                                   NO. 07-01-0403-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      APRIL 25, 2002

                             ______________________________


                       FRANK CHRIS MENDEZ, JR., APPELLANT

                                             V.

                             THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                NO. 2407; HONORABLE GORDON H. GREEN, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In this proceeding, appellant Frank Chris Mendez, Jr. appeals his conviction for the

offense of murder and the jury-assessed punishment, enhanced by two prior convictions,

of 40 years confinement in the Institutional Division of the Department of Criminal Justice

and a fine of $10,000. Finding no reversible error, we affirm the judgment of the trial court

for the reasons set forth.
       In five issues, appellant complains (1) the trial court erred in admitting into evidence

the telephone conversations between witness Johnny Sanchez and the deceased, Sandra

Jenkins, in the hours preceding her death, (2) the trial court erred in admitting into

evidence testimony concerning electronic monitoring of appellant at the time of the

offense, (3) the trial court erred in overruling his motion for a mistrial when testimony was

presented to the jury as to an extraneous offense, (4) the evidence is legally insufficient

to support the verdict, and (5) the evidence is factually insufficient to support the verdict.




       On December 31, 2000, appellant and his live-in girlfriend, Sandra Jenkins

(Sandra), who was also the mother of his infant daughter, held a New Year’s Eve party at

their apartment. Most of the guests left around 12:30 p.m. There was testimony that at

the party, Sandra was drinking beer and also smoked marijuana with several of the guests.

However, there were no signs of an argument between Sandra and appellant. Sometime

later, a neighbor observed appellant and Sandra standing outside the apartment and soon

after that, he could hear both Sandra and the baby crying inside the apartment. Shortly

thereafter, appellant appeared at the neighbor’s door and handed them his infant

daughter, who was covered in blood but was apparently unhurt. Appellant told them to

take care of the child. One of the occupants then called 911.


       A guest at the party, Johnny Sanchez, received several phone calls from Sandra

beginning at 1:20 a.m., in which she asked him to either come get appellant or her and the



                                              2
baby because appellant was going to kill her. In the second call, she stated that appellant

had pulled a knife on her. Sanchez also talked to appellant during the second call, and

appellant said Sandra was upset because of a phone call he made to his mother, but that

they were all right. Sanchez received at least one other call from Sandra after that

conversation as shown by Caller ID, but he did not answer it.


       Officer Brandon Neal of the Friona Police Department was dispatched to the scene

at 2:11 a.m. Upon his arrival, he observed appellant outside the apartment. Appellant told

him that Sandra needed help. When Neal entered the apartment, he saw Sandra slumped

on the sofa with blood stains on her face. He also observed a puncture wound on the right

side of her abdomen. Sandra was unresponsive. Appellant told him they had an argument

and that Sandra had thrown the phone. There were also several overturned chairs and

broken plates. Appellant admitted he had hit Sandra. EMS personnel arrived and

transported Sandra for treatment. She later died from massive internal bleeding and shock

due to arterial and venous injury from an abdominal stab wound.


       In his first issue, appellant complains of the admission of the content of the

telephone calls Sandra made to Sanchez as being hearsay. The court initially sustained

the objection, but the State argued in a hearing outside the presence of the jury that the

testimony was not offered to prove the truth of the matter asserted but as a res gestae

statement and to show the victim’s state of mind because the defense was raising suicide




                                            3
as an explanation of Sandra’s abdominal injury. The court found that the statements fit

within an exception to the hearsay rule.


       Hearsay is a statement other than one made by the declarant while testifying at trial

offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not

admissible except as prescribed by the rules. Id. 802. An exception to the hearsay rule

is a statement of the declarant’s then existing state of mind, emotion, sensation or physical

condition, but does not include a statement of memory or belief to prove the fact

remembered or believed unless it relates to the execution, revocation, identification or

terms of declarant’s will. Id. 803(3). Other exceptions are statements describing or

explaining an event or condition made while the declarant is perceiving the event or

condition or immediately thereafter and statements relating to a startling event or condition

made while the declarant is under the stress of excitement caused by the event or

condition. Id. 803(1) and (2).


