      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00096-CR



                                 Walter Lee Scott, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 73759, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Walter Lee Scott, Jr., was charged with assaulting Kassandra Holt, who was a

member of Scott’s family or household, “by intentionally, knowingly, or recklessly impeding the

normal breathing or circulation of . . . Holt by applying pressure to [her] throat or neck.” See Tex.

Penal Code § 22.01(a) (setting out elements of offense of assault), (b)(2)(B) (elevating offense level

from class A misdemeanor to third-degree felony if certain elements are met). In an open plea, Scott

pleaded guilty to the charges and signed a judicial confession as part of his plea paperwork. After

accepting Scott’s plea and finding Scott guilty of the offense, the district court sentenced Scott to

five years’ imprisonment and ordered him to pay $50 in restitution. See id. § 12.34 (setting out

permissible punishment range for third-degree felony); Tex. Code Crim. Proc. art. 42.037(a)

(authorizing imposition of restitution). In four issues on appeal, Scott contends that the evidence

supporting his guilt was insufficient, that there is no factual basis supporting the restitution order,
and that the judgment should be corrected to reflect that he did not plead guilty under the terms of

a plea bargain. We will modify the district court’s judgment and affirm the district court’s judgment

of conviction as modified.


                                           DISCUSSION

Sufficiency of the Evidence

               In his first issue on appeal, Scott asserts that the district court erred by accepting his

guilty plea because the evidence presented by the State in support of the plea “was insufficient to

satisfy article 1.15 of the Code of Criminal Procedure.” Specifically, he contends that the written

judicial confession that he signed was insufficient to support his plea. In his second issue, Scott

contends that even if the evidence introduced during the sentencing phase could “be used to satisfy

article 1.15, the evidence failed to establish that he committed the charged offense.”

               When presenting his second issue on appeal, Scott acknowledges that he testified

during the punishment hearing regarding the incident and that courts have held that evidence

produced during the punishment hearing can be considered when determining if a guilty plea is

properly supported. See Brooks v. State, Nos. 03-13-00251–00254-CR, 2014 WL 2918000, at *3

(Tex. App.—Austin June 19, 2014, no pet.) (mem. op., not designated for publication) (noting that

courts may consider evidence introduced during punishment phase to see if plea is supported);

Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (explaining

that “[e]vidence adduced at a sentencing hearing may also suffice to substantiate a guilty plea”);

Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (rejecting

argument that evidence of guilt must be presented during “guilt/innocence phase” and providing that

                                                   2
“article 1.15 does not distinguish between evidence offered at the guilt/innocence phase and the

punishment phase”); cf. Carroll v. State, 975 S.W.2d 630, 631 (Tex. Crim. App. 1998) (explaining

that after defendant enters guilty plea, proceeding “becomes a ‘unitary trial’ to determine the

remaining issue of punishment” (quoting Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App.

1982) (op. on reh’g))). However, he insists that the testimony produced during the hearing was

insufficient because he did not identify Holt as the victim, state that she was a member of his

household, describe any bodily injury that she may have suffered, or specify that he impeded her

breathing or circulation.

               Ultimately, we determine that the judicial confession provided sufficient evidence

to support Scott’s conviction. Accordingly, we need not address Scott’s second issue on appeal

challenging whether there was sufficient evidence produced at the punishment hearing to support

his conviction. See Weatherspoon v. State, No. 03-15-00237-CR, 2016 WL 3919673, at *3 n.5 (Tex.

App.—Austin July 15, 2016, no pet. h.) (mem. op., not designated for publication). However, we

do note that during the sentencing hearing, Scott stated that he “accept[ed] full responsibility for

[his] actions” and that he wanted to apologize to “the victim and the Court.” Further, he agreed that

wrapping a belt around a woman’s throat was “a particularly violent assault,” and he related that he

had “no good reason” for why he would “wrap a belt around another human being’s neck.”

