                                 NOS. 12-12-00428-CR
                                      12-12-00429-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JARED TYRELL STINECIPHER,                       §      APPEAL FROM THE 7TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                           OPINION
       Jared Stinecipher appeals his convictions for accident involving personal injury or death
(cause number 12-12-00428-CR) and criminally negligent homicide (12-12-00429-CR). We
modify the judgment and affirm as modified in cause number 12-12-00428-CR. We affirm in
cause number 12-12-00429-CR.


                                         BACKGROUND
       A Smith County grand jury returned two indictments against Appellant for the offenses
of accident involving personal injury or death and criminally negligent homicide.            Both
indictments alleged the use of a deadly weapon, namely, a motor vehicle. Appellant pleaded
“guilty” to both offenses and “true” to the deadly weapon allegations without an agreement on
punishment. A presentence investigation report was prepared and a sentencing hearing was held.
The trial court found Appellant guilty of both offenses, found the deadly weapon allegations true,
and assessed punishment for each case at imprisonment for ten years and no fine. The sentences
were ordered to run concurrently. This appeal followed.
                                         DOUBLE JEOPARDY
       In his first issue, Appellant contends that his prosecution under both indictments resulted
in multiple punishments for the same offense under a double jeopardy analysis. The State
contends that Appellant failed to preserve this issue at the trial court level.
Preservation of Error
       Failure to present a timely and specific objection, request, or motion to the trial court for
a ruling results in waiver or forfeiture of the right to present the claim on appeal. See TEX. R.
APP. P. 33.1; Mendez v. State, 138 S.W.3d 334, 341-42 (Tex. Crim. App. 2004).                    The
requirement that complaints be raised in the trial court (1) ensures that the trial court will have an
opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-
consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to
respond to complaints; and (3) promotes the orderly and effective presentation of the case to the
trier of fact. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006).
       A defendant has the burden to “preserve, in some fashion” a double jeopardy objection at
the trial court level. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (en banc).
But a double jeopardy claim may be raised for the first time on appeal when (1) the double
jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of the
usual rules of procedural default serves no legitimate state interests. Garfias v. State, 424
S.W.3d 54, 58 (Tex. Crim. App. 2014) (citing Gonzalez, 8 S.W.3d at 643).
Applicable Law
       The Fifth Amendment’s Double Jeopardy Clause protects an accused against (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same offense. Ex parte Denton, 399
S.W.3d 540, 545 (Tex. Crim. App. 2013). A multiple punishments violation can arise in the
context of lesser included offenses and when the same conduct is punished under two distinct
statutes where the legislature intended for the conduct to be punished only once. Garfias, 424
S.W.3d at 58. Legislative intent can be ascertained by analyzing the elements of the offense in
question, or by identifying the “unit of prosecution” for the offenses. Id. When the offenses in
question come from different statutory sections, as they do in this case, the legislative intent can
be ascertained by analyzing the elements of the offenses in question. See id.




                                                   2
       There are three steps to an “elements” analysis in determining legislative intent in the
multiple punishments context.            Id. at 58-60.        First, the reviewing court must apply the
Blockburger test to determine whether each of the offenses requires proof of an element that the
other does not.1 Id. at 58. Second, the court must consider a list of factors set forth by the court
of criminal appeals in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999), to determine
whether two offenses are the same in the context of multiple punishments, i.e., whether the
legislature intended two punishments for the same conduct. See id. at 59; Bigon v. State, 252
S.W.3d 360, 371 (Tex. Crim. App. 2008). And third, the court should determine the “allowable
unit” of prosecution for the offenses in question. Garfias, 424 S.W.3d at 59. If, after conducting
an analysis of each of these factors, it appears that the legislature did not intend multiple
punishments, the reviewing court will consider whether enforcement of the usual rules of
procedural default serves any legitimate state interest. See Gonzalez, 8 S.W.3d at 643.
Discussion
       Appellant did not make a double jeopardy objection in the trial court. Therefore, we
must determine whether a double jeopardy violation is apparent on the face of the record. The
State contends that Appellant was convicted of two different offenses requiring different
elements of proof, and as a result, a double jeopardy violation is not clearly apparent on the face
of this record. We apply the Garfias elements analysis to determine whether the State is correct.
       The Blockburger Test
       The Blockburger test is used to determine whether each of the offenses with which the
accused is charged requires proof of an element that the other does not. Garfias, 424 S.W.3d at
58. Our focus is on the elements alleged in the indictments, and double jeopardy challenges may
be made “even against offenses that have different statutory elements, if the same facts required
to convict are alleged in the indictment[s].” Id. at 58-59.
       Here, the indictment in cause number 12-12-00428-CR (accident involving personal
injury or death) alleged that Appellant did then and there
                  intentionally or knowingly drive a vehicle that became involved in an accident
                  resulting in death to Arthur Dewayne Murphy, and the said defendant did
                  thereafter, knowing said accident had occurred, intentionally or knowingly fail
                  to render to Arthur Dewayne Murphy reasonable assistance when it was then
                  apparent that Arthur Dewayne Murphy was in need of medical treatment [and]