       The testimony elicited at the hearing on appellant’s objection was as follows:


       Q. (BY MR. ACTKINSON) You received a phone call from Sandra?

       A. Yes.

       Q. And you recognized her voice?

       A. Yes.

       Q. And you think this phone call you got about 1:20?

       A. Somewhere around there, yes.


                                             4
Q. And what did she say to you?

A. She was - - she told me to come get Franky out of there, said he’s going
to kill me, come get Franky or come get me and my daughter out of here.

Q. And what did you do based upon what she told you?

A. I just told her, you know - - what did I do?

Q. Yes.

A. I just talked to her, I told her that he wasn’t going to kill her, you know.
I said, what’s going on. And she was just hysterical.

Q. She was in fact hysterical?

A. Yes.

Q. And she asked you to come take her out of the house or take Franky out
of the house?

A. Yes.

Q. Or come take her and the baby out of the house because she thought
Franky was going to kill her?

A. Yes.

Q. Did you in fact talk to Franky?

A. On the second phone call I did.

Q. So on the first phone call you did not?

A. No.

Q. Was there a second phone call?

A. Yes.

Q. And who was that?



                                      5
A. It was Sandra.

Q. And how much later did you receive the second phone call?

A. Not much later, I’m going to say at least ten minutes.

Q. So about 1:30 she’s calling back to your house again?

A. Yes.

Q. And what did she say the second time?
A. She was yelling more, she says - - she wanted me to get Franky out of
there. She said, I know he’s going to kill me, he’s got a knife. And I asked
her, where’s Franky at. She said, he’s right here. Let me talk to Franky, so
I talked to him and asked him what was going on, and he just told me that
she was mad because she was talking - - he was talking to his mom in
Spanish over the phone.

Q. And this is the conversation that you had with Franky?

A. Yes.

Q. He was explaining to you why Sandra was mad?

A. Yes.

Q. And did you ask him about having the knife?

A. No, I didn’t, I didn’t ask him. All I asked him, are you guys okay. He
says, we’re all right. I said, are you sure. And he said, yeah.

Q. Did you talk to Sandra again on that phone conversation.

A. I talked to Sandra again.

Q. And what did you tell her?

A. I told her everything is going to be all right. He’s not going to kill you.
She kept saying, he’s going to kill me tonight, Johnny, come and get me.

Q. And then that phone conversation ended?



                                      6
A. Yes.

Q. And then did she call you a third time?

A. The phone was ringing and I saw - - I looked at the Caller ID and it was
his phone number, and I didn’t answer it.

Q. And where was that phone call, how much later after the second phone
call?

A. Not too late after the second one.

Q. Five or ten minutes?

A. Something like that.

Q. But you didn’t answer that phone?

A. No, I didn’t.

Q. Had you done this before, had you acted as a mediator between them
before?

A. No, not between them.

Q. Had Sandra ever called you before because Frank had hit her or asked
you to come help her?

A. No.

Q. Why did you not go over there?

A. I thought they were just having a family argument, you know.

Q. You had seen them less than an hour earlier and they were not having
any disagreement?

A. They weren’t arguing, they were happy, so that’s why I thought maybe
something happened that they were just having a little argument.

Q. And without question, you recognized the voice of Sandra and you
recognized the voice of Frank and you knew who you were talking to?


                                    7
       A. Yes.


Appellant argues that the statements by Sandra that he was going to kill her and he had

pulled a knife on her did not describe her state of mind, but represented only a belief held

by Sandra and were offered to prove the truth of the matter asserted.


       We review the trial court’s ruling on the admissibility of hearsay under an abuse of

discretion standard. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995), cert.

denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). Appellant relies on Anderson

v. State, 15 S.W.3d 177 (Tex.App.--Texarkana 2000, no pet.), for the proposition that a

victim’s state of mind prior to any fatal incident is generally neither at issue nor probative

of any material issue in a murder prosecution. Id. at 184. However, that court noted there

was an exception for defense claims of accident, self-defense, or suicide. Id. In the case

at bar, appellant presented evidence that Sandra had been depressed and wanted to join

a cousin who had been killed in a car accident in an attempt to demonstrate that her death

was a suicide. Therefore, evidence showing that she was afraid of appellant in the hour

preceding her death would have relevance as to whether her death was the result of a

suicide or other external means.


