                          NUMBER 13-11-00137-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JAMES EDWARD PEARSON,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant James Edward Pearson challenges his conviction by a jury on two

counts of intoxication manslaughter, a second-degree felony that was enhanced to a

first-degree felony as a result of a prior felony conviction. See TEX. PENAL CODE ANN. §§

49.08(a), 12.42(b) (West, Westlaw through 2013 3d C.S.). By six issues, which we
reorganize as three, appellant argues that: (1) the trial court erred in denying his motion

to suppress the blood draw evidence collected by police because police lacked exigent

circumstances for the warrantless search; (2) the trial court erred in admitting expert

retrograde extrapolation testimony that appellant contends was unreliable; and (3) the

evidence supporting his conviction was insufficient. We affirm.

                                           I. Background1

        Appellant was indicted for two counts of intoxication manslaughter in connection

with his involvement in a 4:00 a.m. car accident on October 26, 2008 in San Benito, Texas

that killed two teenage girls. Appellant pleaded not guilty to the charged offense, and his

case was tried to a jury.

        At trial, the State introduced evidence resulting from a blood-draw taken by nurses

at the hospital to which appellant was transported after the accident. Jose Zuniga of the

Texas Department of Public Safety (DPS) Crime Lab testified that he ran the tests on the

blood taken, and those tests showed that appellant had a blood alcohol concentration

(BAC) of approximately .10 at the time the sample was taken, which was at around 10:30

a.m., over six hours after the accident. Zuniga also testified as the State's expert on

retrograde extrapolation.          He provided a generalized retrograde extrapolation of

appellant's BAC at the time of the accident, testifying that a hypothetical male weighing

approximately 135 pounds, who had a BAC of .10 at 10:30 a.m. but consumed his last

drink at 2 a.m., and who absorbs and eliminates alcohol from his system at the rate of an

average healthy individual would, at the time of a 4:00 a.m. accident, have a BAC of

         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
                                                     2
approximately .26.     Finally, the State presented the testimony of the various law

enforcement and emergency medical services (EMS) personnel involved in the accident,

who testified that at the time of the accident and at the hospital, appellant smelled strongly

of alcohol.   Law enforcement officers and an accident-scene reconstruction expert

further testified that the details of the collision—that appellant was travelling at a high rate

of speed and did not brake before colliding with the victims' vehicle; that appellant veered

into the victims' lane of traffic; car fluids on the road and gauge marks and other road

damage indicative of a high-speed, out-of-control collision; and the extensive damage to

the vehicles involved in the crash—indicated that appellant was intoxicated.

       Appellant moved to suppress the BAC evidence and expert testimony on the basis

that the blood draw was warrantless and unjustified by exigent circumstances. Appellant

also objected to the expert testimony, under the rules of evidence, as unreliable. The

trial court denied the motion to suppress and the evidentiary objection.

       After the close of evidence, the jury returned a guilty verdict on both counts. The

trial court sentenced appellant to fifty years' incarceration on each count and ordered the

sentences to run concurrently. This appeal followed.

                        II. Motion to Suppress the Blood Draw

       By his first issue, appellant argues that the trial court erred in failing to suppress the

blood draw evidence collected by police.

A. Standard of Review

       We review a trial court's ruling on a motion to suppress for an abuse of discretion,

under a bifurcated standard. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App.


                                               3
2010); Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Carmouche v.

State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The trial court is given almost

complete deference in its determination of historical facts, especially if they are based on

an assessment of credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010). The same deference is afforded the trial court in its rulings on the

application of the law to questions of fact and to mixed questions of law and fact, if

resolution of those questions depends on an evaluation of credibility and demeanor. Id.

However, for mixed questions of law and fact that do not fall within that category, a

reviewing court conducts a de novo review. Id.

       In ruling on the motion to suppress, the trial court is the exclusive trier of fact and

judge of a witness's credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). Accordingly, a trial court may choose to believe or to disbelieve all or any part of

a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

However, a trial court has no discretion in determining what the law is or applying the law

to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Thus, a failure

by a trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

       We view all of the evidence in the light most favorable to the trial court's ruling.

State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the

prevailing party is entitled to "the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence." Id. Since all evidence is

viewed in the light most favorable to the trial court's ruling, we are obligated to uphold its

ruling on a motion to suppress if that ruling is supported by the record and is correct under


                                              4
any theory of law applicable to the case. Ross, 32 S.W.3d at 856; Carmouche, 10

S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

B. Applicable Law

        The taking of a blood sample is a search and seizure under both the federal and

Texas constitutions.       Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982).