                  ...

       1
           Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).


                                                         3
               did then and there intentionally or knowingly drive a vehicle that became
               involved in an accident resulting in death to Arthur Dewayne Murphy, and the
               said defendant did thereafter, knowing said accident had occurred, intentionally
               or knowingly leave the scene of said accident, without giving his name, address,
               registration number of the vehicle the defendant was driving, or the name of the
               defendant’s motor vehicle liability insurer to any person, and without rendering
               reasonable assistance to Arthur Dewayne Murphy when it was then apparent
               that Arthur Dewayne Murphy was in need of medical treatment. . . .


The indictment in cause number 12-12-00429-CR (criminally negligent homicide) alleged that
Appellant did then and there


               by criminal negligence, cause the death of an individual, Arthur Dewayne
               Murphy, by operating a motor vehicle while disregarding a stop sign and failing
               to obey an official traffic control device. . . .


Both indictments alleged that Appellant used a motor vehicle as a deadly weapon during the
commission of or immediate flight from the offense.
       In cause number 12-12-00429-CR, the State was required to prove that Appellant
“operat[ed] a motor vehicle while disregarding a stop sign and failing to obey an official traffic
control device.” The State was not required to prove this element in cause number 12-12-00428-
CR. Instead, the State was required to prove that after knowing an accident had occurred,
Appellant “intentionally or knowingly fail[ed] to render . . . reasonable assistance [and left] the
scene of [the] accident, without giving his name, address, registration number of [his vehicle], or
the name of [his] insurer. . . .” The indictment in each cause number required proof of an
element that the other did not. See, e.g., Ex parte Pritzkau, 391 S.W.3d 185, 190 (Tex. App.—
Beaumont 2013, pet. ref’d) (prosecution for criminally negligent homicide not barred by double
jeopardy when defendant is convicted of underlying traffic offense). The offenses in the two
indictments are not the same under a strict application of the Blockburger test, which is one
indicator that the legislature intended to allow multiple punishments for accident involving
personal injury or death and criminally negligent homicide. See Bigon, 252 S.W.3d at 370.
       The Ervin Factors
       We now consider the Ervin factors, which include


               whether offenses are in the same statutory section; whether the offenses are
               phrased in the alternative; whether the offenses are named similarly; whether the



                                                      4
                  offenses have common punishment ranges; whether the offenses have a common
                  focus; whether the common focus tends to indicate a single instance of conduct;
                  whether the elements that differ between the two offenses can be considered the
                  same under an imputed theory of liability that would result in the offenses being
                  considered the same under Blockburger; and whether there is legislative history
                  containing an articulation of an intent to treat the offenses as the same or
                  different for double[] jeopardy purposes.


See Garfias, 424 S.W.3d at 59 (citing Bigon, 252 S.W.3d at 371; Ervin, 991 S.W.2d at 814).
The most significant factor in determining legislative intent is the focus or “gravamen” of the
offense. See Garfias, 424 S.W.3d at 61.
         Criminally negligent homicide is a result-oriented offense, with the gravamen of the
offense being an individual’s death. See TEX. PENAL CODE ANN. § 19.05(a) (West 2011) (“A
person commits an offense if he causes the death of an individual by criminal negligence.”)
(emphasis added); see also Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. [Panel Op.]
1981).2 However, the offense of accident involving personal injury or death is more akin to a
conduct-oriented offense because it requires an operator of a vehicle involved in an accident to
engage in certain conduct, and criminalizes his failure to do so. See TEX. TRANSP. CODE ANN.
§ 550.021(a), (c) (West Supp. 2013). The statute focuses on “the circumstances surrounding” an
individual’s conduct, with the gravamen of the offense being the individual’s culpable mental
state surrounding such circumstances, i.e., an operator’s knowledge of the accident and
knowledge of a victim’s suffering an injury become criminal upon the operator’s leaving the
scene of the accident. See Huffman v. State, 267 S.W.3d 902, 907-08 (Tex. Crim. App. 2008).
         The indictments in this case illustrate the distinction between the two gravamina.
Appellant’s criminally negligent homicide indictment focused on Murphy’s death, while the
accident involving personal injury or death indictment focused on Appellant’s leaving the scene
of the accident. This factor indicates that the legislature intended to allow multiple punishments
for the two offenses. See Garfias, 424 S.W.3d at 60-61.
         Other Ervin factors support the same conclusion. First, criminally negligent homicide
and accident involving personal injury or death are not included in the same statutory section or
even the same statutory code. Second, the offenses are not named similarly. And third, the


