         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   March 12, 2002 Session

                  STATE OF TENNESSEE v. TIMOTHY J. KING

                  Direct Appeal from the Circuit Court for Grundy County
                            No. 3315    Buddy D. Perry, Judge



                      No. M2001-01880-CCA-R3-CD - Filed May 7, 2002


The defendant was indicted for second degree murder, convicted by a jury of the lesser-included
offense of voluntary manslaughter, and subsequently sentenced to a term of six years. In this appeal,
the defendant contends: (1) the evidence was insufficient to support his conviction; (2) the state
improperly cross-examined him concerning his use of illegal drugs; (3) the district attorney
committed prosecutorial misconduct in closing argument; (4) the trial court improperly instructed
the jury concerning the weight to be given the defendant's testimony; and (5) the defendant's
sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial
court in all respects.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Philip A. Condra, District Public Defender, for the appellant, Timothy J. King.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven H. Strain and Sherry Durham Gouger,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

                                      TRIAL TESTIMONY

       On December 12, 1998, the defendant shot and killed the victim with a blast from a twelve-
gauge shotgun. The circumstances surrounding the homicide are disputed.

       Acquilla Shrum, the victim’s mother and the defendant’s grandmother, testified the victim
lived with her. She testified that several months prior to the victim’s death, she told the defendant
to bring her an old shotgun to hang on a gun rack. She further stated that on Friday, December 11,
1998, one day prior to the victim’s death, the defendant and his girlfriend brought her a shotgun.
She informed the defendant that it was not the type of shotgun she desired, and the defendant agreed
to retrieve it the following day. On Saturday, Shrum left at approximately 5:30 p.m. for her
daughter’s house and was not present when the victim was shot.

       On cross-examination, Shrum stated the victim drank “that hundred proof” heavily on Friday,
December 11th and Saturday, December 12th; the victim drank “24 hours a day;” since she would not
allow alcohol in the house, the victim “trotted in and out all night [and all day] long” procuring it;
and she requested the defendant and his girlfriend stay at her house on the night of Friday, December
11th until approximately 10:00 p.m. because the victim was being “really unpleasant.” Shrum
additionally stated the defendant placed the shotgun on the gun rack in her bedroom prior to his
leaving Friday night; the bathroom door and door brace had no holes in it when she left on Saturday
evening; the victim often sat on the end of her sofa wearing a black hat; and she helped raise the
defendant and described their relationship as “very close.”

        Teresa Judkins was the defendant’s girlfriend in December of 1998. Judkins testified she and
the defendant brought a shotgun and shells to Acquilla Shrum’s home on Friday, December 11th .
She further stated they returned to Shrum’s house on Saturday, December 12th with the defendant’s
niece, and while at Shrum’s house, the defendant and victim did not “fuss[].” She, the defendant,
and his niece left the residence to eat supper, and after eating, they drove the defendant’s niece to
her home and returned to Shrum’s residence at approximately 6:30 p.m. She further testified the
defendant exited the car, leaving her in the vehicle, and she heard a noise “like something hit my
car.” She stated the defendant exited the house, informed her that he had broken a bowl, re-entered
the house, and again exited in approximately five minutes holding the shotgun.

         Judkins further testified the defendant offered no explanation of why he was carrying the
gun; he told her he wanted to show her where his uncles lived; the defendant provided her with
directions; and she drove to the first uncle’s house, where the defendant exited the car, went inside
the house, and returned stating he wanted her to drive to another uncle’s house. When they arrived
at their next destination, she and the defendant exited the car, and after staying a short while, they
returned to the car. While she drove down the driveway, the defendant jumped out of the moving
car and ran toward the house. The defendant then fought with his uncle, and his family members
duct-taped him to get him under control.

       Paul Shrum, an uncle of the defendant and son of Acquilla Shrum, testified he lived
approximately one and one-half miles from his mother’s home. Shrum testified that during the late
evening of December 12th, the defendant came to his residence apologizing for “some things that
had happened in the past and to borrow some money.” He described the defendant as being
“wasted” and stated the defendant never mentioned the victim’s name.

