                                        NO. 12-16-00003-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

RICKEY SHAYNE BOYKIN,                                     §        APPEAL FROM THE 159TH
APPELLANT

V.                                                        §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §        ANGELINA COUNTY, TEXAS

                                        MEMORANDUM OPINION
         Rickey Shayne Boykin appeals his conviction for two counts of arson. Appellant raises
six issues on appeal. We affirm.


                                                 BACKGROUND
         Appellant was charged by indictment with two counts of arson, a second degree felony.
The indictment also included two felony enhancement paragraphs.1 Appellant pleaded “not
guilty” to both counts, and the case proceeded to a jury trial. The jury found Appellant guilty of
both counts of arson.
         At Appellant’s election, the trial court assessed his punishment. At the punishment
hearing, the trial court allowed the State to amend both allegations contained in the enhancement
paragraphs of the indictment. Appellant pleaded “not true” to the enhancement allegations. The
trial court found both allegations “true” and assessed Appellant’s punishment at imprisonment
for twenty-five years. This appeal followed.


         1
           If it is shown on the trial of a felony offense that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first
previous conviction having become final, on conviction the defendant shall be punished by imprisonment for life, or
for any term of not more than ninety-nine years or less than twenty-five years. See TEX. PENAL CODE ANN.
§ 12.42(d) (West Supp. 2016).
                          AMENDMENTS TO ENHANCEMENT PARAGRAPHS
       In his sixth issue, Appellant contends that the trial court erred in allowing the State to
make two amendments to the enhancement paragraphs of the indictment after the trial had begun
and over his objection.
Applicable Law
       The State may amend an indictment after the trial on the merits commences if the
defendant does not object. TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006). Conversely, if
the defendant objects, the State may not amend the indictment after trial has commenced. Hillin
v. State, 808 S.W.2d 486, 489 (Tex. Crim. App. 1991).
       The indictment is not amended when the trial court grants an oral motion to amend.
Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Johnson v. State, 214 S.W.3d 157,
158 (Tex. App.—Amarillo 2007, no pet.). Instead, the State amends an indictment by physically
altering the indictment, or a copy thereof, with the desired changes. Johnson, 214 S.W.3d at
158.
       Because a violation of article 28.10 is not a constitutional error, a reviewing court
evaluates harm on the basis of whether the error affected the defendant’s substantial rights. See
TEX. R. APP. P. 44.2(b); James v. State, 425 S.W.3d 492, 500 (Tex. App.—Houston [1st Dist.]
2012, pet. ref'd). A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict or the fact finder’s decision. See King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In the context of an amendment to an
indictment, an appellant shows harm when his defense was impaired by the timing of the State’s
notice. See James, 425 S.W.3d at 501.
       In addition to the statutory restrictions on an amendment to an indictment, a defendant
has due process and due course of law rights under the United States and Texas Constitutions to
notice of any prior convictions to be used to enhance the punishment range of the defendant.
Villescas v. State, 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006). The State must plead the
enhancements in some form, but not necessarily in the indictment. Id. at 292. When a defendant
has no defense to an enhancement allegation and has not suggested the need for a continuance in
order to prepare one, notice given at the beginning of the punishment phase satisfies
constitutional notice requirements. Id. at 294.




                                                  2
Application
        In the indictment’s first enhancement paragraph, the State alleged that Appellant was
finally convicted of the felony offense of unlawful possession of a firearm by a felon on March
20, 1996. In the second paragraph, it alleged that he was finally convicted of the felony offense
of obstruction or retaliation in Jefferson County. At the beginning of the punishment hearing,
the State orally moved to amend the first enhancement paragraph to read that Appellant was
convicted on March 13, 1996. The State further moved to amend the second paragraph to read
that Appellant was convicted in Orange County.
        Appellant objected to both proposed amendments on the ground that it was “too late” to
amend the enhancement paragraphs. The trial court granted the State leave to make both
amendments. However, from our review of the record, it does not appear as though the State
ever made actual changes to the indictment or a copy thereof. See Johnson, 214 S.W.3d at 158.
Thus, the indictment was not amended.2
        On appeal, Appellant first argues that the trial court violated article 28.10 by allowing the
amendments after the trial had begun and over his objection. Even assuming the indictment was
erroneously amended, Appellant has failed to demonstrate that he was harmed by the
amendments. See James, 425 S.W.3d at 501. Appellant urges this Court to adhere to our
precedent in Dixon v. State and reverse the trial court’s judgment without conducting a harm
analysis. 932 S.W.2d 567 (Tex. App.—Tyler 1995, no pet.). In Dixon, we examined similar
amendments to an enhancement paragraph. Id. at 568. We held that the trial court erred when it
allowed amendments to the indictment on the day the jury was impaneled and sworn. Id. at 570.
Under binding precedent at that time, we did not conduct a harm analysis of the error. See
Sodipo v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990). Accordingly, we reversed and
remanded for a new trial. Dixon, 932 S.W.2d at 570. We noted, however, that the late
amendments consisted of only minor changes and very likely had no effect on the defendant’s
ability to prepare for trial. Id. We further noted that if the error was subjected to harm analysis,
we would likely have found no harm. Id.