         2
          “The distinction to be drawn in determining if the homicide is criminal is not whether the act is intentional
or unintentional, but whether the act is voluntary or involuntary.” Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim.
App. [Panel Op.] 1981) (citations omitted). “A person may act unintentionally and still commit a criminal offense,
provided he acts with knowledge, recklessness[,] or negligence.” Id.


                                                          5
offenses have different punishment ranges. Compare TEX. PENAL CODE ANN. § 19.05(b) with
TEX. TRANSP. CODE ANN. § 550.021(c); see also Garfias, 424 S.W.3d at 61. Application of the
Ervin factors to this case indicates that the legislature intended multiple punishments for the
conduct involved.
         Allowable Unit of Prosecution
         The last factor we consider in our analysis is the “allowable unit of prosecution” for the
offenses, which determines if one course of conduct results in more than one offense. See id.
The allowable unit of prosecution for criminally negligent homicide is one offense per victim.
See Ex parte Amador, 326 S.W.3d 202, 220 (Tex. Crim. App. 2010) (citations omitted). The
allowable unit of prosecution for accident involving personal injury or death is “each victim,
each accident.” Huffman, 267 S.W.3d 908.
Conclusion
         The Blockburger test, the Ervin factors, and the allowable unit of prosecution for
accident involving personal injury or death and criminally negligent homicide indicate that the
legislature intended to allow multiple punishments. As a result, a double jeopardy violation is
not clearly apparent from the face of this record. See Garfias, 424 S.W.3d at 58; Gonzalez, 8
S.W.3d at 643. Appellant has not sustained his burden of presenting a record showing on its face
a multiple punishments violation. Id. at 642, 645. Accordingly, we overrule Appellant’s first
issue.


                                 TRIAL COURT ADMONISHMENTS
         In his second and third issues, Appellant contends that his guilty plea to the offense of
criminally negligent homicide (cause number 12-12-00429-CR) was involuntary because the trial
court admonished him on the incorrect range of punishment for the offenses. The State contends
that Appellant’s plea was voluntary because the trial court corrected its admonishments.
Standard of Review and Applicable Law
         When the voluntariness of a guilty plea is challenged on appeal, the reviewing court
should examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.
1998) (citations omitted).    A guilty plea is voluntary if the plea is the expression of the
defendant’s own free will, not induced by threats, misrepresentations, or improper promises.
State v. Guerrero, 400 S.W.3d 576, 587 (Tex. Crim. App. 2013).



                                                 6
       Before accepting a plea of guilty, the trial court must admonish the defendant of the
proper range of punishment associated with the offense to which he entered his plea. TEX. CODE
CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2013). If the record does not affirmatively show
an admonishment on the range of punishment, the guilty plea is invalid. Ex parte Gibautich,
688 S.W.2d 868, 871 (Tex. Crim. App. 1985) (en banc).
       When the record shows an incorrect admonishment regarding an offense’s range of
punishment, the courts may nevertheless find the guilty plea valid. See id. (“[W]hen the record
shows that the trial court gave an admonishment that was incomplete or incorrect, there is a
prima facie showing of a knowing and voluntary plea of guilty.”); Grays v. State, 888 S.W.2d
876, 878 (Tex. App.—Dallas 1994, no pet.) (defendant’s being incorrectly admonished about the
range of punishment “does not necessarily lead to the conclusion that the defendant was misled
or harmed [because the] defendant’s decision to plead guilty may not have been adversely
affected at all by the incorrect admonishment”). This is because a trial court’s “substantial
compliance” with Article 26.13 is sufficient unless the defendant was not aware of the
consequences of his plea and was misled or harmed by the trial court’s admonishment. TEX.
CODE CRIM. PROC. ANN. art. 26.13(c); Martinez, 981 S.W.2d at 197. Whether admonishments
substantially comply with the statute is an issue that should be considered when the trial court
has addressed the admonishment in some form or fashion. Id.
       If a trial court has substantially complied with the requirements of Article 26.13, the
defendant must show that, despite the trial court’s substantial compliance, “he entered the plea
without understanding the consequences of his action and thus was harmed.” Gibauitch, 688
S.W.2d at 871.
       Discussion
       On October 29, 2012, Appellant pleaded guilty to accident involving personal injury or
death (cause number 12-12-00428-CR) and criminally negligent homicide (cause number 12-12-
00429-CR). The trial court stated that the range of punishment for criminally negligent homicide
was “a state jail felony, which means the range of punishment is six months to two years in the
state jail and up to a $10,000 fine.” The indictments in each case alleged the use of a deadly
weapon to which Appellant pleaded true. The trial court found Appellant guilty and the deadly
weapon allegation true in both cases.