         Medical Examiner Dr. Charles Harlan performed the autopsy on the victim. Dr. Harlan
testified the victim died as a result of a straightly fired shotgun blast to the side of the head, angled

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neither up nor down, from a distance of approximately 21 to 36 inches. He stated that the victim
exhibited no evidence of defensive wounds. Dr. Harlan stated the victim’s blood alcohol level was
between 0.28% and 0.34 % at the time of death, and he stated the victim tested positive for marijuana
use within 24 hours of his death.

        The defendant’s uncle, Hiram Shrum, testified the defendant came to his residence at
approximately 7:00 p.m. on Saturday, December 12th. Shrum stated the defendant was “fidgety
acting” and said “he had done something bad.” Shrum further testified the defendant acted more
erratically than usual, jumped out of the car, and ran toward Shrum while the car was still moving
in the driveway. When Shrum determined he was unable to calm the defendant, he wrestled with
the defendant and eventually secured the defendant with duct tape. Shrum recovered one shell
casing from the defendant’s front pocket, and Shrum’s son recovered the shotgun from the vehicle.
The defendant was taken to the hospital, and the gun and shell were turned over to law enforcement
officers. Shrum additionally stated his brothers discovered damage to the bathroom door several
days after officers initially processed the scene.

        Shrum testified on cross-examination that the defendant repeatedly said that Acquilla Shrum
was dead; when they informed him that she was living, the defendant refused to believe them; and
the defendant was crying and very emotional. Shrum opined the defendant was under the influence
of an intoxicant.

        TBI agent Larry Davis testified the victim’s body was slumped over on the couch; all items
on the coffee table in front of the victim appeared to be undisturbed; and there were no signs of a
struggle. Agent Davis opined the victim was shot in a seated position on the couch. Agent Davis
further testified no prints were recovered from a pair of shears found on the floor, and the gun was
not processed for prints. During an interview with the defendant, the defendant stated he shot the
victim after the victim said he had harmed the defendant’s grandmother and attacked the defendant
with the shears, threatening his life. Agent Davis testified the defendant said he “hated” the victim
for being mean to his grandmother. The defendant never stated the victim shot at him.

       On cross-examination, Agent Davis stated officers were summoned back to the scene the
following day, after family members found damage to the bathroom door and door jam. They
recovered a pellet consistent with the pellets recovered previously.

        The defendant testified that he and Judkins brought Acquilla Shrum a loaded shotgun on
Friday. Although she stated she did not want it, he placed it on her gun rack, stating he would
retrieve it on Saturday. He stated that because the victim was drinking, his grandmother requested
they stay with her until approximately 10:00 p. m., and he saw the victim strike his grandmother in
the chest.

        The defendant testified he and Judkins took his niece out for dinner on Saturday. The
defendant stated that after they finished eating, he and Judkins dropped his niece off at her residence
and returned to his grandmother’s house. The defendant stated he then went inside, leaving Judkins

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in the car, and not seeing his grandmother, asked the victim where she was. He said the victim
responded he had “gotten rid” of her. The defendant further testified they fought on the couch, until
the defendant broke free and went looking through the house for his grandmother. While he was in
the bedroom, the victim shot at him; the blast hit the bathroom door; while the victim reloaded, the
defendant grabbed a pair of shears and ran toward the victim; a struggle ensued, and the gun
accidently went off hitting the victim; and he removed the gun and shell from the scene because his
“nerves got all distorted.” The defendant stated he then went to his uncles’ houses to tell them what
had occurred, but he did not recall much of the conversations because his “nerves . . . just went all
crazy.”

        On cross-examination, the defendant explained that his job, where he only worked “on and
off,” was the source of his nerve problem, and he had been hospitalized a few days prior to the
victim’s death. The defendant further stated that he had not used drugs nor consumed alcohol on
Friday, December 11th or Saturday, December 12th, and had not used drugs on that prior Wednesday
or Thursday. When confronted with medical records from his hospital stay, the defendant admitted
he tested positive for methamphetamine and had used it earlier that week. He further stated he was
unaware that he told the sheriff the victim lunged at him with the shears.

