell advised even
      if he were to say no, we would search it anyway. He always ends up
      in handcuffs going to jail when the police search his vehicle.

      Q. Did that raise your suspicion at all?

      A. Definitely.

      Q. And what did you explain to Mr. Cuttrell?



                                          6
      A. I advised him if he didn’t want to search the vehicle it was his right
      to refuse. I wasn’t going to search it if he didn’t want me to unless I
      had probable cause to search the vehicle.

      Pternitis explained that, at this point, he had been on the scene ten or fifteen

minutes. Pternitis said he did not order anyone out of the vehicle, but the family

asked him if they could step out of the car because it was hot and they did not have

air conditioning, and Pternitis agreed. According to Pternitis, the four family

members got out of the car “for comfort reasons[,]” and Pternitis asked for another

unit to come help him for safety reasons. Pternitis testified that he had taken the

extra-length screwdriver “for officer safety[]” and lowered the lid to the trunk but

did not close it because the lock did not work. On cross-examination, Pternitis

agreed that at that time, the situation was “investigative[]” and the Cuttrells were

being detained and they would not have been allowed to leave.

      The deputy stated that, when the Cuttrells refused the request to search the

vehicle, he inquired as to whether a canine was available nearby to do a canine

search, explaining his suspicions as follows:

             . . . I believe[d] there was something in the vehicle that they
      didn’t want me to see due to them trying to divert my attention from it
      constantly and, obviously, [Cuttrell] stated every time law
      enforcement searches his vehicle he end [sic] up in handcuffs and
      going to jail. So it led me to believe there was something in that
      vehicle that didn’t belong.

             ....
                                          7
             I suspected, due [] to the fact that he said he’s always been
      handled for narcotics, there may possibly be narcotics in the vehicle.
      So I asked for a canine to come and sniff for the odor.

             ....

            It was not only the fact that there could be a possibility of
      narcotics, but, also, it would be a number of things. I also wanted to
      check that laptop and make sure it wasn’t stolen.

             ....

            Every time I would ask one person a question the other person
      would try to answer for them or always come in and answer. It was
      [Cuttrell’s wife] who kept on [answering] whenever I would ask Mr.
      Cuttrell a question . . . .

He explained that the Cuttrells were not free to leave “after [he] checked out a

suspicious vehicle and [he] believe[d] there’s suspicious activity going

on[.]”According to Pternitis, it took about twenty minutes for the canine unit to

arrive, and he had to keep Cuttrell there because he “didn’t have a legal person to

drive the vehicle and was waiting to get the vehicle moved.” Pternitis said that, at

this point, he had been with the Cuttrells about forty-five minutes.

      Pternitis agreed that at some point the Cuttrells asked to leave to “go buy

something or be a patron so they could get [the person] who was going to come

help them remove the vehicle” but the deputy did not allow them to leave. Pternitis

testified that Cuttrell’s “invalid driver’s license” was an “arrestable offense.”

However, he also testified that the Montgomery County jail does not accept anyone
                                         8
arrested for an invalid driver’s license. The deputy explained in a situation where

no vehicle occupant has a valid license, the Department policy was to “Find [a]

licensed driver or tow the vehicle.” He also explained that the Cuttrells never asked

for his help in contacting someone for help, but rather they used their own phones

and that he was not able to take the family anywhere himself because he was on a

motorcycle. The deputy explained that he did not immediately call for a tow-truck

when he determined there was no licensed driver because Cuttrell’s wife “kept on

asking, ‘Please, can we find somebody?’”

      According to Pternitis, when the canine unit arrived, the dog gave a positive

alert on the car and also made several attempts to go inside the vehicle. Pternitis

stated the officers found marijuana in the trunk of the vehicle and that

            Inside the vehicle there was a box containing gift cards to
      Social Security card [sic] that didn’t have a name matching anybody
      in vehicle. There was laminating paper with numbers printed onto it
      and then some gift cards that were altered with the other numbers
      affixed to them.

