Opinion issued October 15, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00615-CR
                           ———————————
                        DEVON HENSLEY, Appellant
                                      V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1421977


                         MEMORANDUM OPINION

      Appellant, Devon Hensley, was charged by indictment with aggravated

robbery. 1   Appellant pleaded not guilty and pleaded true to an enhancement

paragraph.    The jury found him guilty and assessed punishment at 43 years’

1
      See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011),
      § 31.03(a), (b)(1) (Vernon 2011).
confinement. In five issues, Appellant argues that the evidence is insufficient to

support his conviction and that the trial court abused its discretion by denying his

Theus motion to testify free from impeachment, allowing the State to question him

about an extraneous aggravated robbery, allowing photographic exhibits pertaining

to the extraneous aggravated robbery, and permitting the State to make an

improper jury argument.

      We affirm.

                                    Background

      On September 7, 2013, Keanthony Wilson and Clandre Celestine went to

Greenspoint Mall to attend a carnival. Around 11:30 p.m., as the carnival was

closing, Wilson and Celestine began walking back to Wilson’s car. As they neared

the car, Appellant approached Wilson and asked him what time it was. Wilson

looked at his cell phone to see the time, and Appellant put a gun to his hip and

demanded his keys and wallet.        Wilson and Celestine testified at trial that

Appellant took Wilson’s keys and vehicle, cell phone, and shoes and took

Celestine’s shoes and jacket. They both also testified that they did not know

Appellant prior to this incident.

      Appellant presented a different version of events at trial. He testified that he

had dealt drugs to Celestine for about five years but did not really know Wilson.

Appellant claimed that there was a planned meeting for Wilson and Celestine to



                                          2
meet with him on the night in question. They were meeting because Celestine

owed Appellant money for drugs.        He claimed that the meeting lasted thirty

minutes.   Appellant stated that Celestine had come up with the plan to give

Appellant Wilson’s car instead of the money he owed him, and as a result of this

plan, Appellant was given the keys to Wilson’s car. Appellant denied pulling out a

gun, taking the car without Wilson’s consent, or taking personal items from both

Wilson and Celestine. During his testimony, Appellant identified Wilson and

Celestine by what Appellant asserted were their street names: K and CC,

respectively.

      The State asserted at trial that, two days after the encounter with Wilson and

Celestine, Appellant committed another aggravated robbery offense. The State

presented the testimony of the complainant for that offense, William McLaughlin.

McLaughlin testified that, on September 9, 2013 at about 9:30 a.m., he was sitting

in the Greenspoint Mall parking lot waiting for his business meeting and reading

over some of his notes. After about twenty minutes, he got out of his car to go into

his trunk and retrieve his brief case.       At this point, Appellant drove up to

McLaughlin and asked him for directions.         Immediately following, Appellant

produced a handgun and told McLaughlin to give him everything he had.

McLaughlin gave Appellant his wallet and told him his cell phone was in the

console of his car, and that Appellant could take anything he wanted. McLaughlin



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testified that, at that point, he saw an opening and jumped back into his car, shut

the door, and drove off, not looking back.        McLaughlin then followed an

ambulance to a station, where he called the police. After making a report of the

incident and speaking with robbery detectives, McLaughlin made a positive photo

identification of Appellant. McLaughlin testified that he made it with ninety

percent accuracy.

      Appellant was arrested that same day, about an hour after McLaughlin’s

robbery. Deputy Kenneth Taylor was conducting traffic stops near Greenspoint

Mall. Deputy Taylor ran the license plate of the car Appellant was driving, and it

came back as a stolen. At that time, Appellant had already pulled into a nearby gas

station, exited his vehicle, and walked inside the store. Deputy Taylor arrested

Appellant. After Appellant was arrested, certain items belonging to McLaughlin

were found in the car, including a laptop computer and computer bag.

McLaughlin’s credit card and driver’s license were found in Appellant’s front right

pocket. Appellant initially claimed that he had found these items in the street on

Ella Boulevard; however, Appellant later told Deputy Taylor that he had been

given the property by a friend.