               Regarding Scott’s first issue, we note that article 1.15 of the Code of Criminal

Procedure imposes a procedural safeguard before a trial court may render a conviction based on a

guilty plea. Tex. Code Crim. Proc. art. 1.15; see Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.

App. 2009). Specifically, the provision prohibits a court from “render[ing] a conviction in a felony

case” unless evidence was presented supporting the defendant’s guilt even when a defendant

                                                 3
enters a plea of guilty. Menefee, 287 S.W.3d at 13. “The evidence does not have to establish the

defendant’s guilt beyond a reasonable doubt but must embrace every element of the offense

charged.” Jones, 373 S.W.3d at 793; see also Menefee, 287 S.W.3d at 13-14 (discussing types of

evidence that may be considered). “A deficiency in one form of proof may be compensated for by

other competent evidence in the record.” Jones, 373 S.W.3d at 793. A judicial confession can

satisfy the requirements of article 1.15 if it embraces all of the elements of the charged offense.

See Menefee, 287 S.W.3d at 13.

               As set out above, Scott was charged with assaulting Holt. Subsection 22.01(a)(1) of

the Penal Code specifies that a person commits the offense of assault if he “intentionally, knowingly,

or recklessly causes bodily injury to another.” Tex. Penal Code § 22.01(a)(1). Further, subsection

22.01(b)(2)(B) elevates the offense level if the person causes injury to someone whose relationship

with the person is governed by provisions of the Family Code and if “the offense is committed by

intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of

the [victim] by applying pressure to the [victim]’s throat or neck or by blocking the [victim]’s nose

or mouth.” Id. § 22.01(b)(2)(B). Consistent with those provisions, the information in this case

alleged that Scott “did then and there intentionally, knowingly, and recklessly cause bodily injury

to Kassandra Holt, a member of the defendant’s family OR member of the defendant’s household,

by intentionally, knowingly, and recklessly impeding the normal breathing or circulation of the blood

of the said Kassandra Holt by applying pressure to the throat or neck of the said Kassandra Holt.”

               During the plea hearing, Scott pleaded guilty to the charged offense. Furthermore,

as part of entering his plea, Scott signed a judicial confession that stated that he had read the



                                                  4
information “in this case,” that he “committed each and every act alleged,” and that “[a]ll facts

alleged in the . . . information are true and correct.” The district court took judicial notice of the

judicial confession during the plea hearing, and Scott stated that he had “[n]o objection” when the

State asked the district court to take juridical notice.1

                When challenging the sufficiency of the evidence in his first issue, Scott acknowledges

that he signed a judicial confession, but he insists that the confession was insufficient because it

was not sworn and because there was no jurat showing that he had made the confession while

under oath. Furthermore, Scott contends that by entering a guilty plea, he effectively became a

witness against himself and that, therefore, his judicial confession must have been made while

under oath in order to serve as competent evidence. Cf. Alexander v. State, No. 03-95-00362-CR,

1997 WL 45127, at *5 (Tex. App.—Austin Feb. 6, 1997, pet. ref’d) (stating that, in general,




        1
          On appeal, Scott asserts that the district court’s taking judicial notice of the judicial
confession was a “nullity” and refers to various cases addressing circumstances in which courts have
criticized the taking of judicial notice of something other than judicial confessions. See, e.g., Ernst
v. Child & Youth Servs., 108 F.3d 486, 498-99 (3d Cir. 1997) (determining that trial court did not
err by not taking judicial notice of contents of affidavit when affidavit had not “been offered into
evidence” and when person making affidavit “had not been called to testify”);United States v.
Hawkins, 76 F.3d 545, 551-52 (4th Cir. 1996) (stating that identity of defendant may not be proven
by judicial notice because identity was not fact generally known, because identity is not “capable of
determination by resort to sources whose accuracy cannot reasonably be questioned,” and because
identity is element “that is frequently and quite reasonably disputed”). However, one of our sister
courts of appeals has explained that trial courts may take judicial notice of judicial confessions; that
“when the trial court takes judicial notice of a judicial confession, the State is not required to
introduce the judicial confession into evidence”; and that when “a trial court takes judicial notice
of adjudicative facts, it authorizes the fact-finder to accept the facts as true without requiring formal
proof.” Chindaphone v. State, 241 S.W.3d 217, 219 (Tex. App.—Fort Worth 2007, pet. ref’d);
see also Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(providing that “[a] written confession approved by the court, and thus considered by the court, can
be sufficient to substantiate a guilty plea even if not introduced into evidence”).