However, under certain circumstances, a blood sample taken without a warrant is not an

unreasonable search and seizure and, therefore, comports with constitutional

requirements. Schmerber v. California, 384 U.S. 757, 770–71 (1966); see U.S. CONST.

amend. IV. Police officers may constitutionally obtain a blood sample without a warrant

or consent if they have probable cause for a warrantless arrest, exigent circumstances,

and a reasonable method of extraction. Schmerber, 384 U.S. at 770–71; see Aliff, 627

S.W.2d at 169–70.2 The natural metabolization of alcohol in the bloodstream does not

present a per se exigency that justifies an exception to the Fourth Amendment's warrant

requirement for all nonconsensual blood testing when intoxication is suspected.

Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013). Instead, exigency in this context

must be determined on a case-by-case basis considering the totality of the

circumstances, including the well-settled fact that alcohol in the bloodstream begins to

dissipate quickly as a soon as a person stops drinking. Id.; see Aliff, 627 S.W.2d at 169.

C. Analysis

        The following relevant facts are undisputed. When Texas Department of Public
        2  In Texas, there are also statutory requirements that may apply when a person is arrested for an
intoxication-related offense. See TEX. TRANSP. CODE ANN. §§ 724.011-.013, 724.015 (West, Westlaw
through 2013 3d C.S.); State v. Laird, 38 S.W.3d 707, 713–14 (Tex. App.—Austin 2000, pet. ref'd). But the
Texas Implied Consent and Mandatory Blood Draw Statutes are not applicable in this case because
appellant was not under arrest. See TEX. TRANSP. CODE ANN. § 724.011(a); see also State v. Johnston,
336 S.W.3d 649, 661 (Tex. Crim. App. 2011).
                                                    5
Safety (DPS) Trooper Ramiro Aguilar arrived at the scene of the accident at around 4:50

a.m., appellant and the remaining survivors of the crash had already been transported to

the hospital. Trooper Aguilar was informed by San Benito Police Officer Jaime Perez

and various EMS personnel that appellant had smelled strongly of alcohol; Officer Perez

told Trooper Aguilar that appellant was "wasted." Appellant told both Officer Perez and

EMS that he had been drinking that night. Trooper Aguilar completed his investigation at

the scene before going to the hospital at approximately 10 a.m. to speak with appellant.

At this time, appellant denied that he had been drinking and refused to consent to a blood

draw. Without a warrant, Trooper Aguilar directed a nurse to take a blood sample from

appellant. Appellant was not arrested at this time.

      At trial, Trooper Aguilar testified that he was the only DPS officer on duty that

morning. He was solely responsible for securing the accident scene and preserving and

collecting the evidence at the scene. In his investigation of the scene, Trooper Aguilar

found empty beer cans around appellant's vehicle. Trooper Aguilar testified that when

he arrived at the hospital approximately six hours after the accident, appellant had blood

shot eyes, was speaking slowly, and still smelled strongly of alcohol. Hospital personnel

told Trooper Aguilar that appellant had refused medical treatment. Trooper Aguilar

testified that he did not take the time to secure a warrant at this point because it was a

Sunday, and it would have taken at least three hours to get a warrant at this time. He

testified that because alcohol dissipates rapidly from the blood, he needed to collect a

sample from appellant before any further evidence of his possible intoxication was lost.

When the blood sample came back from the DPS lab showing a BAC in excess of the


                                            6
legal limit, a warrant was issued for appellant's arrest.

       Appellant argues that the six-hour delay in taking the blood draw vitiates any

exigent circumstances Trooper Aguilar might have had in not obtaining a warrant. 3

Appellant argues that Trooper Aguilar created the exigency in this case by waiting six

hours to obtain the blood sample. See Kentucky v. King, 131 S.Ct. 1849, 1858 (2011)

(holding that warrantless entry to prevent the destruction of evidence is not allowed where

police "create the exigency by engaging or threatening to engage in conduct that violates

the Fourth Amendment").

       We do not believe Trooper Aguilar created the exigent circumstances in this case.

Trooper Aguilar testified that he was the only officer on duty that morning and that he was

solely responsible for securing the scene of the accident. He testified that he traveled to

the hospital as soon as he completed his duties at the accident scene, which were

time-consuming and extensive. Finally, he testified that because it was a Sunday, it

would have taken at least three hours to obtain a warrant from a judge, and because so

much time had already passed since the accident, he could not wait for a warrant before

obtaining a blood sample because the potential evidence of intoxication was rapidly

degrading. The trial court was entitled to credit Trooper Aguilar's version of events.