      Before trial, the State served Appellant with an amended notice of intention

to use evidence of Appellant’s prior convictions and extraneous offenses, which

included the offense against McLaughlin. Appellant filed a motion in limine



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objecting in part to the list of the extraneous offenses provided in the State’s

notice. The trial court granted Appellant’s motion in limine.

      During cross-examination, the State questioned Appellant regarding his

whereabouts prior to being arrested. Appellant’s description of his whereabouts

that morning were inconsistent with the allegations of McLaughlin’s robbery. The

State also asked Appellant if he knew whose things were in the car. Appellant

responded that it was not his car and that the car was not in his possession so he

did not know whose items they were. Immediately following Appellant’s cross-

examination, a bench conference took place during which the State sought

permission to introduce evidence of the McLaughlin robbery. The trial court

allowed it. The State then presented McLaughlin’s testimony and photographic

evidence concerning the robbery.

      Also prior to trial, Appellant filed a motion to permit him to testify free of

impeachment with prior convictions, known as a Theus motion.2 Appellant argued

that the prejudicial value of the convictions would outweigh the probative value as

to any issue in the trial. The trial court denied the motion. During Appellant’s

direct examination at trial, Appellant’s counsel prompted questions regarding two

previous convictions of possession of a controlled substance with intent to deliver

and theft. Appellant admitted having both convictions. On cross-examination, the


2
      See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992).

                                         5
State further questioned Appellant regarding his criminal history, and Appellant

did not object.

      In closing arguments at trial, the State asserted a number of reasons why

Appellant’s testimony should not be believed. The State claimed that there had

been no evidence that Wilson and Celestine have ever used drugs in their life and

that Appellant made up nicknames for Wilson and Celestine. Appellant objected

that the State’s argument was outside the evidence. The trial court overruled

Appellant’s objection.

                           Sufficiency of the Evidence

      In his first issue, Appellant argues that the evidence at trial was insufficient

as a matter of law to sustain Appellant’s conviction for the offense of aggravated

robbery.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a



                                          6
conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and



                                          7
circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.    Analysis

      Appellant was charged with the offense of aggravated robbery. As it applies

to Appellant, a person commits aggravated robbery when he “commits robbery . . .

and . . . uses or exhibits a deadly weapon . . . .”       TEX. PENAL CODE ANN.

§ 29.03(a)(2) (Vernon 2011). A person commits robbery when “in the course of

committing theft . . . and with intent to obtain or maintain control of the property,

he . . . intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death.” TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A

person commits theft when “he unlawfully appropriates property with intent to

deprive the owner of property.”      TEX. PENAL CODE ANN. § 31.03(a) (Vernon

2011). “Appropriation of property is unlawful if it is without the owner’s effective

consent.” Id. § 31.03(b)(1). Appellant claims the evidence was insufficient to

establish he took anything from Wilson or Celestine without his effective consent.

      Appellant testified that a drug debt existed between him and Celestine and

that, when he took possession of Wilson’s vehicle, it was an agreed-upon exchange

for money that Celestine had owed Appellant. Appellant testified that this agreed-



                                         8
upon exchange was Celestine’s idea, that he was never in possession of a firearm,

and that he never took any personal items from Wilson or Celestine. In contrast,

Wilson and Celestine both testified that Appellant robbed them at gunpoint and

took their personal items and Wilson’s vehicle without their consent. Both Wilson

and Celestine denied that any agreed-upon exchange for a drug debt ever existed.

      Wilson’s and Celestine’s testimony provide evidence that everything

Appellant took from them was without their effective consent.             Viewing the

evidence in the light most favorable to the jury’s verdict, there is sufficient

evidence to support this challenged element. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Laster, 275 S.W.3d at 517 (holding courts must view evidence in light

most favorable to jury’s verdict in reviewing sufficiency of evidence).

      In his brief, Appellant cites to a certain number of admissions and a certain

number of inconsistencies by Wilson and Celestine that Appellant asserts should

have led the jury to conclude that their testimony was not credible. Appellant

acknowledges that appellate courts must defer to jury’s determinations of

credibility. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d

at 778. Nevertheless, Appellant suggests in his brief that, in certain circumstances,

due process concerns allow a court to overrule a jury’s credibility determination in

a sufficiency-of-the-evidence review. Appellant does not provide any authority for




                                         9
this argument,3 explain which circumstances warrant overruling a jury’s credibility

determination, or in any other way develop this argument. See TEX. R. APP. P.