                                                    5
“unsworn testimony is inadmissible and is not legal evidence on which a judgment can be based”);

see also Tex. R. Evid. 603 (requiring witness to “give an oath or affirmation” before testifying that

he will “testify truthfully” and that oath “must be in a form designed to impress that duty on the

witness’s conscience”).2




       2
          In his brief, Scott points to cases in which a court determined that a sworn judicial
confession was sufficient to support a defendant’s guilty plea, see Killion v. State, 503 S.W.2d 765,
766 (Tex. Crim. App. 1973); Degay v. State, 455 S.W.2d 205, 206-07 (Tex. Crim. App. 1970);
Chavis v. State, No. 08-10-00025-CR, 2011 WL 3807747, at *6 (Tex. App.—El Paso Aug. 26, 2011,
pet. ref’d) (not designated for publication); Chindaphone, 241 S.W.3d at 223 (Dauphinot, J.,
dissenting) (displaying image of judicial confession found sufficient by majority that shows
document was sworn before district clerk), but those cases do not state that a judicial confession
must be sworn in order to be effective. In addition, Scott points to Beaty v. State, 466 S.W.2d 284
(Tex. Crim. App. 1971), and asserts that the case stands for the proposition that an unsworn judicial
confession cannot support a guilty plea. However, we do not agree with Scott’s reading of that case.
In that case, Beaty filed a pro se brief asserting that his appeal was not frivolous and that there
was insufficient evidence supporting his two guilty pleas. Id. at 285. In determining that Beaty’s
assertions had merit, the court of criminal appeals noted that most of the stipulated evidence
presented did not comply with the requirements of the version of article 1.15 in effect at the time
because it “was orally dictated into the record” rather than being presented in written form. Id. at
285-86; see Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 2, art. 1.15, 1967 Tex. Gen. Laws 1732,
1733 (providing that evidence may be stipulated if defendant consents “to the introduction of
testimony by affidavits, written statements of witnesses, and any other documentary evidence”)
(amended 1971, 1973, 1991) (current version at Tex. Code Crim. Proc. art. 1.15 (allowing oral
stipulation of evidence as well)). Further, the court explained that the only “written statement or
documentary evidence offered” in one of the two cases considered on appeal “was the unsworn
extrajudicial written confession of the appellant which is to be distinguished from a judicial
confession.” Beaty, 466 S.W.2d at 286. Although the court determined that an unsworn extrajudicial
confession was insufficient, the court explicitly determined that the document was distinguishable
from a judicial confession. Furthermore, the court did not state that a written judicial confession
must be sworn in order to support a guilty plea. See id.

        In a similar set of arguments, Scott cites Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App.
2009), and asserts that the court of criminal appeals determined that if the State intends to use a
defendant’s written statement to support a guilty plea, the statement must be sworn. As support for
this proposition, Scott highlights the fact that many of the cases referred to by the court in Menefee
involved either a sworn confession or testimony given under oath. See id. at 13 n.17 (citing various

                                                  6
               However, “it is well-established that a judicial confession need not be sworn to

before a clerk or other authority to support a conviction.” Weatherspoon, 2016 WL 3919673, at *2;

see Walker v. State, No. 03-03-00018-CR, 2003 WL 21554285, at *2 (Tex. App.—Austin July 11,

2003, no pet.) (mem. op., not designated for publication) (noting that “[t]here is no requirement that

the defendant swear to the waiver and stipulation before the clerk or anyone else”); Ybarra v. State,

93 S.W.3d 922, 927 n.4 (Tex. App.—Corpus Christi 2002, no pet.) (observing that “the judicial

confession was neither sworn to before the clerk nor signed by the judge” but explaining that “these

omissions do not affect either the confession’s validity or admissibility”); Weiss v. State, Nos.

