                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 GREGG GOMEZ A/K/A GREGORY                                        No. 08-06-00318-CR
 GOMEZ,                                           §
                                                                     Appeal from the
                   Appellant,                     §
                                                                   243rd District Court
 v.                                               §
                                                                of El Paso County, Texas
 THE STATE OF TEXAS,                              §
                                                                  (TC# 20040D04596)
                   Appellee.                      §

                                                  §

                                           OPINION

       Gregory Gomez appeals his conviction for burglary of a habitation. The trial court

assessed punishment at 10 years’ imprisonment, probated for 10 years’ community supervision.

Appellant raises eight issues on appeal challenging the trial court’s denial of his motion for new

trial, the denial of his motion to suppress, and arguing the evidence is legally insufficient to

support his conviction. We affirm.

       On August 20, 2004, Officer Daniel Davis responded to a fellow officer’s call for

assistance in Northeast El Paso. The officer who had called for assistance was engaged with two

individuals when Davis arrived. Officer Davis approached Appellant, and moved him away from

his companion and the other officer. The officer escorted Appellant to his patrol car, where

Davis verified Appellant’s identification and discovered a warrant had been issued for

Appellant’s arrest related to a burglary. Officer Davis then placed Appellant in custody and

transported him to the El Paso Police Department’s Northeast Regional Command Center.
         At the command center, Appellant was interviewed by Officer Joseph Guevara who was a

member of the department’s Northeast Tactical Unit. According to Officer Guevara’s testimony,

he received a call from his superior officer that a burglary suspect was in custody at

approximately midnight on August 21, 2004. When he arrived at the command center, Officer

Guevara met with Officer Davis who explained that he had arrested Appellant pursuant to a

warrant for burglary of a habitation at 3908 Quasar Court, in Northeast El Paso. According to

the burglary case file Officer Guevara reviewed, property stolen from the home on Quasar Court

had been recovered from an El Paso pawn shop, and records indicated Appellant pawned the

items.

         Officer Davis moved Appellant to the tactical office where Appellant meet with Officer

Guevara. According to Officer Guevara, Appellant was immediately advised of his rights and

the charges against him. After Officer Guevara confirmed that Appellant was able to read and

write, Appellant read and signed a Miranda warning card. According to the officer’s testimony,

Appellant told him about the Quasar Court burglary, and that the police had “tracked him down”

through the items he had pawned. Appellant offered the officer additional names of individuals

Appellant claimed were also involved in the burglaries and offered to show the police the

locations of additional robberies. Officer Guevara testified that when Appellant indicated he

could not remember the addresses of these additional houses, Appellant agreed to ride along with

Officer Guevara and Officer Davis and point out the houses where the other burglaries took

place.

         The two officers drove Appellant around Northeast El Paso where, according to Officer

Guevara, Appellant pointed out several locations where he stated he had been involved with


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burglaries or where he knew burglaries had taken place. After Appellant and the two officers

returned to the Regional Command Center, Officer Guevara generated a typed statement,

including all the information Appellant provided about the Quasar Court burglary, the other

burglaries he pointed out during the drive, and his associates. Officer Guevara testified that

Appellant read the statement, and then placed his handwritten initials at the beginning and end of

each paragraph. According to the statement as it was introduced into evidence at trial, Appellant

signed the Miranda card at 12:38 a.m., and the written statement, which Appellant initialed and

signed, was produced at 3:18 a.m. Officer Guevara testified that Appellant placed his signature

on the confession at approximately 4:40 a.m.

       Following Appellant’s confession, Officer Guevara attempted to locate an individual

Appellant had identified as “Sy Smith” who was also involved in the burglaries. When Officer

Guevara attempted to locate Mr. Smith, he discovered Appellant’s alleged accomplice was

stationed in Germany with the United States Army at the time Appellant claimed he was

involved in the burglaries. Officer Guevara also explained that following Appellant’s

confession, he was not able to locate a police report for any of the additional burglary sites

Appellant identified.