38.1(i) (requiring briefs to “contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record).

      We hold the evidence is sufficient to establish that Appellant took Wilson’s

and Celestine’s belongings without their effective consent.                We overrule

Appellant’s first issue.

                                    Theus Motion

      In his second issue, Appellant argues that the trial court abused its discretion

by denying his Theus motion to testify free from impeachment. The State argues

this issue has been waived. We agree.

      Before trial, Appellant filed a Theus motion, seeking to exclude questioning

about prior convictions. See Theus v. State, 845 S.W.2d 874, 880–82 (Tex. Crim.

App. 1992).     The trial court denied the motion.          During Appellant’s direct


3
      Appellant does cite to Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth
      2014, pet. ref’d) in this portion of his brief. Stobaugh holds, however, that “when
      performing an evidentiary sufficiency review, [appellate courts] may not re-
      evaluate the weight and credibility of the evidence and substitute our judgment for
      that of the factfinder.” Id. at 842. Appellant provides no explanation for how this
      case supports his argument. The court held in Stobaugh that the State had failed to
      carry its burden on certain elements, reasoning that conflicting statements by the
      defendant were not sufficient to create circumstantial proof of the elements. See
      id. at 863–68. Here, the State did not rely on conflicting statements to establish
      guilt. Instead, Appellant is relying on purported conflicts in the evidence to claim
      that credibility issues were so great that the jury could not be permitted to weigh
      them. Stobaugh does not support this legal claim.

                                           10
examination at trial, Appellant’s counsel prompted questions regarding two

previous convictions of possession of a controlled substance with intent to deliver

and theft. Appellant admitted having both convictions. On cross-examination, the

State further questioned Appellant regarding his criminal history, and Appellant

did not object.

          As a general rule, a defendant may not argue on appeal that evidence was

improperly admitted if the defendant introduced the same evidence at trial.4

Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref’d).     There is an exception to this rule when the defendant introduces the

evidence in an effort to “meet, rebut, destroy, deny, or explain evidence that

already has been improperly admitted.” Id. (citing Rogers v. State, 853 S.W.2d 29,

35 (Tex. Crim. App. 1993)). This exception, however, does not extend to the pre-

emptive disclosure of a prior conviction made before the State offers any evidence

on the issue. See Johnson v. State, 981 S.W.2d 759, 761 (Tex. App.—Houston [1st

Dist.] 1998, pet. ref’d); Wootton, 132 S.W.3d at 84; Cisneros v. State, 290 S.W.3d

457, 468 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d).

          Appellant has not identified any evidence that was improperly admitted

before he testified and that his testimony of his prior convictions was meant to

rebut or explain. Accordingly, Appellant’s answering questions about his prior

4
          E.g., Lee v. State, 01-13-00167-CR, 2014 WL 1267031, at *1 (Tex. App.—
          Houston [1st Dist.] Mar. 27, 2014, no pet.).

                                          11
convictions on direct examination waived his arguments raised in the Theus

motion. See Johnson, 981 S.W.2d at 761; Wootton, 132 S.W.3d at 84; Cisneros,

290 S.W.3d at 468. We overrule Appellant’s second issue.

                        Admission of Extraneous Offense

      In his third and fourth issues, Appellant argues that the trial court abused its

discretion when it allowed testimony and photographic exhibits regarding an

extraneous aggravated robbery committed by Appellant the day he was arrested.

A.    Standard of Review

      When reviewing a trial court’s decision on the admissibility of evidence the

proper standard of review is abuse of discretion. Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010). An abuse of discretion occurs when a decision

“lies outside the zone of reasonable disagreement.”        Id.; Casey v. State, 215

S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court’s decision is generally

within the “zone of reasonable disagreement” if the evidence shows that the

extraneous offense is relevant and not for the purpose of showing criminal

propensity, and the probative value of that evidence is not substantially outweighed

by prejudice, confusion of issues, or misleading to the jury. De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009). There is no abuse of discretion if

the trial court’s decision can by upheld by any theory of law. Id.