05-92-01764—01768-CR, 1997 WL 53354, at *2 (Tex. App.—Dallas Feb. 11, 1997, no pet.) (not




cases after stating that judicial confessions covering all elements of charged offense “will suffice to
support the guilty plea”).

        We find Scott’s reliance on Menefee to be misplaced. In that case, Menefee pleaded guilty
to the alleged crime and executed a stipulation admitting that he committed the offense; however,
the written stipulation failed to include all of the elements of the offense. Id. at 10-11. Accordingly,
the court of criminal appeals examined the remainder of the record to determine “whether the record
might otherwise contain evidence sufficient to sustain [Menefee]’s guilty plea.” Id. at 11. When
examining the record, the court noted that during a “sworn colloquy between the trial court” and
Menefee, Menefee acknowledged that he was pleading “‘guilty’ to the charged offense (without
expressly admitting that the charges are ‘true and correct’)” and concluded that this type of “sworn
acknowledgment” did not qualify as a judicial confession “sufficient to satisfy Article 1.15.” Id. at
11, 14. On the contrary, the court explained that Menefee was simply entering his plea and did not
actually admit that he was guilty of the offense. Id. at 15; see also id. at 18 (explaining that “[a]
guilty plea under oath is still just a guilty plea”).

        Unlike Menefee, there is a judicial confession in this case that embraces all of the elements
of the offense at issue. Although Scott correctly points out that the court in Menefee stated that “a
sworn written statement” and testimony “under oath in open court” will be sufficient to support a plea
as long as the “judicial confession covers all of the elements of the charged offense,” see id. at 13,
the court did not state that unsworn judicial confessions would be insufficient. On the contrary, the
court explained that “[e]vidence offered in support of a guilty plea may take many forms.” See id.

                                                   7
designated for publication) (stating that “[j]udicial confessions are evidentiary in nature and are not

required to be sworn”).

                If a judicial confession states that the defendant has read the charging instrument and

that he admits to having committed each alleged act, the confession alone is sufficient to support a

conviction from a guilty plea under article 1.15. See Chindaphone v. State, 241 S.W.3d 217, 220

(Tex. App.—Fort Worth 2007, pet. ref’d) (concluding that judicial confession was sufficient to

support plea where it read as follows: “I have read the indictment or information filed in this case

and I committed each and every act alleged therein”). Based on the language of the judicial

confession and the information, we must conclude that the judicial confession embraced every

element of the charged offense and “contained sufficient reference to the [information]’s allegations

to support the trial court’s conviction on his guilty plea under article 1.15.” See Weatherspoon,

2016 WL 3919673, at *3; see also Brooks, 2014 WL 2918000, at *2-4 (determining that conviction

on guilty plea was proper when defendant signed stipulation of guilt stating that he had read

indictments, which set out all required elements, and that State’s evidence would show he had

committed all alleged acts); Tijerina v. State, 264 S.W.3d 320, 323-24 (Tex. App.—San Antonio

2008, pet. ref’d) (mem. op.) (concluding that conviction on guilty plea was proper when defendant

signed document stating that he judicially confessed that “‘all the acts, charges, and allegations’” in

indictment were “‘true and correct’”); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio

1998, pet. ref’d) (explaining that “judicial confession is sufficient to sustain a conviction upon a guilty

plea even if the defendant does nothing more than affirm that the allegations in the indictment are

true and correct”).



                                                    8
                For all of these reasons, we overrule Scott’s first two issues on appeal.


Order of Restitution

                In his third issue on appeal, Scott asserts that the district court erred by ordering

him to pay $50 in restitution when “the record does not contain a factual basis to support” the

ordered restitution.

                “In addition to any fine authorized by law, the court that sentences a defendant

convicted of an offense may order the defendant to make restitution to any victim of the offense.”