       Even if the evidence is relevant, appellant relies on Dorsey v. State, 24 S.W.3d 921

(Tex.App.--Beaumont 2000, no pet.) and the previous ruling of this court in Barnum v.

State, 7 S.W.3d 782 (Tex.App.--Amarillo 1999, pet. ref’d), for the proposition that

statements from the victim that the defendant might kill her reflect a belief which would not


                                              8
be admissible under the state of mind exception to the hearsay rule. In Dorsey, the victim

made several statements to co-workers and friends prior to the incident that she was afraid

to divorce the defendant, the defendant held her down on the bed with a knife to her throat,

he held a gun to her head up under her throat and in her mouth, that if anything ever

happened to her it meant that the defendant had killed her, and that the defendant followed

her to work every day to make certain she was there. The court found that her statement

describing her fear of the defendant was admissible to show her emotional state at the

time she made the statement, but the statement to the effect that if anything happened to

her appellant had killed her was only a belief. Dorsey, 24 S.W.3d at 928. The other

statements that the defendant held a knife to her throat, a gun to her head and throat and

followed her to work everyday were simply a recounting of her memory of events. Id. at

928-29.


       In Barnum, the victim had written a statement which read: “[t]oday I found the

attached paper. The paper with figures was written by my husband Barak Lee Barnum.

I believe he may be contemplating murdering me for my $100,000.00 life insurance policy.”

We found the first two statements to be simply statements of events which have occurred.

Barnum, 7 S.W.3d at 791. The last sentence was a statement of the victim’s belief and

demonstrated her fear only by inference from that belief. Id.


       In contrast, in this instance, Sandra was not describing a past incidence from

memory or her opinion as to what might happen at some unspecified time in the future.



                                             9
She was describing an ongoing occurrence that was happening at that moment. Her

statements that she either wanted Sanchez to come get appellant or her and the baby

because he was going to kill her did not just reflect her belief that appellant might kill her

someday in the future, but a present fear that he might do so imminently, thus

demonstrating her fear at that moment caused by events that were occurring at the time

of the statement.


       Similarly, in Williams v. State, 798 S.W.2d 368 (Tex.App.--Beaumont 1990, no pet.),

the victim, who had just been sexually assaulted and was crying, spoke to a deputy and

told him that her assailant was going to come back and kill her and her children. The

testimony was held admissible to prove her then existing state of mind. Id. at 371.


       Even if the testimony was not admissible as evidence of her state of mind, we

believe it would have been admissible under the excited utterance exception to the

hearsay rule. In order for the excited utterance exception to apply, the statement must be

the product of a startling event, the declarant must be dominated by the emotion,

excitement, fear, or pain of the event, and the statement related to the circumstance of the

startling event.    The pertinent inquiry is whether the cumulative effect of the three

requisites combined is sufficient to show the reliability of the statement. Sellers v. State,

588 S.W.2d 915, 918 (Tex.Crim.App. 1979).


       In this situation, appellant and Sandra had been observed by others during the

evening preceding the incident and seemed happy. However, at some point after the


                                             10
guests left the party, that situation changed and appellant picked up a knife which caused

fear in Sandra. As a result, Sanchez described Sandra as hysterical. She pleaded with

Sanchez to either come and get appellant or take her and the baby away from the

apartment because she believed appellant would kill her. It is clear that Sandra was

dominated by the emotion arising from their argument and from appellant having a knife.




       Appellant further argues that the probative value of Sandra’s statements is

outweighed by the danger of unfair prejudice under Rule of Evidence 403. Appellant’s

objection at trial was that the testimony was hearsay, not that the prejudicial effect

outweighed the probative value. Therefore, the issue has not been preserved. Williams

v. State, 995 S.W.2d 754, 760 (Tex.App.--San Antonio 1999, no pet.). The trial court did

not abuse its discretion in allowing the admission of the testimony. Appellant’s first issue

is overruled.