       Paul Shrum was recalled and testified for the defense that he previously witnessed the victim,
wearing a gun, threaten and argue with Acquilla Shrum. Paul Shrum stated he fought with the
victim and threw him off the property. Shrum additionally stated he had seen his mother with
blackened eyes where the victim had struck her. Acquilla Shrum was recalled and testified the
victim had previously scratched her face and held her by her throat until she fell and passed out.

       The jury rejected the indicted charge of second degree murder and found the defendant guilty
of voluntary manslaughter.


                           I. SUFFICIENCY OF THE EVIDENCE

       The defendant contends the evidence is insufficient to sustain his conviction.            We
respectfully disagree.

A. Standard of Review

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the finding
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App. 1996).



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        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App. 1995).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, "[a] guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State." 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

B. Analysis

      “Voluntary manslaughter is the intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.” Tenn. Code Ann. § 39-13-211(a).

        We view the evidence in a light most favorable to the state. The evidence shows the
defendant shot the victim. Dr. Harlan testified the pellets traveled straightly, at no angle, from a
distance of approximately two or three feet. Furthermore, TBI Agent Larry Davis opined the victim
was shot in a seated position on the couch. Acquilla Shrum testified the victim often sat on the end
of the couch wearing a black hat; the black hat was found near the body. The crime scene
photograph, illustrating the position of the victim’s body, allowed the jury to reasonably conclude
the victim was shot while seated in his usual position wearing the black hat. Furthermore, there was
no evidence of a struggle in the living room near the victim’s body.

        Defendant insists there were two shots fired, one by the victim into the bathroom door in the
direction of the defendant and the other being the shot that struck the victim. The state argues the
evidence does not necessarily establish that the victim ever fired at the defendant. Regardless, even
if a shot were fired by the victim into the bathroom door, this is not determinative of the issue of
self-defense. The issue of self-defense presents a question for the jury’s determination, and the jury
may reject it. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997). Here, viewing the
evidence in a light most favorable to the state, the jury could have rationally concluded beyond a
reasonable doubt that: (1) the defendant shot the victim in a state of passion produced by the victim’s
statements and conduct; and (2) even if the victim previously fired the gun toward the defendant into

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the door, the defendant subsequently shot the victim at a time when the unarmed victim was seated
on the couch presenting no threat to the defendant. Thus, the jury could reasonably conclude that
the defendant committed voluntary manslaughter and did not act in self-defense.


                         II. DEFENDANT’S PRIOR DRUG USAGE

        The defendant contends the trial court improperly allowed cross-examination concerning
the defendant’s prior drug usage. We find no reversible error.

        The defendant repeatedly testified on direct examination that he was unable to recall events
on the day of the shooting because of his “nerves.” He testified that his hospitalization a few days
prior to the shooting was due to his nerves, and the cause of his nervous condition was his job as
manager of a family store. The defendant denied using any drugs or alcohol on Friday, December
11th or Saturday, December 12th, and he further denied any illegal drug usage on the previous
Wednesday or Thursday. The state, over a general objection, questioned the defendant concerning
medical records from his hospitalization following the shooting, indicating he tested positive for
methamphetamine and amphetamine. The defendant then conceded that he used methamphetamine
“[p]robably earlier in the week [prior to the shooting].” In addition, the state questioned the
defendant about his “long history of chemical abuse,” which the defendant denied.

       The trial court allowed this line of questioning but advised the jury as follows:

               The use or non-use of drugs is admissible only as it would relate to
               the credibility of this witness. It is not substantive proof that he
               committed the offense in this case, and it cannot be used by you for
               any purpose other than deciding the credibility of this individual
               witness.

       Defendant argues this evidence was improperly admitted under Tenn. R. Evid. 404(b).
However, defendant’s initial objection was based on “relevance.” Subsequently, he objected to
questions about drug usage on the Wednesday and Thursday preceding the homicide as being “too
remote.” It appears the evidence was not admitted for substantive purposes under Tenn. R. Evid.
404(b), particularly in light of the cautionary instruction given by the trial court.