Tex. Code Crim. Proc. art. 42.037(a). “Restitution is a victim’s statutory right,” and the statutes

authorizing restitution are interpreted “liberally to effectuate fairness to the victims of crime.” Burt

v. State, 445 S.W.3d 752, 756-57 (Tex. Crim. App. 2014). “If the offense results in damage to or

loss or destruction of property of a victim of the offense, the court may order the defendant” to return

the property or “if return of the property is impossible or impractical or is an inadequate remedy, to

pay an amount equal to the greater of” the property’s value “on the date of the damage, loss, or

destruction” or the property’s value “on the date of sentencing, less the value of any part of the

property that is returned on the date the property is returned.” Tex. Code Crim. Proc. art. 42.037(b)(1).

The State has “[t]he burden of demonstrating the amount of the loss sustained by a victim as a

result of the offense.” Id. art. 42.037(k).

                Appellate courts review a trial court’s order of restitution under an abuse-of-discretion

standard of review. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). Under that

standard, “the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of

reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting

                                                   9
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). “[D]ue process places three limitations

on the restitution a trial judge may order: (1) the restitution ordered must be for only the offense for

which the defendant is criminally responsible; (2) the restitution must be for only the victim or

victims of the offense for which the defendant is charged; and (3) the amount must be just and

supported by a factual basis within the record.” Burt, 445 S.W.3d at 758. “[I]f there is a lack of a

sufficient factual basis,” the reviewing court “should vacate and remand the case for a restitution

hearing because the trial judge is authorized to assess restitution, but the amount of restitution is not

(yet) supported by the record.” Id.; see also Miller v. State, 343 S.W.3d 499, 503 (Tex. App.—Waco

2011, pet. ref’d) (presuming that trial court had authority to order restitution because no party

presented issue regarding trial court’s authority and remanding case to trial court for new restitution

hearing when trial court abused its discretion by ordering restitution for cost of repair).

                When challenging the restitution order, Scott asserts that there was no evidence

presented regarding restitution in the plea hearing or the sentencing hearing, that the only mention

of restitution occurred when the district court orally pronounced its judgment and ordered him to pay

$50 in restitution, and that the restitution obligation was later incorporated into the district court’s

judgment of conviction. However, restitution was mentioned in the victim-impact portion of the

presentence-investigation report, and Scott answered, “No, Your Honor,” when the district court

asked if there were any “corrections or additions” to be made to the report. See Tolbert v. State,

Nos. 01-10-00536—00538-CR, 2011 WL 3359718, at *2-3 (Tex. App.—Houston [1st Dist.] Aug. 4,

2011, pet. ref’d) (mem. op., not designated for publication) (explaining that trial court may take

judicial notice of fact in presentence-investigation report in absence of objection and that if there is



                                                   10
no objection regarding accuracy of fact in report, no additional proof regarding fact need be offered);

Jones v. State, 713 S.W.2d 796, 797-98 (Tex. App.—Tyler 1986, no pet.) (upholding restitution

order based in part on presentence-investigation report when no challenge to accuracy of report

was made). Specifically, the report documents Holt’s assertion that Scott threw her phone at her

during the assault and that her phone was damaged resulting in a loss of $50.

               In light of the preceding, we cannot agree with Scott’s assertion that there is no

factual basis for the restitution award and must conclude that the district court did not abuse its

discretion by ordering Scott to pay $50 in restitution.

               In his reply brief, Scott points to the language from subarticle 42.037(k) of the

Code of Criminal Procedure providing that the State has “[t]he burden of demonstrating the amount

of the loss sustained by a victim as a result of the offense.” Tex. Code Crim. Proc. art. 42.037(k).