                                               7
         The trial court conducted a sentencing hearing on December 18, 2012. After the State’s
second witness testified, the prosecutor informed the trial court that he “just realized” the
punishment range for criminally negligent homicide would be treated as a third degree felony if
the court made a deadly weapon finding.3
         Appellant had already signed a document that stated the range of punishment was a fine
not to exceed $10,000 and confinement for not more than two years or less than 180 days. The
prosecutor corrected this document to show that the range of punishment for the offense was a
“state jail felony with a deadly weapon—no less than 2 years and no more than 10 years with a
fine not to exceed $10,000.” The trial court then explained to Appellant that the previous
admonishment was incorrect and that the correct punishment range for criminally negligent
homicide would be that of a third degree felony due to the deadly weapon finding. Thus, the trial
court explained that the punishment would be “similar to your other case, which is the two years
to ten years in the penitentiary and a fine of up to $10,000.” Appellant confirmed that he
understood the punishment range and initialed the changes made to the State’s
“Acknowledgment of Admonishments.” The trial court and Appellant then engaged in the
following discourse:


                  Court: And the State has offered [the Acknowledgement of Admonishments].
                  Your lawyer indicated that he has no objections to it under these circumstances,
                  which, the Court will admit it. However, I always try to go back, whenever
                  there’s been some type of punishment enhancement that maybe we didn’t
                  discuss at the time you entered your plea, to make sure that is what you wanted
                  to do now that there’s been a change. You’ve entered a plea of guilty and a plea
                  of true in this case. Do you still wish to stand on that plea of guilty and plea of
                  true that you made back in October?

                  Appellant: Yes, sir.

                  Court: All right. Because I’ll be happy, under these changes, since you didn’t
                  know about it back when you were doing it, then I will let you withdraw your
                  plea of guilty, proceed to trial on this charge, see what a jury would do, if that’s
                  what you want to do in this case.


         3
           See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2013) (“An individual adjudged guilty of a state
jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that . . . a deadly
weapon . . . was used or exhibited during the commission of the offense or during immediate flight following the
commission of the offense[.]”).

         The punishment range for a third degree felony is imprisonment in the Texas Department of Criminal
Justice for any term of not more than ten years or less than two years and a possible fine not to exceed $10,000.
TEX. PENAL CODE ANN. § 12.34 (West 2011).


                                                           8
              Appellant: No, sir.

              Court: You want to go forward as we’re doing today?

              Appellant: Yes, sir. I’m just ready to get it done with.

              Court: And you had a little bit of time to talk to Mr. Jarvis about that. Need any
              more time to visit with him on that issue before we move forward?

              Appellant: No, sir.

              Court: You’re sure this is what you wish to do?

              Appellant: Yes, sir.

              Court: All right. State’s 1 is admitted with these changes. And the record will
              reflect that we’ve now corrected the punishment range, not the offense. Offense
              doesn’t change, but the punishment range will be the same in both cases, that
              being a third[] degree felony level.