       In his second issue, appellant complains of the court’s admission into evidence of

the testimony of Chris Salinas, appellant’s parole officer, that appellant wore an electronic

monitor at the time of the alleged offense. Appellant objected to the testimony at trial on

the basis that the probative value was limited because no doubt had been cast on the fact

he was present at the crime scene, and the prejudicial value was high because it indicated

to the jury that appellant was on parole for another crime. The specific authority appellant

cited at a hearing outside the presence of the jury was Rules 404B, 403, 608, and 609F



                                             11
of the Rules of Evidence.1 The State noted that appellant was on parole for burglary,

which was charged in the enhancement paragraph of the indictment and, because the

case was based on circumstantial evidence, the State should be permitted to prove that

appellant was present at the time of Sandra’s injury.


       The court ruled that the evidence was probative under Rule 404B. The State further

agreed to limit any testimony as to the witness’s employment as a parole officer and to

show that he was merely the custodian of the records. In Salinas’s testimony at trial, there

was no mention of what job Salinas held or that appellant was on parole for another crime.

The witness simply stated he brought some electronic monitoring records pertaining to

appellant, he had reviewed the records, and that according to the records, appellant had

been within 150 feet of his apartment between 10:10 a.m. on December 31, 2000, and 2:58

a.m. on January 1, 2001.


       On appeal, appellant argues the evidence is cumulative because a neighbor,

Lorenzo Sierra, Jr., testified that he observed appellant standing in the doorway of the

apartment within minutes of when Sandra was stabbed. Further, he argues, evidence of

other crimes is not admissible to prove the character of a person. Finally, he cites Cooper

v. State, 901 S.W.2d 757 (Tex.App.--Beaumont 1995, pet. dism’d), for the proposition that

the State is not entitled to “set the stage” for a witness to testify to facts not otherwise at

issue, because the State asserts the witness will rebut a defensive theory.


       1
       Appellant also challenged the authentication of the records, but has not raised that
issue on appeal.

                                              12
       Rule 404(b) of the Rules of Evidence provides that evidence of other crimes,

wrongs or acts is not admissible to prove the character of a person in order to show he

acted in conformity with that character. Tex. R. Evid. 404(b). However, in this instance,

there was neither direct mention of any crime nor of the fact appellant was on parole.

Thus, although the jury may have wondered about the use of electronic monitoring, there

was no direct evidence that appellant had been convicted of a crime or what that crime

may have been. The only evidence before the jury was of electronic monitoring to prove

appellant’s presence at the scene during the period of time when the crime took place.


       Although appellant argues that the State may not “set the stage” with evidence of

appellant’s presence until he has testified he was not present at the time of the incident,

the State has the burden of proving beyond a reasonable doubt that appellant intentionally

and knowingly caused Sandra’s death by stabbing her with a knife, which necessarily

requires the State to prove his presence at the crime scene. In contrast, the Cooper case

on which appellant relies involved evidence of anal intercourse with the defendant’s

girlfriend to show a pattern of behavior that he also allegedly had anal intercourse with her

two children. The court found that, in addition to the fact the evidence was not relevant

as to identity or intent, the children had not yet been questioned at that point in time and

therefore, any impeachment of their testimony was not yet a problem for the State to

address with the mother’s testimony. Cooper, 901 S.W.2d at 762.




                                             13
       In this case, there was testimony from a neighbor that he had seen appellant

outside the apartment immediately preceding the stabbing. Indeed, he testified it was

about 20 minutes prior to the time appellant brought the baby to his apartment. It would

have been possible for appellant to leave the apartment in that 20 minutes, and therefore

the evidence is not necessarily cumulative.


       Rule 403 provides that evidence, although relevant, may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, misleading the jury, by considerations of undue delay, or needless presentation

of cumulative evidence. Id. 403. We have already determined that the evidence had

probative value. Further, precautions were taken so that any prejudicial effect of the

testimony was minimal. Thus, it cannot be said that the prejudicial value substantially

outweighed the probative value or that the trial court abused its discretion in permitting the

admission of the evidence. Appellant’s second issue is overruled.