                                         12
B.    Analysis

      During trial, the trial court allowed the State to call a witness, McLaughlin,

to testify about a separate offense of aggravated robbery that the State alleged

Appellant also committed. On appeal, Appellant argues the trial court abused its

discretion by allowing McLaughlin to testify.

      Rule 404(b) of the Texas Rules of Evidence prohibits the admission of

extraneous offenses to prove conformity or propensity to commit bad acts, but

allows admission to show “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID.

404(b). Exclusion of evidence under Rule 404(b) is proper when the evidence

does not have any relevance apart from character conformity. Casey, 215 S.W.3d

at 879. However, even if the evidence is permissible under Rule 404(b), it may

still be excluded by the trial court under Rule 403 of the Texas Rules of Evidence

if its probative value is substantially outweighed by the danger of prejudice. TEX.

R. EVID. 403; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).

      On appeal, Appellant argues that the trial court abused its discretion in

allowing McLaughlin’s testimony and the photographic exhibits regarding the

extraneous aggravated robbery. Relying on Rule 404(b), Appellant argues that the

extraneous evidence is not admissible because it only proves character conformity

and propensity to commit bad acts. See TEX. R. EVID. 404(b)(1). Relying on Rule



                                        13
403, Appellant argues that, even if the extraneous evidence is admissible and

relevant, its probative value does not outweigh its danger of unfair prejudice. TEX.

R. EVID. 403. Further, Appellant claims that the trial court erred by not conducting

a balancing test as required by Montgomery and Rule 403. Id.; Montgomery v.

State, 810 S.W.2d 372, 395 (Tex. Crim. App. 1990).

       In Cantrell, the Court of Criminal Appeals analyzed the admissibility of an

unadjudicated offense of aggravated robbery that occurred after the aggravated

robbery offense for which the defendant had been charged. Cantrell v. State, 731

S.W.2d 84, 88–91 (Tex. Crim. App. 1987).          Under the charged offense, the

complainant claimed that the defendant had confronted him about an affair that the

defendant’s wife confessed to having with him. Id. at 86. The wife had claimed

that, during one of their encounters, the complainant had raped her. Id. at 87. The

complainant testified that, during the encounter, the defendant pointed a gun and

then a knife at him, threatened to cut and kill him, and demanded that the

complainant write a check for $5,000 that the defendant and his wife would cash.

Id. at 86.

       The wife testified at trial that she and the defendant went over to the

complainant’s residence just to discuss matters with him. Id. at 87. She denied

that the defendant had a gun or knife with him during the encounter. Id. at 88. She




                                        14
testified that the complainant confessed to the rape and offered $5,000 as a way to

make up for his actions. Id.

      In its rebuttal phase, the State presented the testimony, over the defendant’s

objection, of a woman claiming that the defendant had robbed her at gunpoint. Id.

This offense occurred about ten months later. See id. at 86, 88. The woman

testified that she awoke one morning in her room and saw the defendant pointing a

gun at her.   Id. at 88.   The defendant took the woman’s jewelry, cash, and

automobile. Id. The defendant complained on appeal that evidence of this offense

should not have been admitted. Id.

      The court recognized the general rule that admission of extraneous offenses

is inherently prejudicial. Id. The court observed that the test for admission of

extraneous offenses requires a showing that the offense is relevant to a material

issue in the case and that the relevance outweighs the prejudicial effect. Id. at 89;

see also TEX. R. EVID. 403, 404(b)(2). “In weighing probative value against

prejudicial effect, this Court has consistently held that the State may not introduce

an extraneous offense as circumstantial evidence of an element in its case-in-chief

if that element can readily be inferred from other uncontested direct evidence.”

Cantrell, 731 S.W.2d at 89 (emphasis added). When a defensive theory presents

conflicting evidence of an element of the State’s burden of proof, however, the

categorical prohibition is removed. See id.



                                         15
      For proof of intent, in particular, the degree of similarity between the offense

under consideration and the extraneous offense “is not so great . . . as when

identity is the material issue, and extraneous offenses are offered to prove modus

operandi.” Id. at 90. The court observed that the extraneous offense was relevant

to prove intent and that the defense had presented evidence contesting the issue of

intent. Id. at 91. Identity was not a contested issue for the tried offense. Id. at 90.