        2
           We recognize there is authority that enhancements are not subject to the amendment restrictions of article
28.10. See, e.g., Johnson, 214 S.W.3d at 158. However, because no amendment was made in this case, we need not
reach that issue. See TEX. R. APP. P. 47.1.




                                                         3
       The appellate rule regarding reversible error in criminal cases has changed since our
decision in Dixon. Prior to September 1, 1997, the rule stated that “[i]f the appellate record in a
criminal case reveals error in the proceedings below, the appellate court shall reverse the
judgment under review, unless the appellate court determines beyond a reasonable doubt that the
error made no contribution to the conviction or to the punishment.” TEX. R. APP. P. 81(b)(2)
(amended 1997). Effective September 1, 1997, amended Texas Rules of Appellate Procedure
were adopted. Under the 1997 amendments, reversible error in criminal cases was divided into
two categories: “constitutional errors” and “other errors.” TEX. R. APP. P. 44.2(a), (b). Since
the 1997 amendments, the court of criminal appeals has conducted harm analyses on complaints
of erroneous amendments to indictments. See Wright v. State, 28 S.W.3d 526, 531 (Tex. Crim.
App. 2000).
       Unlike when Dixon was decided, now we must review an alleged error of a late
amendment to an indictment for harm, and only reverse if the error affected the defendant’s
substantial rights. See TEX. R. APP. P. 44.2. Here, Appellant has not alleged any confusion
regarding the late changes or any potential defense to the enhancements. We further note that
Appellant admitted to previous felony convictions for possession of a firearm, retaliation, and
burglary of a building during his testimony at the guilt/innocence portion of the trial.
Accordingly, we conclude that Appellant’s substantial rights were not affected by the
amendments to the enhancement allegations. See James, 425 S.W.3d at 501.
       Appellant further argues that his rights to due process and due course of law were
violated by the amendments. We disagree. The State notified Appellant that it intended to
introduce evidence of his prior convictions listed in the indictment. In addition, the State also
filed the “State’s Notice of Extraneous Evidence, Brady Material and Impeachment Evidence,”
which lists five of Appellant’s previous convictions, including the two listed in the indictment
(albeit with the same errors contained in the indictment). Finally, the State provided oral notice
of the corrections to Appellant at the beginning of the punishment phase. Appellant made no
suggestion that he had a defense to the enhancement allegations or that he needed a continuance
in order to prepare a defense. Under these circumstances, we conclude that the State provided
sufficient notice to satisfy any constitutional concerns. See Villescas, 189 S.W.3d at 294.
       We overrule Appellant’s sixth issue.




                                                4
                                  EVIDENTIARY SUFFICIENCY
       In his first, second, and fifth issues, Appellant challenges the legal sufficiency of the
evidence to support his convictions for arson and the trial court’s finding that he is a habitual
offender.
Standard of Review
       In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This standard gives full play to
the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Padilla v. State,
326 S.W.3d 195, 200 (Tex. Crim. App. 2010).
       The jury is the sole judge of the witnesses’ credibility and the weight to be given their
testimony. Brooks, 323 S.W.3d at 899. We give deference to the jury’s responsibility to fairly
resolve evidentiary conflicts, weigh the evidence, and draw reasonable inferences from basic
facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,
and circumstantial evidence alone can be sufficient to establish guilt. Id. A conclusion of guilt
can rest on the combined and cumulative force of all the incriminating circumstances.
Hernandez v. State, 190 S.W.3d 856, 864 (Tex. App.—Corpus Christi 2006, no pet.).
       A plea of “true” will satisfy the state’s burden of proving an enhancement allegation, but
there must be affirmative evidence in the record showing that the defendant entered a plea of
“true.” Wood v. State, 486 S.W.3d 583, 587-88 (Tex. Crim. App. 2016). If there is no affirmative
evidence showing a plea of “true,” the state must prove the allegation beyond a reasonable doubt.
Id. at 588. To show that a defendant has been convicted of a prior offense, the state must prove
beyond a reasonable doubt that the prior conviction exists and that the defendant is linked to the
conviction. Id. There is no specific manner of proof required to establish these two elements. Id.