       Officer Guevara testified that Appellant was awake at all times during the interview, and

that after Appellant read the statement, he declined the opportunity to add or change anything of

the information.

       Appellant’s account of the events surrounding his confession differed significantly from

the officer’s. Appellant told the jury that once he arrived at the command center, he was placed

in a holding cell where he fell asleep until Officer Guevara woke him up and took him to an


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interview room. Appellant testified that it was Officer Guevara who asked him to help the

officers by identifying houses that had been burglarized and that it was the officer who suggested

they drive to the locations. Appellant explained that the officers told him that he was not in any

trouble, and that if he cooperated, he would be released to his father. Appellant stated that the

officer’s drove him around the North Hills area of El Paso, pointed out certain houses and asked

who had burglarized the home. When Appellant responded that he did not know about the

burglaries, he testified that the officers threatened to “call the judge and add time to [his]

sentence.” Appellant testified that he denied knowledge of any burglaries, including the Quasar

Court burglary, numerous times and the police continued to threaten him. Appellant testified that

the officers drove him around for three and a half hours.

       When they returned to the command center, Appellant testified Officer Guevara took him

to a “computer room” where Appellant was seated in a manner that did not allow him to see what

the officer was typing. Appellant remembered that Officer Guevara told him that if he complied

he would be released to his father. According to Appellant, as the officer typed the report, he

dozed and fell asleep. He only woke up when Officer Guevara asked him questions about his

education. Appellant denied confessing to any burglaries during that time.

       When the paperwork was finished, Appellant testified that Officer Guevara woke him up,

and instructed him to initial the document in numerous places. Appellant admitted that he

initialed and signed the document, but denied ever reading it. He testified that he complied with

Officer Guevara’s instructions to sign because the officer continued to assure him that he would

be released to his father when they were finished. Finally, Appellant testified that the Miranda

card was not given to him, and he did not sign it until after the officer took his statement.


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       Regarding the equalizer recovered from Atlas Pawn, Appellant testified that the device

did not come from the Quasar Court burglary, but that he purchased it himself, and was forced to

pawn it when his father forbid him from installing it in his mother’s car.

       Appellant was indicted for burglary of a habitation; specifically the home of Mr. William

Goode, the owner of 3908 Quasar Court, who was the complaining witness in this case.

Appellant was sentenced by the trial court to ten years’ imprisonment, probated for ten years’

community supervision. Appellant was also ordered to pay Mr. Goode $5,000 in restitution.

       Issues One, Three, Five, and Six deal with the admission of Appellant’s written

confession into evidence at trial. In Issue One, Appellant contends the trial court erred in

denying him an evidentiary hearing on his motion for new trial because the prosecution failed to

inform Appellant that their investigation had revealed that the accomplice Appellant identified in

his statement was stationed overseas with the Unites States miliary at the time Appellant alleged

he was involved in the burglaries. Appellant argues the prosecution violated the requirements of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose this

information before trial, as it established the falsity of Appellant’s confession to the Quasar Court

burglary.

       We review a trial court’s decision to grant a motion for new trial under an abuse of

discretion standard. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993); State v.

Ordonez, 156 S.W.3d 850, 851 (Tex.App--El Paso 2005, pet. ref’d). We will reverse only after

concluding the trial court’s action was arbitrary, and without reference to any guiding rules or

principles of law, resulting in a decision which clearly lies outside the zone of reasonable

disagreement. See Ordonez, 156 S.W.3d at 851.


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       A Brady violation occurs when the prosecution withholds exculpatory evidence which is

unknown to the defense during trial. See Hayes v. State, 85 S.W.3d 809, 814-15 (Tex.Crim.App.

2002). The Brady rule does not apply when the appellant is already aware of the allegedly

withheld information. Id. at 815, citing Havard v. State, 800 S.W.2d 195, 204 (Tex.Crim.App.