The court noted, “Both the primary and extraneous offenses were aggravated

robberies committed at private residences at approximately the same time of the

morning. Both were committed at gunpoint shortly after the victim had awakened

or was getting ready to go to work.” Id. As a result, the court held, “There were

sufficient common similar characteristics between the offenses.” Id.

      Cantrell is strikingly similar to this case.      As in Cantrell, identity of

Appellant was never in dispute, but intent was in dispute. Appellant admitted to

being at the location in question with Wilson and Celestine but claimed that

Wilson and Celestine gave him the car to settle a debt. Also as in Cantrell,

Appellant’s underlying offense and the extraneous offense were for aggravated

robbery. Not only did the offenses occur in similar locations, they both occurred at

the same location: the parking lot at the Greenspoint Mall. They occurred less than

48 hours apart. Both involved Appellant approaching a stranger, asking for some

information, and then pointing a gun at them when the victim was distracted.



                                          16
      We hold there was sufficient evidence in the record to support a

determination by the trial court that the extraneous offense was relevant to the

State’s burden of proving intent and that the prejudicial value did not substantially

outweigh its probative effect. See id. We overrule Appellant’s third and fourth

issues.

                             Closing Jury Argument

      In his fifth issue, Appellant argues that the trial court erred when it failed to

sustain Appellant’s objection that the prosecution’s jury argument was attempting

to inject her own personal belief as to evidence, which was outside the record and

improper.

A.    Standard of Review

      We review a trial court’s ruling on an objection to jury argument under the

abuse-of-discretion standard. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim.

App. 2010). “[P]roper jury argument generally falls within one of four general

areas: (1) summation of the evidence; (2) reasonable deduction from the evidence;

(3) answer to argument of opposing counsel; and (4) plea for law enforcement.”

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); accord Alejandro v.

State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Trial counsel must confine

their arguments to the record and only make references to facts that are either in

evidence or inferable from the evidence, otherwise their argument is improper.



                                          17
Brown, 270 S.W.3d at 570. Ultimately, error exists when the prosecution interjects

facts in their argument that are not supported by the record; however, this error is

not reversible unless, in light of the record, the argument is extreme or manifestly

improper. Brown, 270 S.W.3d at 57; Allridge v. State, 762 S.W.2d 146, 155 (Tex.

Crim. App. 1988).

B.    Analysis

      “A prosecutor may not use closing arguments to present evidence that is

outside the record.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App.

2011). However, a prosecutor may, in the argument, draw from the facts in

evidence all inferences which are reasonable, fair, and legitimate. Borjan v. State,

787 S.W.2d 53, 57 (Tex. Crim. App. 1990); Jordan v. State, 646 S.W.2d 946, 948

(Tex. Crim. App. 1983).

      In closing arguments at trial, the State asserted that Appellant’s testimony

should not be believed. The State’s reasons included that there has been no

evidence that Wilson and Celestine have ever used drugs in their life and that

Appellant made up nicknames for Wilson and Celestine. Appellant objected that

the State’s argument was outside the evidence. However, the trial court overruled

Appellant’s objection.    On appeal, Appellant argues that the State’s closing

argument was improper because the prosecutor crossed the line by injecting her

own personal belief as to what the evidence was or was not.



                                        18
      In his testimony at trial, Appellant stated that he refers to Celestine as “CC”

and Wilson as “K”. Appellant then admitted that he made up his nickname for

Celestine, and that he does not know if anyone else calls Celestine by this

nickname. Likewise, the only evidence at trial about Wilson or Celestine being

drug users came from Appellant’s testimony. Both Wilson and Celestine denied

having met or otherwise knowing Appellant before the robbery.           Wilson and

Celestine’s description of events on the day in question was incompatible with

Appellant’s description.    It is a reasonable inference from the record that

Appellant’s description was made up and that Wilson and Celestine’s alleged drug

use and alleged nicknames were facts made up in an effort to make Appellant’s

version sound believable.

      We hold that the trial court did not err when it overruled Appellant’s

objection that the State’s closing jury argument was improper.         We overrule

Appellant’s fifth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Jennings, Higley, and Brown.


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Do not publish. TEX. R. APP. P. 47.2(b).




                                           20