                                                5
Applicable Law
       As applicable here, a person commits arson by starting a fire, regardless of whether the
fire continues after ignition, or causing an explosion with intent to destroy or damage (1) any
vegetation, fence, or structure on open-space land or (2) any building, habitation, or vehicle that
is located on property belonging to another. See TEX. PENAL CODE ANN. § 28.02 (West 2011).
       For the state to prove a person is subject to the enhanced punishment range of a habitual
felony offender, it must establish the following chronological sequence of events: (1) the first
felony conviction becomes final, (2) the person commits an offense leading to another later
felony conviction, (3) the second felony conviction becomes final, and (4) the felony offense for
which the person presently stands accused is committed. See id. § 12.42(d); Ex Parte Miller,
330 S.W.3d 610, 624 (Tex. Crim. App. 2009).
Count One – House at 111 Van Street
       In Count One, Appellant was charged with starting a fire with the intent to damage or
destroy a building located at 111 Van Street. In Appellant’s first issue, he contends that the
evidence to convict him of this count of arson is legally insufficient in two respects. First,
Appellant argues that the evidence failed to establish that he was the person who started the fire.
Second, Appellant argues that the evidence failed to establish that he knew the house was owned
by another. We disagree.
       The evidence shows that Appellant gave a recorded statement to City of Lufkin Fire
Marshal Steve McCool. Appellant initially denied being around the house or near the fire at any
time. However, he later changed his story, admitting that he went by the house and saw people
next door. Appellant further admitted that an acquaintance of his, Paul Mizler, was staying in the
house. Appellant said that he was angry with Mizler for taking his bicycle. He claimed that he
went behind the house to see if Mizler was there and then left. Appellant denied starting the fire
or even knowing about it until a few days later. Toward the end of Appellant’s statement,
McCool asked, “Would you have caught the house on fire if [Mizler] was in it?” Appellant
responded, “Well, of course not. I’d have got my bike and left.”
       Joe Burton, a lieutenant paramedic and fire investigator with the Lufkin Fire Department,
investigated the fire. Based on his investigation, he opined that someone entered the back door
and started the fire on the back wall. Burton concluded that the fire was started intentionally and
spread quickly.



                                                6
        Burton spoke with Clarence Hightower and Latonya Siggers, who had been on the porch
next door. Siggers and Hightower saw a man walk from the front of the house to the back, and
then reappear a short time later. Almost immediately thereafter, the house was on fire. Siggers
identified the man as Appellant. Hightower believed that the man was Appellant, but he said he
could not be absolutely positive. Siggers and Hightower had seen Appellant at the house several
times previously. They also knew that Mizler had been living in the shed behind the house.
        Mizler testified that he and Appellant were drinking buddies. Mizler knew that Appellant
had several bicycles. He admitted borrowing Appellant’s bicycles in the past and probably had
kept the bicycles longer than Appellant intended. Mizler stated that he had stayed at the house at
111 Van Street and that the house caught on fire. He did not directly implicate Appellant in
setting the fire.
        Appellant testified at trial and denied starting the fire. He speculated that a cat knocked
over a lit candle and started the fire. Appellant admitted that he was at the house looking for
Mizler because Mizler had borrowed his bicycle. He further admitted that Mizler had taken
Appellant’s bicycle several times and that he was “always mad at [Mizler].”
        The State also produced evidence that the house was owned by someone other than
Appellant, and that Appellant knew this. Burton stated that McCool determined who owned the
house. Burton said that although Mizler had been living there, he was a squatter and had no
ownership of the house. Other witnesses, including Appellant, testified that Mizler had been
living at the house, but that someone else owned the house. Appellant claimed that a friend of
Mizler threatened to file a report so that Mizler could no longer live at the house. Hightower
testified that the house was not owned by Appellant, but by a man who lived in Houston.
        As sole judge of the weight and credibility of the evidence, the jury was free to reject
Appellant’s testimony that he did not start the fire. See Brooks, 323 S.W.3d at 899. Viewing the
evidence in the light most favorable to the prosecution, we conclude that a rational factfinder
could have found, beyond a reasonable doubt, that Appellant started a fire with the intent to
damage a building that was located on property belonging to another, and is therefore guilty of
the first count of arson. See TEX. PENAL CODE ANN. § 28.02(a)(2)(D); Jackson, 443 U.S. at 319,
99 S. Ct. at 2789, 61 L. Ed. 2d 560. Accordingly, we overrule Appellant’s first issue.