1989). When, as in this case, the appellant is aware of the existence and contents of the

challenged evidence because the confession was his own statement, the case does not fall within

the Brady rule. Hayes, 85 S.W.3d at 815. Because this case does not implicate the Brady rule,

the trial court did not abuse its discretion by denying Appellant’s motion for an evidentiary

hearing on that basis. Issue One is overruled.

       In Issue Six, Appellant argues that the State violated the Brady rule by failing to provide

Appellant with pretrial notice that Officer Guevara would testify that the other burglaries

identified in Appellant’s confession, may have occurred but were simply not reported to the

El Paso Police Department. Appellant contends the officer’s trial testimony was inconstant with

his suppression testimony, during which the officer stated that the extraneous burglaries were

“bogus” and did not exist. However, Appellant’s trial counsel failed to move for a continuance

based on the alleged Brady violation and therefore failed to preserve the issue for our review.

See Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999). Accordingly, we overrule Issue

Six.

       In Issue Three, Appellant argues that the prosecution’s reliance on his confession, despite

the State’s knowledge that much of the information was false, violated his right to due process.

Appellant basis his argument on the principle that a criminal defendant’s due process rights are

violated when the State allows false evidence to remain uncorrected in front of the jury. See Ex


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parte Castellano, 863 S.W.2d 476, 481 (Tex.Crim.App. 1993), citing Mooney v. Holohan, 294

U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935), and Alcorta v. Texas, 355 U.S. 28, 30-31,

78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1957).

       While Appellant’s general statement of the law is correct, the record in this case shows

that the jury was presented with extensive testimony from Officer Guevara during the State’s

presentation of evidence, on the inaccuracies contained in Appellant’s confession. During the

State’s direct-examination, Officer Guevara testified that he attempted to located Sy Smith, and

discovered that he was stationed in Germany with the United States Army at the time the Quasar

Court burglary occurred. Officer Guevara further testified that following Appellant’s confession,

he attempted to located police reports for the additional burglaries Appellant discussed and stated

that there were no such records on file with the police department. Defense counsel also

questioned Officer Guevara at length about the falsities in the confession, and again the officer

testified that much of the information in the statement was inaccurate. Based on the officer’s

testimony, the jury was fully informed as to the accuracy of the contents of Appellant’s

confession. Therefore, this case does not implicate the type of due process concerns addressed in

Mooney and its progeny. Accordingly, Issue Three is overruled.

       In Appellant’s fifth issue, he contends that he was deprived of his constitutional right to

effective assistance of counsel by his trial attorney’s failure to have his confession, “stricken

from the record’ after exculpatory evidence surfaced which established that the Quasar Court

burglary could not have occurred, as related by Appellant in his written confession.

       A claim of ineffective assistance of counsel consists of two components. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The appellant


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must establish both that his trial counsel performed deficiently, and that the deficiency caused

him prejudicial harm. Id. When evaluating trial counsel’s performance under the first prong, the

reviewing court must not second-guess legitimate strategic or tactical decisions made in the midst

of trial. Id. at 689, 104 S.Ct. 2065. Instead a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance must be indulged. Id. Absent a

record sufficient to demonstrate that counsel’s conduct was not the product of a strategic or

tactical decision, a reviewing court should presume that the attorney’s performance was

constitutionally adequate. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005).

Unless the challenged conduct was “‘so outrageous that no competent attorney would have

engaged in it’” the constitutional standard is not offended. Id.

       Any allegation of ineffectiveness must be firmly grounded in the record. Thompson v.

State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). It is the appellant’s burden to demonstrate both

deficient performance and prejudice, by a preponderance of the evidence. See Thompson, 9

S.W.3d at 813. The reviewing court must consider the totality of the representation and the

particularities of each case in evaluating effectiveness. Id.

       In this case, Appellant filed a motion for new trial but did not assert ineffective assistance

of counsel as a basis for the motion. There is no evidence in the record before us to rebut the

presumption that trial counsel acted within the range of effective assistance. Therefore, Issue

Five is overruled.