        Regardless, we believe that evidence of defendant’s drug usage near the time of the
occurrence was admissible for impeachment purposes. “A party may offer evidence that a witness
suffered from impaired capacity at the time of the occurrence or testimony.” Tenn. R. Evid. 617.
Evidence of one’s impaired capacity to observe, record, recall or narrate relates to the witness’s
credibility. See generally, State v. Barnes, 703 S.W.2d 611, 617-18 (Tenn. 1985). Impaired capacity
is not considered collateral, and extrinsic evidence is generally admissible. Neil P. Cohen, et al,
Tennessee Law of Evidence § 6.17 [2][d] (4th ed. 2000). Thus, we conclude defendant was properly



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questioned as to his impaired capacity near the time of the homicide; it related to his credibility in
describing the events surrounding the homicide.

        However, we believe questioning the defendant about his “long history of chemical abuse”
was improper since it was too remote for impaired capacity evidence. Nevertheless, considering the
entire record, we conclude this did not affect the jury’s verdict to the prejudice of the defendant. See
Tenn. R. App. P. 36(b).


                                   III. CLOSING ARGUMENT

       The defendant contests two remarks made by the state in closing argument. The first
statement was as follows:

        The [j]udge will also instruct you what weight to give [the defendant’s] testimony.
        When the [d]efendant testifies, you’re to judge his testimony like that of any other
        witness, giving it whatever weight you feel it deserves. He lied. He lied about
        methamphetamine. General Strain asked him, did you take methamphetamine? No.
        Take it the day before? No.

At that point, the defendant noted his objection to the closing argument. On appeal, the defendant
contends the state’s use of the term “lied” was a personal opinion and a misstatement of the
evidence. We see no error.

       The defendant, on cross-examination, testified he had not used illegal drugs from
Wednesday, December 9th to Saturday, December 12th. The prosecutor then impeached the
defendant’s testimony with records indicating the defendant tested positive for methamphetamine.
Although the defendant explained that he used methamphetamine that week sometime prior to
Wednesday, the prosecutor’s statement that the defendant lied, especially coupled with testimony
from other eyewitnesses who opined the defendant was on drugs at the time of the crime, constituted
a reasonable inference from the evidence. We do not view the argument as a statement of personal
opinion.

        The second remark the defendant contends was improper was as follows:

        And they’ve put on a lot of proof today, ladies and gentlemen, about what a bad guy
        [the victim] was and they bring poor Miss Acquilla [Shrum] back up here, yeah, she
        took a warrant out on him and she had trouble with him and he was mean to her back
        then, and the only reason, the only reason they’re bringing that out, ladies and
        gentlemen, is because they want you all to go back in there and say [the victim] was
        an S.O.B., and it doesn’t matter that [the defendant] killed him.




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        The parties must be granted wide latitude in closing argument, provided the argument is
“temperate, predicated on the evidence introduced during the trial, relevant to the issues being tried,
and not otherwise improper under the facts or law.” State v. Thornton, 10 S.W.3d 229, 235 (Tenn.
Crim. App. 1999). To the extent that this argument crossed the line, we conclude it did not affect
the verdict to the prejudice of the defendant. Tenn. R. App. P. 36(b); see generally, State v. Bigbee,
885 S.W.2d 797, 809 (Tenn. 1994).


                                   IV. JURY INSTRUCTIONS

        The defendant contends the trial court improperly instructed the jury concerning the weight
it should give the defendant’s testimony. We respectfully disagree.

       An accused is entitled to a complete and correct charge of the law. State v. Teel, 793 S.W.2d
236, 249 (Tenn. 1990). We review a jury charge to determine if it fairly defined the legal issues
involved and did not mislead the jury. See State v. Hall, 958 S.W.2d 679, 696 (Tenn. 1997).