       Appellant complains in his third issue that the trial court should have granted a

mistrial when testimony was presented by Sandra’s mother concerning an extraneous

offense he committed. The objectionable testimony is as follows:


       Q. Now, prior to her death, where did your daughter live, where was her
       residence?

       A. When she died?

       Q. Yes, ma’am.



                                             14
        A. In Friona.

        Q. And did she live at those apartments?

        A. Yes, sir.

        Q. And who was she living with?

        A. With Franky, he had just moved back in after he got out of the pen.


At that point, appellant moved for a mistrial because the jury had been informed that he

had been in prison. The court denied the motion for mistrial, but offered to give an

instruction to disregard. Before the instruction was given, appellant also objected on the

basis of Rules 403 and 404 of the Rules of Evidence. The court sustained the objection

as to relevancy and instructed the jury not to consider the witness’s last answer as

evidence for any purpose.


        Appellant concedes that error in the admission of improper testimony will usually

be cured by an instruction to disregard; however, he argues that, in this instance, the

instruction was insufficient to cure the harm created by the testimony. This is so, he

posits, because the witness had been warned not to make any such remark and it was

therefore calculated to inflame the minds of the jury. He also notes the weak factual basis

of the case in asserting that no limiting instruction could cure the impression left on the

jury.


        Appellant cites Tate v. State, 762 S.W.2d 678 (Tex.App.--Houston [1st Dist.] 1988,

pet. ref’d) and Govan v. State, 671 S.W.2d 660 (Tex.App.--Houston [1st Dist.] 1984, pet.


                                            15
ref’d), as authority for his argument that these cases involved instances in which the

prosecutor violated a court order in making reference to an extraneous offense or brought

a witness to the stand for the sole purpose of extracting testimony of an extraneous

offense after he had assured the court he would not do so. Tate, 762 S.W.2d at 681;

Govan, 671 S.W.2d at 663. In the case at bar, the State did not ask a question that would

ordinarily extract information as to an extraneous offense, it merely asked the witness who

Sandra lived with. Appellant notes that the remark followed the testimony about electronic

monitoring, but that neither that evidence nor the remark by Sandra’s mother was

calculated by the State to inflame the jury. We believe the instruction to disregard would

have cured the error in the admission of the testimony. The third issue presented by

appellant is overruled.


       Appellant’s fourth and fifth issues challenge the legal and factual sufficiency of the

evidence to support the conviction. Because appellant has briefed the issues together,

we will likewise discuss them together. The standards by which we review legal and

factual sufficiency challenges are now so well known that it is unnecessary for us to restate

them. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);

Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We also must remember that

the jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and it may accept or reject any part of that testimony. Cain v. State, 958

S.W.2d 404, 407 n.4 (Tex.Crim.App. 1997).




                                              16
       Appellant was charged in the indictment with intentionally and knowingly causing

Sandra’s death by stabbing her with a knife. He alleges that there is a material variance

between the indictment and the proof at trial because the police could not identify any

specific knife as the murder weapon, one of the doctors testified he could not tell the

difference between a knife wound and a wound caused by another object, no knife was

entered into evidence at trial, and there was no fingerprint evidence to show that he

possessed any instrument which caused Sandra’s injury.


       In a prosecution based on circumstantial evidence, it is not required that every fact

point directly and independently to the guilt of the accused but the cumulative force of all

the incriminating circumstances may be sufficient. Barnes v. State, 876 S.W.2d 316, 321

(Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994);

Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App. 1980). In this instance, Sandra and

appellant both resided in the apartment where she was found by a police officer with a

puncture wound in her abdomen. Sandra was not breathing when emergency medical

personnel arrived and they worked on her for 26 minutes in an attempt to get her to begin

breathing before transporting her. She was transferred to the Parmer County Community

Hospital and later to Hereford where emergency surgery was performed.