                                                 7
Count Two – Open Space Land at 307 North Timberland Drive
        In Count Two, Appellant was charged with starting a fire with the intent to damage or
destroy vegetation on open space land located at 307 North Timberland Drive. This fire occurred
behind an HEB supermarket and damaged a make-shift dwelling that Mizler was using. In
Appellant’s second issue, he contends that the evidence to convict him of this count of arson is
legally insufficient.
        In Appellant’s statement to McCool, he admitted starting the fire on open space land
behind HEB. Appellant denied being angry with Mizler regarding the use of his bicycle at the
time of this fire, but admitted that he was angry because he expected Mizler to be at his make-
shift dwelling and Mizler was not present.
        At trial, Appellant admitted being present at Mizler’s dwelling behind HEB before the
fire started. He claimed that his feet were wet and he started the fire to dry his shoes. Appellant
contended that he accidentally lost control of the fire and that he had no intent to burn Mizler’s
property.
        McCool also spoke to Mizler about several fires, including the one behind HEB. Mizler
told McCool that Appellant admitted starting the fire behind HEB. At trial, Mizler recounted that
he had built the make-shift shelter on open land behind HEB, and that the property and his
belongings had caught on fire. Mizler said Appellant admitted to possibly starting the fire.
        Viewing the evidence in the light most favorable to the prosecution, we conclude that a
rational factfinder could have found, beyond a reasonable doubt, that Appellant started a fire
with the intent to destroy or damage vegetation, fence, or a structure on open-space land, and is
therefore guilty of the second count of arson. See TEX. PENAL CODE ANN. § 28.02(a)(1);
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d 560. Accordingly, we overrule
Appellant’s second issue.
Enhancement – Habitual Felony Offender
        In issue five, Appellant contends that the evidence is insufficient to prove that he was a
habitual offender. The State alleged that Appellant “was finally convicted of the felony offense
of Unlawful Possession of a Firearm – Felon” on March 20, 1996, and “was finally convicted of
the felony offense of Obstruction or Retaliation” on April 5, 2004. As previously discussed, the
State made two corrections prior to the trial court receiving evidence at the punishment hearing.
First, the State corrected the date that Appellant was finally convicted of unlawful possession of



                                                8
a firearm by a felon from March 20 to March 13, 1996. Second, the State corrected the county in
which Appellant was finally convicted of obstruction or retaliation from Jefferson County to
Orange County.
       After the State read aloud the first corrected allegation, the trial court asked Appellant
whether it was true or not true. Appellant responded, “It’s true on the conviction but the location
is wrong, sir, I was convicted in Orange.” Appellant then pleaded “not true” to that allegation.
       After the State read aloud the second corrected allegation, the following exchange
occurred:


       TRIAL COURT: How do you plead?

       APPELLANT:      That’s true, but the Orange enhancement had Beaumont on it, different county.

       TRIAL COURT: Well, the Orange one had Jefferson County on it.

       APPELLANT:      Yes, sir.

       TRIAL COURT: This amended one that was just read said Orange County.

       APPELLANT:      That’s correct.

       TRIAL COURT: And you’re pleading true to that one?

       APPELLANT:      I’m not sure of the date but it’s pretty close.