       Based upon our review of the record, we hold that the trial court’s improper
admonishments regarding the range of punishment in cause number 12-12-00429-CR did not
render Appellant’s guilty plea invalid. Once the error was recognized, the trial court halted the
proceedings, informed Appellant of the error, gave the correct range of punishment, and advised
Appellant that he had the option of withdrawing his guilty plea in light of the court’s previous
mistake. Appellant’s responses to the trial court’s inquiry indicate that Appellant’s decision to
maintain his plea of guilty and proceed with sentencing was voluntary and not induced by
threats, misrepresentations, or improper promises. See Guerrero, 400 S.W.3d at 587. The trial
court’s corrective measures in admonishing Appellant of the correct punishment range upon
learning of the mistake substantially complied with Article 26.13(a)(1) of the code of criminal
procedure. See Martinez, 981 S.W.2d at 197. Appellant has failed to show that his decision to
maintain his plea of guilty was made without understanding the consequences of his action, and
has also failed to show that he was harmed by maintaining his guilty plea in light of the trial
court’s corrected admonishments. See Gibauitch, 688 S.W.2d at 871. Accordingly, we overrule
Appellant’s second and third issues.


                                           ATTORNEY’S FEES
       In his fourth and fifth issues, Appellant contends that it was error for the trial court to
impose court costs not supported by legally sufficient evidence and by ordering that funds be
withdrawn from his inmate trust account.               Appellant’s specific challenge relates to the


                                                      9
assessment of attorney’s fees in cause number 12-12-00428-CR. Appellant contends that the
attorney’s fees should be deleted because he is indigent. The State agrees.
Standard of Review and Applicable Law
       The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (citations omitted). When the imposition of
court costs is challenged on appeal, we review the assessment of costs to determine if there is a
basis for the cost, not to determine if there is sufficient evidence offered at trial to prove each
cost. Id.
       A trial court has the authority to assess attorney’s fees against a criminal defendant who
received court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
2013). But once a criminal defendant has been determined to be indigent, he “is presumed to
remain indigent for the remainder of the proceedings unless a material change in his financial
circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013). Before
attorney’s fees may be imposed, the trial court must make a determination supported by some
factual basis in the record that the defendant has the financial resources to enable him to offset in
part or in whole the costs of the legal services provided. See Johnson v. State, 405 S.W.3d 350,
354 (Tex. App.—Tyler 2013, no pet.) (citations omitted). If the record does not show that the
defendant's financial circumstances materially changed, the evidence will be insufficient to
support the imposition of attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer
v. State, 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010); Johnson, 405 S.W.3d at 354.
Discussion
       The judgment of conviction in cause number 12-12-00428-CR assesses $602.00 as court
costs and contains a withdrawal order reflecting the same amount. The bill of costs includes the
assessment of attorney’s fees in the amount of $300.00.
       The record shows that the trial court twice determined that Appellant was indigent—by
appointing counsel to represent Appellant both before and after his guilty plea. The record does
not show that the trial court ever made any finding that Appellant’s financial circumstances had
materially changed. Thus, there is no basis in the record to support the imposition of attorney’s
fees as court costs. See Johnson, 423 S.W.3d at 390; Johnson, 405 S.W.3d at 355. We sustain
Appellant’s fourth and fifth issues.



                                                 10
                                                    DISPOSITION
         Having sustained Appellant’s fourth and fifth issues, we modify the trial court’s judgment
in cause number 12-12-00428-CR to reflect that the amount of court costs is $302.00. See TEX.
R. APP. P. 43.2(b). We also modify Attachment A in cause number 12-12-00428-CR to delete
the assessment of attorney’s fees and to state that the total amount of “court costs, fees and/or
fines and/or restitution” is $302.00. We affirm the judgment in cause number 12-12-00428-CR
as modified. See TEX. R. APP. P. 43.2(b). Having overruled Appellant’s first, second, and third
issues, we affirm the judgment of the trial court in cause number 12-12-00429-CR.

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered July 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




                                                          11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 23, 2014


                                          NO. 12-12-00428-CR


                                JARED TYRELL STINECIPHER,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0811-12)


                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $302.00; we also
modify Attachment A in cause number 12-12-00428-CR to delete the assessment of attorney’s
fees and to state that the total amount of “court costs, fees and/or fines and/or restitution” is
$302.00; and as modified, the trial court’s judgment is affirmed; and that this decision be
certified to the trial court below for observance.
                    Sam Griffith.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 23, 2014


                                         NO. 12-12-00429-CR


                               JARED TYRELL STINECIPHER,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                 Appeal from the 7th District Court
                        of Smith County, Texas (Tr.Ct.No. 007-0812-12)


                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be affirmed; and that this decision be certified to the trial court below
for observance.
                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