      No other witnesses testified at the hearing. A video recording of the

encounter was admitted into evidence. Pternitis testified that the recording was

made by a camera mounted on his chest, and that the policy of the Montgomery

County Sheriff is to record all contacts. The video recording includes video and

audio of Cuttrell telling Pternitis that the family was going to Dallas to visit his

                                          9
father. Later, in the video, Cuttrell’s wife can be heard telling Pternitis that the

family was going to Austin and San Antonio and that they were looking for the

mall in The Woodlands. The video recording shows Cuttrell and his wife exit the

vehicle voluntarily, without a request by Pternitis, open the trunk and look for

Cuttrell’s driver’s license. According to the video, at the time of the dog sniff, the

windows to the car were open, at least two doors to the car had been left open by

family members, and the trunk of the car was open. The video recording also

shows that, after the dog gave a positive alert, officers searched and found

marijuana located in a tampon box inside Cuttrell’s wife’s purse which was found

in the trunk of the car. Cuttrell’s wife can be heard on the video telling the officers

that the marijuana belonged to her son. In the audio portion of the recording,

officers can be heard saying they also found gift cards and “papers with . . . stuff

cut up.”

      On January 22, 2015, the trial court denied Cuttrell’s motion to suppress,

and on January 23, 2015, Cuttrell pleaded guilty. Cuttrell’s plea agreement did not

waive his right to appeal the court’s order denying his motion to suppress. The

court then sentenced Cuttrell to six months in state jail. On January 26, 2015,

Cuttrell filed a Request for Findings of Fact and Conclusions of Law, and the court

entered findings of fact and conclusions of law on February 5, 2015. Cuttrell

                                          10
timely filed a notice of appeal challenging the denial of his motion to suppress. In

his appellate brief, he also argues that the trial court erred in assessing attorney’s

fees against him.

                               STANDARD OF REVIEW

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for an abuse of discretion. Id.

We give almost total deference to the trial court’s determination of historical facts,

particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.

2010). The same deference is afforded the trial court with respect to its rulings on

the application of the law to questions of fact and to mixed questions of law and

fact, if resolution of those questions depends on an evaluation of credibility and

demeanor. Id. For mixed questions of law and fact that do not fall within that

category, a reviewing court conducts a de novo review. Id.

      At a suppression hearing, the trial court is the exclusive trier of fact and

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or

any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

                                         11
App. 2000). We must uphold the trial court’s ruling on a motion to suppress if that

ruling was supported by the record and was correct under any theory of law

applicable to the case, even if the trial court gave the wrong reason for its ruling.

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,

541 U.S. 974 (2004). Our task is to determine whether the trial court could have

reasonably denied appellant’s motion to suppress given the evidence in the record

and applicable law. Id.

                               MOTION TO SUPPRESS

      In his first issue, Cuttrell contends that the trial court erred in denying his

motion to suppress. Cuttrell argues that the warrantless search of Cuttrell’s car was

improper because the deputy did not have reasonable suspicion to detain Cuttrell.

The State responds arguing that: (1) the initial encounter between Cuttrell and

Pternitis was consensual and a reasonable person in Cuttrell’s shoes would have

felt free to leave or otherwise terminate the encounter; (2) the deputy had

reasonable suspicion to detain Cuttrell for investigatory purposes, considering the

totality of the circumstances ; and (3) the circumstances “raised more than enough

suspicion to justify continued detention for purposes of conducting a canine sweep

of the appellant’s vehicle.” The State also contends that, “when the canine alerted



                                         12
on the appellant’s vehicle, the officers at the scene had probable cause to conduct a

warrantless search of the vehicle.”

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; State v. Rendon, 477 S.W.3d 805,

808 (Tex. Crim. App. 2015); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App.

2007). To suppress evidence based on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.

Crim. App. 2007). A defendant satisfies this burden by establishing that a search or

seizure occurred without a warrant. Id. The State then has the burden to establish

that the search or seizure was conducted pursuant to a warrant or was reasonable

under the totality of the circumstances. Id. at 672-73.

      An encounter takes place when an officer approaches a citizen in a public

place to ask questions, and the citizen is willing to listen and voluntarily answers.