See Ross, 32 S.W.3d at 855. Under the record before it, the trial court could have

reasonably determined that Trooper Aguilar went to the hospital as soon as was

practicable considering the circumstances of that morning.             Moreover, determining

whether an officer impermissibly manufactured an exigency depends on "'the

       3 Appellant does not challenge whether Trooper Aguilar had probable cause to arrest him or

whether a reasonable method of extraction was used.

                                               7
reasonableness and propriety of the investigative tactics that generated the exigency.'"

United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (quoting United States v. Duchi,

906 F.2d 1278, 1284 (8th Cir. 1990)). Based on Trooper Aguilar's explanation of the

events of that morning, the trial court could have reasonably concluded that the officer's

investigative tactics were not an attempt to deliberately create exigent circumstances that

would justify a warrantless blood draw. In the end, the foregoing were mixed questions

of law and fact that depended on the trial court's assessment of Trooper Aguilar's

credibility, and we must defer to the trial court's determination of these questions. See

Crain, 315 S.W.3d at 48.

       Having considered the totality of the circumstances and viewing the evidence in

the light most favorable to the ruling, we conclude that the trial court did not abuse its

discretion in determining that Trooper Aguilar acted under exigent circumstances in

having appellant's blood drawn without a warrant. See McNeely, 133 S.Ct. at 1556; see

also Castleberry, 332 S.W.3d at 465; see also Aliff, 627 S.W.2d at 169. Therefore, the

evidence resulting from the blood draw—appellant's BAC and the retrograde

extrapolation testimony by Zuniga—was properly admitted on this basis.                See

Schmerber, 384 U.S. at 770–71. We overrule appellant's first issue.

                      III. Retrograde Extrapolation Testimony

       Having overruled appellant's Fourth Amendment argument, we now turn to his

second issue, in which he argues that the trial court abused its discretion in admitting

Zuniga's retrograde extrapolation testimony as expert evidence because it was

unreliable.


                                            8
       The science of retrograde extrapolation concerns the computation of a person's

BAC at the time of driving based on a test result obtained some time later. See Mata v.

State, 46 S.W.3d 902, 908–09 (Tex. Crim. App. 2001) (en banc). We review a trial

court's ruling on the admissibility of scientific evidence under an abuse-of-discretion

standard.     Id. at 908–09.   The proponent of scientific evidence has the burden of

demonstrating by clear and convincing evidence that the evidence is reliable. Id. at 908.

This is accomplished by showing the validity of the underlying scientific theory, the validity

of the technique applying the theory, and the proper application of the technique on the

occasion in question. Id.

       In assessing the reliability of retrograde extrapolation evidence, in particular, we

consider the following factors relevant to this case:

       (a) the length of time between the offense and the test(s) administered; (b)
       the number of tests given and the length of time between each test; and (c)
       whether, and if so, to what extent, any individual characteristics of the
       defendant were known to the expert in providing his extrapolation. These
       characteristics and behaviors might include, but are not limited to, the
       person's weight and gender, the person's typical drinking pattern and
       tolerance for alcohol, how much the person had to drink on the day or night
       in question, what the person drank, the duration of the drinking spree, the
       time of the last drink, and how much and what the person had to eat either
       before, during, or after the drinking.

Id. at 916.

       The State concedes that, in this case, Zuniga's testimony did not meet Mata's

standards in that the expert did not have knowledge of any individual characteristics of

appellant that might have affected the calculation. Moreover, we note that six hours

elapsed between the accident and the time that the blood draw was administered and that

only one test was administered. See id. Given that all three Mata factors weigh against

                                              9
the reliability of the expert testimony in this case, we conclude that the trial court abused

its discretion in admitting the testimony. We must next decide whether the admission of

that testimony harmed appellant. And we believe that it did not.

       The    erroneous     admission     of    retrograde   extrapolation   testimony     is

non-constitutional error. Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App.

2003); see also Martinez v. State, 155 S.W.3d 491, 495–96 (Tex. App.—San Antonio

2004, no pet.); Douthitt v. State, 127 S.W.3d 327, 333 (Tex. App.—Austin 2004, no pet.).

Therefore, we must disregard the trial court's error in admitting the State's retrograde

extrapolation testimony unless it affected appellant's substantial rights. See TEX. R. APP.