Defense counsel subsequently entered a plea of “not true” to the second allegation for Appellant
because he was not sure of the date.
       To prove the enhancement allegations, the State offered the pen packets of Appellant’s
convictions for unlawful possession of a firearm by a felon and obstruction or retaliation. From
the pen packet regarding the unlawful possession of a firearm conviction, the State presented
evidence that (1) Appellant committed the offense on February 17, 1996; (2) he pleaded “guilty”
on March 13, 1996; (3) the trial court found Appellant guilty of the offense on March 13, 1996;
(4) pursuant to a plea bargain agreement, the trial court sentenced Appellant to imprisonment for
a term of six years; and (5) Appellant waived his right to appeal. From the pen packet regarding
the obstruction or retaliation conviction, the State presented evidence that (1) Appellant
committed the offense on July 1, 2003; (2) he pleaded “guilty” on April 5, 2004; (3) the trial
court found Appellant guilty of the offense on April 5, 2004; (4) pursuant to a plea bargain



                                                        9
agreement, the trial court sentenced Appellant to imprisonment for a term of six years; and (5)
the trial court admonished Appellant that it must give him permission to prosecute an appeal on
any matter in the case except those matters raised by written motions filed prior to trial. The
judgment states, “NOTICE OF APPEAL: NONE.” Thus, the State presented evidence that
Appellant had a felony conviction that became final on March 13, 1996, he committed an offense
leading to a later felony conviction on July 1, 2003, and the second felony conviction became
final on April 5, 2004. All of these events occurred before Appellant committed either of the
felony offenses in this case.
        Although Appellant pleaded “not true” to the enhancement allegations, it appears that he
did so not because the convictions in the pen packets were not his, but because he either
disagreed with or could not remember details of the convictions. Furthermore, Appellant
admitted to previous felony convictions for unlawful possession of a firearm and retaliation
during his testimony at the guilt/innocence portion of the trial. After hearing all the evidence, the
trial court found both allegations “true” and assessed Appellant’s punishment at imprisonment
for twenty-five years. Viewing the evidence in the light most favorable to the prosecution, the
trial court was rationally justified in finding beyond a reasonable doubt that the enhancement
allegations were true and that Appellant was a habitual felony offender. See TEX. PENAL CODE
ANN. § 12.42(d); Wood, 486 S.W.3d at 587-88; Ex Parte Miller, 330 S.W.3d at 624.
        Accordingly, we overrule Appellant’s fifth issue.3


                                  INEFFECTIVE ASSISTANCE OF COUNSEL
        In his fourth issue, Appellant contends that he received ineffective assistance of counsel
because counsel failed to object to the trial court’s application of the habitual felony offender
punishment range.
Standard of Review and Applicable Law

        In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

        3
          Having found that the evidence is sufficient to find that Appellant is a habitual felony offender, we need
not address the merits of his third issue, namely, that the trial court erred by applying the wrong punishment range.
See TEX. R. APP. P. 47.1. Therefore, we overrule Appellant’s third issue.




                                                         10
1986). Under the first prong of the Strickland test, an appellant must show that counsel’s
performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires
the appellant to demonstrate that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. See id., 466 U.S. at 688, 104 S. Ct. at 2064-
65. To satisfy this requirement, the appellant must identify the acts or omissions of counsel
alleged to constitute ineffective assistance and affirmatively prove that they fell below the
professional norm for reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996). Trial counsel is not ineffective for failing to object unless the trial court
would have committed error in overruling the objection. See Vaughn v. State, 931 S.W.2d 564,
566 (Tex. Crim. App. 1996).
       Under the second prong of the Strickland test, the appellant must affirmatively prove
prejudice from the deficient performance of his counsel. See Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064; Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that his counsel’s errors, judged by the totality of the representation and not
by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not
enough for the appellant to show that the errors had some conceivable effect on the outcome of
the proceedings. Id. He instead must show that there is a reasonable probability that, but for his
counsel’s errors, the outcome would have been different either as to a reasonable doubt about his
guilt or the extent of his punishment. See id.; see also Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002). A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000).
       Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Appellant must prove both prongs of the Strickland test by a preponderance of the
evidence in order to prevail. Tong, 25 S.W.3d at 712.
Application

       We have held that the trial court did not err in finding that Appellant was a habitual
felony offender. Therefore, the trial court would not have erred in overruling an objection to its
application of the habitual felony offender punishment range. Accordingly, Appellant’s trial




                                                11
counsel was not ineffective for failing to object to the application of that punishment range. See
Vaughn, 931 S.W.2d at 566. We overrule Appellant’s fourth issue.


                                                   DISPOSITION
         Having overruled Appellant’s six issues, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered May 24, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                         12
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 24, 2017


                                         NO. 12-16-00003-CR


                                   RICKEY SHAYNE BOYKIN,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2015-0475)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