Crain, 315 S.W.3d at 49. Consensual encounters between police and civilians

require no objective justification. See State v. Castleberry, 332 S.W.3d 460, 466

(Tex. Crim. App. 2011). A consensual interaction or encounter between a civilian

and police does not trigger Fourth Amendment protection, and the civilian is free

to terminate the encounter and to leave. Crain, 315 S.W.3d at 49. As part of an

                                          13
officer’s community caretaking function and the duty to “serve and protect,” an

officer may stop an individual whom the officer reasonably believes is in need of

help. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).

      By contrast, an investigative detention occurs when a person yields to a

police officer’s show of authority under a reasonable belief that he is not free to

leave. See Castleberry, 332 S.W.3d at 466-67. When the court determines whether

an interaction constituted an encounter or a detention, the court focuses on whether

the police officer conveyed a message that compliance with the officer’s request

was required or whether a reasonable person in the civilian’s position would have

felt free to decline the officer’s requests or otherwise terminate the encounter. Id.

Examples of circumstances that might indicate a detention has occurred, even

where the civilian did not attempt to leave, are “the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” United States v.

Mendenhall, 446 U.S. 544, 554-55 (1980) (citing among other sources Terry v.

Ohio, 392 U.S. 1, 19 n.16 (1968)); Crain, 315 S.W.3d at 49-50.

      Generally speaking, an officer is justified in briefly detaining an individual

on less than probable cause and without a warrant in order to investigate possible

                                         14
criminal behavior where the officer can “‘point to specific and articulable facts,

which, taken together with rational inferences from those facts, reasonably warrant

[the] intrusion.’” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)

(quoting Terry, 392 U.S. at 21). “To support an investigatory detention, 1) the

officer’s actions must be justified at the inception of the detention, and 2) the

detention must be reasonably related in scope to the circumstances that justified the

interference in the first place.” Thomas v. State, 420 S.W.3d 195, 199 (Tex. App.—

Amarillo 2013, no pet.). When an officer has reasonable suspicion to believe that a

person is violating the law, the officer may temporarily detain the person for

investigation. State v. Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008)

(citing Terry, 392 U.S. at 21); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005). Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that, when combined with

rational inferences from those facts, would lead him to reasonably conclude that a

particular person is, has been, or soon will be engaged in criminal activity. Ford,

158 S.W.3d at 492-93. The officer must be able to articulate something more than

an “inchoate and unparticularized suspicion” or merely a “hunch.” Jaganathan v.

State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2016); Foster v. State, 326 S.W.3d

609, 613 (Tex. Crim. App. 2010) (quoting Terry, 392 U.S. at 27).

                                         15
      An investigative stop can last no longer than necessary to effectuate the

purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004)

(citing Florida v. Royer, 460 U.S. 491, 500 (1983)); see also Rodriguez v. United

States, 135 S. Ct. 1609, 1611-12 (2015) (where the officer’s original mission is a

traffic stop, a dog sniff for criminal activity unrelated to the traffic mission requires

individualized reasonable suspicion). A temporary detention may continue for a

reasonable period of time until an officer has confirmed or dispelled his original

suspicion of criminal activity, and having a trained drug dog perform an “open air”

search by walking around a vehicle is one reasonable method of confirming or

dispelling a reasonable suspicion that a vehicle contains drugs. Matthews v. State,

431 S.W.3d 596, 603-04 (Tex. Crim. App. 2014). A positive alert by a certified

drug dog is usually enough, by itself, to give officers probable cause to search. See

id. (“If the dog alerts, the presence of drugs is confirmed, and police may make a

warrantless search.”); State v. Weaver, 349 S.W.3d 521, 527-28 (Tex. Crim. App.

2011).

      In its findings of fact, the trial court expressly found Deputy Pternitis “was a

credible witness” and that “his testimony was true and accurate.” The trial court

also concluded that, once Pternitis determined that Cuttrell was driving with a

suspended license, the encounter became a detention for the purpose of

                                           16
investigation because Pternitis then had reasonable suspicion to believe that

Cuttrell was violating the law. See Sheppard, 271 S.W.3d at 287 (an officer may

temporarily detain the person for investigation when the officer has reasonable

suspicion to believe that a person is violating the law).