P. 44.2(b). An appellate court may not reverse a judgment for non-constitutional error if

the court, after examining the record as a whole, has fair assurance that the error did not

influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001). We must consider the entire record, including testimony, evidence,

voir dire, closing arguments, and jury instructions, to determine whether the jury was

affected. Bagheri, 119 S.W.3d at 763; Motilla v. State, 78 S.W.3d 352, 355–56 (Tex.

Crim. App. 2002). We should also consider the nature of the evidence supporting the

verdict, the character of the alleged error and how it might be considered in connection

with other evidence in the case, whether the State emphasized the error, whether the

erroneously admitted evidence was cumulative, and whether it was elicited from an

expert. Bagheri, 119 S.W.3d at 763.

       Here, the theory of retrograde extrapolation was raised by neither party during voir

dire or opening statements. Further, nothing occurred during voir dire or any other stage


                                               10
that indicated any predisposition on the part of the jury toward giving scientific testimony

more weight.     Zuniga's testimony comprised approximately forty pages of a hefty

four-volume reporter's record of trial testimony.     Of those forty pages, over half of

Zuniga's testimony was devoted not to retrograde extrapolation, but to an explanation of

how he derived appellant's .10 BAC at the time of the blood draw. While the State did

recount the extrapolation testimony in its closing arguments, it also specifically exhorted

the jury to consider all of the evidence, and we cannot say that the State implied that the

extrapolation testimony, alone, was sufficient to show intoxication. During its closing, the

State also pointed to appellant's admission that he had been drinking and his refusal to

take a blood test as evidence of his intoxication. And while it is true that Zuniga was

offered as an expert, having reviewed the entire record, we find it clear that the State's

strategy did not hinge on Zuniga's expert status. Zuniga, himself, readily admitted on

cross-examination that his testimony was a generalized extrapolation based on

hypothetical facts.

       But perhaps most importantly, the evidence in addition to the extrapolation

testimony that supported the jury's intoxication manslaughter verdict was overwhelming.

See Douthitt, 127 S.W.3d at 338 (finding no harm in the erroneous admission of

retrograde extrapolation testimony where the testimony was cumulative of other strong

evidence of intoxication); see also Morris v. State, 214 S.W.3d 159, 180–82 (Tex.

App.—Beaumont 2007), aff'd on other grounds, 301 S.W.3d 281 (Tex. Crim. App. 2009)

(finding any error in the introduction of retrograde extrapolation evidence harmless in light

of other overwhelming evidence of intoxication). Multiple witnesses—including EMS


                                             11
personnel and law enforcement officers—testified that appellant smelled strongly of

alcohol at the scene.    Officer Perez, in particular, described appellant as "wasted."

Even six hours after the crash, Trooper Aguilar testified that appellant still smelled of

alcohol, was speaking slowly, and had blood-shot eyes. Appellant refused a blood test

at the hospital. Officer Perez and paramedics who were at the scene testified that

appellant admitted to them that he had been drinking prior to the crash.              In his

investigation at the scene, Trooper Aguilar found beer cans around appellant's truck.

Trooper Aguilar and a DPS accident reconstruction specialist both testified that the

evidence collected at the scene showed a violent collision that could be explained by

intoxication. Both testified that there were no skid marks on the road, which indicated

that the accident occurred suddenly, without time for anyone to brake. Trooper Aguilar

testified that there were car fluids on the road, gouge marks in the pavement, and

catastrophic damage to the vehicles, all of which was evidence of a violent, high-speed

and high-impact collision. Finally, both testified that it was apparent from the damage to

the vehicles, the debris in the roadway, and other physical details gathered at the scene

that appellant had veered into the on-coming lane of traffic. In short, there was ample

evidence from which the jury could infer that, at the time of the accident, appellant did not

have the normal use of his mental or physical faculties as a result of alcohol. See TEX.

PENAL CODE ANN. § 49.08(a), § 49.01(2) (West, Westlaw through 2013 3d C.S.); see also

Morris, 214 S.W.3d at 180–82; Douthitt, 127 S.W.3d at 338. Zuniga's extrapolation

testimony was cumulative of the foregoing evidence showing appellant's intoxication.