       Guests at the party that evening thought both Sandra and appellant seemed happy.

However, within an hour prior to the 911 call, Sandra had made several phone calls to

Sanchez, expressing her imminent fear of appellant and saying he had a knife. Appellant



                                            17
himself acknowledged to that same friend that he and Sandra were arguing. Electronic

monitoring showed that appellant had not been more than 150 feet away from the

apartment for a number of hours prior to the arrival of the police officer. That officer was

dispatched to the apartment after a neighbor called 911 after appellant left his daughter,

in blood-stained clothes, with the neighbor. Appellant admitted to the officer that he had

struck Sandra in the face. The apartment was also in disarray as though there had been

a scuffle. Several knives were found in the apartment in various locations, and later

Roberto Dominguez, a maintenance man at the apartment complex found a knife about 20

feet from the back door of appellant’s apartment after seeing a trail of blood drops in the

snow. Law enforcement personnel observed blood stains on the back door, stair walls and

bannister, in a sink, and leading to a beer can outside the back door. Photographs taken

of appellant’s hand showed cut marks on them.


        Dr. Nadir Khuri performed surgery on Sandra in an attempt to save her life. He

testified that she had a stab wound in her belly that protruded into the iliac artery and vein.

The wound was about six inches deep and slightly less than an inch wide. He testified that

she hemorrhaged to death internally as a result of that wound. According to Dr. Khuri, the

object used to make the wound was a flat, sharp object, although he agreed it could have

been a flat, sharp piece of glass if it was long and sturdy enough.


       One of Sandra’s friends, Sara Street, provided evidence that Sandra had mood

swings and had been depressed. Sara also testified that Sandra drank alcohol, used



                                              18
marijuana, cocaine, and Prozac. Sandra had recently been arrested for driving while

intoxicated, and there was testimony of conflict between Sandra and her mother, who had

allegedly threatened to take Sandra’s child from her. Sara stated she was concerned that

Sandra might hurt herself.


      In Reeves v. State, 969 S.W.2d 471 (Tex.App.--Waco 1998, pet. ref’d), cert. denied,

526 U.S. 1068, 119 S.Ct. 1462, 143 L.Ed.2d 547 (1999), the cause, time, and location of

death were not known. There was also no physical evidence of foul play to connect the

defendant to the murder. However, the defendant was the last one to see the victim alive,

he had previously abused her, he had the best opportunity and a motive to kill her, he told

conflicting stories about her whereabouts, he went camping the day after she disappeared

in the area where her body was found, and his actions immediately after her death, such

as washing his truck, disposing of his sleeper sofa, and replacing carpet indicated he was

hiding something. The evidence was held to be both legally and factually sufficient to

support the verdict. Id. at 479-80.


       In this instance, the location, approximate time, and the injury leading to Sandra’s

death are known. Although there is no fingerprint or DNA evidence connecting appellant

to the crime, there is evidence that appellant was threatening Sandra with a knife shortly

before her injury and she believed he was going to kill her. There is also evidence that

appellant was present in the apartment at the time of Sandra’s injury, and he admitted he

struck her in the face. A number of knives were found inside the apartment and one was



                                            19
found outside the back door. The jury was free to resolve any inconsistencies in the

evidence and conclude that appellant inflicted the lethal injury on Sandra with a knife as

opposed to it being a self-inflicted injury or an injury by some other object. We believe a

rational jury could have found the essential elements beyond a reasonable doubt, and that

such a finding is not clearly wrong or unjust. Appellant’s fourth and fifth issues are

overruled.


       Finding no reversible error, we affirm the judgment of the trial court.



                                                 John T. Boyd
                                                  Chief Justice

Do not publish.




                                            20
                                   NO. 07-01-0403-CR

                                IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                     APRIL 25, 2002

                         ______________________________


                      FRANK CHRIS MENDEZ, JR., APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                  NO. 2407; HONORABLE GORDON H. GREEN, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


                                 CONCURRING OPINION


      I concur in the result.


                                                Phil Johnson
                                                  Justice


Do not publish.
22