Based on this language, Scott contends that restitution was not permissible in this case because Scott

was not charged with or convicted of damaging or stealing Holt’s cell phone. As support for this

assertion, Scott principally relies on Reasor v. State, 281 S.W.3d 129 (Tex. App.—San Antonio

2008, pet. ref’d). In that case, Reasor pleaded guilty to the offense of possession of cocaine, and the

trial court deferred his adjudication of guilt and placed him on community supervision. See id. at

131; see also Tex. Health & Safety Code § 481.115 (setting out offense of possession of controlled

substance). Approximately eight years later, the State moved to revoke his community supervision

on the grounds that he had committed several subsequent offenses, including committing

criminal mischief by damaging the home that he was renting. Reasor, 281 S.W.3d at 131-34;

see Tex. Penal Code § 28.03 (listing elements for crime of criminal mischief). The trial court found



                                                  11
that allegation to be true and ordered him to pay his landlord restitution for the damage caused.

Reasor, 281 S.W.3d at 131. On appeal, the reviewing court explained that “[a] trial court may

impose restitution only for the victim of the offense for which the defendant was convicted.” Id.

at 135. Accordingly, the appellate court determined that the trial court lacked the authority to order

that restitution be paid to Reasor’s landlord because his landlord was not a victim “of Reasor’s

original offense of conviction.” Id.

               Unlike Reasor, the restitution in this case was ordered as part of Scott’s conviction.

Moreover, the restitution was ordered to the victim of the charged offense. Although Scott correctly

points out that he was not charged with or convicted of stealing or damaging Holt’s phone, the phone

was damaged during the offense for which he was convicted. Accordingly, we do not agree that the

analysis in Reasor compels a conclusion that the district court was without the authority to order the

restitution at issue, and we believe that the restitution was proper because it was imposed to cover

“the loss sustained by a victim as a result of the offense.” Tex. Code Crim. Proc. art. 42.037(k).

               For all of these reasons, we overrule Scott’s third issue on appeal.


Plea Bargain

               In his final issue on appeal, Scott contends that the judgment of conviction should

be reformed “to reflect that [he] did not plead guilty pursuant to a plea bargain.” As set out

above, when entering his plea, Scott signed plea papers that were entitled “WRITTEN PLEA

AGREEMENT” and included the judicial confession discussed earlier. The first section of the

agreement explained that when Scott entered his guilty plea, the State agreed to the following

recommendation: “OPEN.” However, the judgment of conviction included the statement “SEE

                                                 12
ATTACHED DISCLOSURE OF PLEA RECOMMENDATIONS” under the line “Terms of Plea

Bargain.” See Elliot v. State, No. 08-13-00035-CR, 2014 WL 4922624, at *2 (Tex. App.—El Paso

Sept. 30, 2014, no pet.) (not designated for publication) (concluding that defendant’s open plea

without agreement with State to recommend reduced sentence or any other bargain was not plea

bargain); Krueger v. State, No. 03-05-00093-CR, 2006 WL 305032, at *5 (Tex. App.—Austin

Feb. 9, 2006, pet. ref’d) (mem. op., not designated for publication) (explaining that there is no plea-

bargain agreement when there is open plea as to punishment). Although the State points out that the

judgment does not specifically state that there was a plea bargain, it concedes that if the statement

“SEE ATTACHED DISCLOSURE OF PLEA RECOMMENDATIONS” could imply otherwise, this

Court should reform the judgment to delete the reference. This Court has the authority to modify

incorrect judgments when it has the information necessary to do so, see Tex. R. App. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993), and for the sake of clarity and

accuracy, we agree that the statement should be deleted. Accordingly, we sustain Scott’s fourth

issue on appeal.


                                          CONCLUSION

               Having sustained Scott’s fourth issue on appeal, we modify the judgment of conviction

to remove the statement “SEE ATTACHED DISCLOSURE OF PLEA RECOMMENDATIONS”

from the line underneath the heading “Terms of Plea Bargain” and to instead reflect that the “Terms

of Plea Bargain” are “Not Applicable.” Having overruled Scott’s remaining three issues on appeal,

we affirm the trial court’s judgment of conviction as modified.




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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Modified and, as Modified, Affirmed

Filed: August 24, 2016

Do Not Publish




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