       On the record before us, we have fair assurance that the trial court's error in


                                             12
admitting the retrograde extrapolation testimony did not influence the jury or had but a

slight effect. Thus, appellant was not harmed by the error. See Solomon, 49 S.W.3d at

365. We overrule his second issue.

                            IV. Sufficiency of the Evidence

       By his final issue, appellant argues that the evidence was insufficient to prove that

he was intoxicated, an essential element of the charged offense. See TEX. PENAL CODE

ANN. § 49.08(a).

A. Standard of Review and Applicable Law

       In a sufficiency review, courts examine the evidence in the light most favorable to

the verdict to determine whether "any rational fact finder could have found guilt beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency 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."). This standard requires reviewing courts to resolve

any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is

the exclusive judge of the facts, the credibility of the witnesses, and the weight to give

their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC. ANN. art. 38.04

(West, Westlaw through 2013 3d C.S.) ("The jury, in all cases, is the exclusive judge of

the facts proved, and of the weight to be given to the testimony . . . ."). Appellate courts

do not re-evaluate the weight and credibility of the evidence; they only ensure that the fact

finder reached a rational decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.


                                             13
App. 2009). A fact finder may support its verdict with reasonable inferences drawn from

the evidence, and it is up to the fact finder to decide which inference is most reasonable.

Id. at 523.

        Legal sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge

is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.

Here, appellant was intoxicated as defined by the relevant statute if: (1) he did not have

"the normal use of mental or physical faculties by reason of the introduction of alcohol, a

controlled substance, a drug, a dangerous drug, a combination of two or more of those

substances, or any other substance into the body"; or (2) had "an alcohol concentration of

0.08 or more." TEX. PENAL CODE ANN. § 49.01(2).

B. Analysis

        Appellant argues that without the retrograde extrapolation testimony, 4 the

evidence at trial was insufficient to prove intoxication. He complains that no breath or

blood test or field sobriety test was performed at the time of the accident. He contends

that the only evidence of his intoxication was the testimony that he smelled strongly of
        4 We note that in reviewing the sufficiency of the evidence, we must consider all of the evidence
before the jury, even erroneously admitted evidence. See Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim.
App. 2004). So under the law, we should consider the retrograde extrapolation testimony erroneously
admitted by the trial court in this case. However, for the sake of argument and because we ultimately
conclude that there is sufficient other evidence of intoxication, we will disregard the extrapolation testimony
as appellant has done.
                                                     14
alcohol and that he had blood shot eyes and that, in light of testimony by the same

witnesses that appellant was coherent and could respond to questions, this was not

enough.

       But as detailed above, there was ample other evidence of intoxication. Officer

Perez testified that appellant appeared "wasted," from which the jury could infer that

appellant was exhibiting signs beyond minor drunkenness. Beer cans were found on the

ground outside appellant's truck. Appellant admitted to Officer Perez and paramedics

that he had been drinking. And appellant refused a blood test at the hospital. See

Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (refusal to take breath test

is relevant evidence of intoxication). Finally, the evidence collected at the scene showed

a violent collision that Trooper Aguilar and a DPS accident reconstruction specialist

testified could be explained by intoxication. The car fluids and gouge marks in the

roadway, the catastrophic damage to the vehicles, and the absence of skid marks on the

road all pointed to a driver who veered into on-coming traffic and did not brake before the

collision.

       In his testimony, Officer Perez explained that no breath, blood, or field sobriety

tests were performed at the scene because the paramount concern after the accident

was treating the injuries suffered by those involved in the accident, including appellant.

For instance, Officer Perez testified that it appeared to him that appellant's leg was

injured, and as such, he did not make appellant stand to take field sobriety tests. In the

end, this matter, and whether appellant's apparent coherence after the accident

outweighed the odor of alcohol, were matters of weight and credibility that were within the


                                            15
province of the fact finder and the determination of which we will not disturb on appeal.

See Brooks, 323 S.W.3d at 899; Laster, 275 S.W.3d at 517.

       In sum, the physical evidence collected at the scene showing a powerful, violent

collision—combined with the evidence that appellant smelled of alcohol, admitted to

drinking before the accident, and that beer cans were found around appellant's truck at

the scene—would have allowed a rational fact-finder to conclude beyond a reasonable

doubt that appellant had lost normal use of his physical and mental faculties as a result of

alcohol. See Jackson, 443 U.S. at 319; see also TEX. PENAL CODE ANN. §§ 49.01(2),

49.08(a). We conclude that the evidence of appellant's intoxication was sufficient. His

final issue is overruled.

                                     V. Conclusion

       We affirm the judgment of the trial court.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

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

Delivered and filed the 6th
day of March, 2014.




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