       On appeal, the defendant alleges the following instruction was erroneous:

       The defendant having testified in his own behalf, his credibility is determined by the
       same rules by which the credibility of other witnesses is determined and you will give
       his testimony such weight as you think it may be entitled.

(Emphasis added). Defendant argues the instruction effectively implied the defendant’s testimony
is suspect.

        The jury charge is verbatim from the pattern jury instructions. See T.P.I. - CRIM 42.04 (5th
ed. 2000). Nevertheless, reliance upon pattern instructions will not alleviate error if the instructions
are inaccurate. See State v. Hodges, 944 S.W.2d 346, 354 (Tenn. 1997).

        Defendant has been unable to cite us to any authority supporting his position, nor have we
found any such supporting authority. We see nothing misleading or inaccurate in the instruction.
This issue is without merit.


                                         V. SENTENCING

       The defendant contends the trial court improperly sentenced the defendant to the maximum
six-year term and improperly denied alternative sentencing. We respectfully disagree.




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A. Standard of Review

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

         If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence
within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should enhance the minimum sentence within the range for enhancement factors and then reduce the
sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e); State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial
court complies with the purposes and principles of the sentencing act and its findings are supported
by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d 471,
479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210 Sentencing Commission
Comments.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1).

B. Analysis

        Following the sentencing hearing, the trial court applied sentencing enhancement factors (1),
“a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range;” (8), “a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community;” and (9), possession or employment
of “a firearm, explosive device or other deadly weapon during the commission of the offense.”
Tenn. Code Ann. § 40-35-114(1), (8), (9). The trial court then applied mitigating factors (2), “[t]he
defendant acted under strong provocation;” and (13), “[a]ny other factor consistent with the purposes
of this chapter,” based on defendant’s remorse. Tenn. Code Ann. § 40-35-113(2), (13).


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Sentence Length

        Since the defendant was convicted of a Class C felony and was determined to be a Range I
standard offender, we must initially presume the three-year minimum sentence is appropriate. See
Tenn. Code Ann. § 40-35-210(c). The presentence report established that the defendant had at least
16 prior misdemeanor convictions, including six DUI’s, three public intoxication convictions, two
drug possession convictions and two theft convictions. Additionally, the defendant committed some
of these crimes while on probation. The present offense was committed with a firearm. The trial
court properly applied enhancement factors (1), (8) and (9). The trial court considered in mitigation
defendant’s genuine remorse and that defendant acted under “strong provocation,” giving
“considerably less weight” to provocation.

        The trial court properly applied the enhancement factors and weighed them against the
mitigating factors. Since the weight to be given enhancement and mitigating factors is left to the
discretion of the trial court, see Kelley, 34 S.W.3d at 479, we see no reason to disturb the length of
sentence set by the trial court.

Alternative Sentencing

       Under the law, the defendant is presumed to be a favorable candidate for alternative
sentencing. See Tenn. Code Ann. § 40-35-102(6). The trial court made no findings regarding
confinement/alternative sentencing under Tenn. Code Ann. § 40-35-103(1); therefore, we must
review this issue de novo without any presumption of correctness. See Poole, 945 S.W.2d at 96.

       The defendant indeed had a “long history of criminal conduct” consisting of at least 16 prior
misdemeanors from 1983 until the present offense. See Tenn. Code Ann. § 40-35-103(1)(A).
“Measures less restrictive than confinement” have been unsuccessful; defendant has in the past
received alternative sentencing, continued with criminal activity, and committed crimes while on
probation. See Tenn. Code Ann. § 40-35-103(1)(C). The defendant was untruthful in telling the
presentence report officer that he had no children, stating he “didn’t think it was any of his business.”
Untruthfulness is an indication of a defendant’s lack of potential for rehabilitation. See State v.
Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999).

        Although we recognize that defendant also exhibited some positive prospects for
rehabilitation, we conclude the above factors dictate against alternative sentencing. We decline to
disturb the sentence of confinement.


                                           CONCLUSION

        Accordingly, we affirm the judgment of the trial court.




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       ___________________________________
       JOE G. RILEY, JUDGE




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