      Additionally, the evidence presented at the hearing established that Pternitis

could not allow the family to drive away as none of the occupants of the vehicle

had a valid driver’s license, and the Montgomery County Sheriff’s policy did not

permit the officer to take Cuttrell to jail for driving with a suspended license. The

trial court concluded that the detention was reasonable because Pternitis had not

yet concluded the initial investigation. See Matthews, 431 S.W.3d at 603 (a

temporary detention may continue for a reasonable period of time until an officer

has confirmed or dispelled his original suspicion of criminal activity).

      During the detention, Pternitis observed the following: Cuttrell was unable

to explain why the family was in that part of The Woodlands if they were on their

way to Dallas; when Pternitis asked Cuttrell a question, Cuttrell’s wife answered;

whenever Pternitis attempted to look through the windows into the vehicle, the

family attempted to distract him and he thought something was in the car the

family did not want Pternitis to see; an unprotected expensive laptop and printer

were in the trunk of the car, but there was no luggage, even though the family was

                                          17
on vacation; and Cuttrell was on probation for drug charges. The trial court

concluded that Pternitis had specific, articulable facts that, together with rational

inferences from those facts, could have led him to reasonably conclude that

Cuttrell was, had been, or soon would be engaged in criminal activity. According

to the testimony from Pternitis, based on his observations and experience, Pternitis

suspected that the family could be hiding something, specifically that narcotics

could be inside the vehicle. See Ford, 158 S.W.3d at 492-93.

      The trial court found that, shortly after arriving at the scene, a trained canine

alerted to the presence of narcotics in the vehicle. The trial court also found that

the dog’s positive alert for narcotics established probable cause to search the entire

vehicle and any compartments or containers that could reasonably hold narcotics.

See Matthews, 431 S.W.3d at 604 (a positive alert by a trained drug dog confirms

the presence of drugs, after which the police may make a warrantless search of a

vehicle).

      On this record, and deferring to the trial court’s findings of fact, the trial

court could have reasonably concluded that the warrantless search was reasonable

under the totality of circumstances. See Amador, 221 S.W.3d at 672-73 (Once a

defendant has proved the search was warrantless, the State has the burden to

establish that the search or seizure was reasonable under the totality of the

                                         18
circumstances or conducted pursuant to a valid warrant.). We conclude that the

trial court’s ruling denying the motion to suppress was supported by the record and

was correct under the applicable law. The trial court did not err in denying

Cuttrell’s motion to suppress, and we overrule Cuttrell’s first issue on appeal.

                                 ATTORNEY’S FEES

      In his second issue, Cuttrell argues that after being found indigent, his status

did not change before he was sentenced. He contends that the trial court erred in

assessing $3,525 in attorney’s fees in the judgment. The State agrees.

      A trial court may tax a defendant who was previously declared indigent with

attorney’s fees if there is a material change in the defendant’s ability to pay

attorney’s fees between the date the trial court initially determined the defendant to

be indigent and appointed trial counsel and the date of the final judgment. See Tex.

Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2015); see also

Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.).

      In this case, the record shows that the trial court found Cuttrell to be indigent

and appointed trial counsel before entry of the judgment. Following Cuttrell’s

sentencing, the trial court also appointed counsel to represent Cuttrell in his appeal.

The trial court made no findings regarding whether any material change occurred

in Cuttrell’s status as an indigent defendant. Furthermore, the appellate record does

                                          19
not reflect that Cuttrell’s financial circumstances materially changed after he was

found indigent. See Tex. Code Crim. Proc. Ann. art. 26.04(p); Mayer v. State, 309

S.W.3d 552, 556 (Tex. Crim. App. 2010); Roberts, 327 S.W.3d at 884. Therefore,

we sustain issue two.

      The Texas Rules of Appellate Procedure authorize this Court to render the

judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3.

Therefore, we modify the judgment of the trial court by deleting the award of

$3,525 in attorney’s fees. Otherwise, we affirm the trial court’s judgment as

modified.

      AFFIRMED AS MODIFIED.




                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on February 22, 2016
Opinion Delivered April 13, 2016
Do Not Publish

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




                                        20