       Issues Four and Seven challenge the trial court’s denial of Appellant’s motion to suppress

his written confession. A trial court’s ruling on a motion to suppress is reviewed using a

bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 87-91 (Tex.Crim.App. 1997);


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Newbrough v. State, 225 S.W.3d 863, 866 (Tex.App.--El Paso 2007, no pet.). While we review

questions of law de novo, the trial judge’s determination on historical facts is given almost total

deference. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002), cert. denied, 537 U.S.

1051, 123 S.Ct. 603, 154 L.Ed.2d 527 (2002). In cases such as this one, where we do not have

the benefit of the trial court’s findings of fact, we will view the evidence in the light most

favorable to the trial court’s ruling. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.

2000).

         In Issue Four, Appellant asserts that his confession should have been suppressed based on

his showing that there was an unnecessary delay in taking him before a magistrate as required by

Articles 14.06 and 15.17 of the Texas Code of Criminal Procedure. Appellant argues that the

eight-hour delay before he was taken to a magistrate was unreasonable, and that there is “a causal

connection between this delay and the written confession he gave to Officer Guevara.”

         While there is no doubt that an a criminal suspect has a right to be taken before a

magistrate to be advised of his rights, “without unnecessary delay,” a failure will not invalidate

evidence gathered from the detention absent proof of a causal connection between the delay and

the gathering of the evidence. See Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App. 1992).

Here Appellant argues summarily that he can demonstrate that he gave a written statement which

contained multiple inaccuracies. Without citation to authority, Appellant concludes that the trial

court therefore erred in denying his motion to suppress. Without expressing an opinion as to

whether the eight-hour delay was in fact unreasonable in this case, we hold that Appellant has

failed to establish that the delay contributed to his confession. See Cantu, 842 S.W.2d at 680.

Accordingly, Issue Four is overruled.


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       In Issue Seven, Appellant asserts the trial court erred in finding his confession was

voluntary. He argues that Officer Guevara’s testimony that the extraneous burglaries described

in the confession were “bogus,” in addition to Appellant’s testimony that he was coerced into

signing the statement by police threats established that the statement was involuntarily made and

therefore, inadmissible.

       When reviewing the voluntariness of a confession, almost total deference must be given

to the trial court’s determination of historical facts in a suppression hearing. Ross, 32 S.W.3d at

856. The appellate court must also review the evidence in the light most favorable to the trial

court’s ruling, and cannot reverse that ruling absent a clear abuse of discretion. See Carmouche

v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). The trial court is the sole trier of fact in

a suppression hearing, and as such, it may choose to believe or disbelieve any part of a witness’s

testimony. Fineron v. State, 201 S.W.3d 361, 365 (Tex.App.--El Paso 2006, no pet.).

       Prior to trial, Appellant filed a motion to redact all references to the extraneous burglaries

from his written confession, arguing the confession was not made voluntarily. The trial court

denied Appellant’s motion and entered findings: (1) that Appellant gave a written and

incriminating statement to Officer Guevara; (2) that Appellant was warned of his Miranda rights

prior to making the statement; (3) that Appellant was no coerced into making the statement; (4)

that Appellant was not under the influence of drugs or alcohol at the time he made his statement;

(5) that Appellant’s decision to make the statement was not influenced by a failure to be brought

before a magistrate, “or by any other factor other than the desire to give the statements;”and (6)

that Appellant cooperated with law enforcement without coercion of any kind.

       Appellant argues there was evidence of “strong coercive influences (to include both


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threats and promises) made to induce Appellant to confess to crimes he did not commit.” The

only evidence in the record which indicates Appellant’s statement may have been coerced is

Appellant’s own testimony that the police promised he would be released to his father if he

cooperated, that if he did not admit to the extraneous burglaries they would see to it that years

were added to his sentence, that he was denied water and food, and that he was exhausted to the

point of falling asleep during Officer Guevara’s interview.

       The court also heard testimony from Officer Guevara that Appellant was advised of his

rights at the outset of the interview, and that Appellant offered to show the officers the sites of

other burglaries without any prompting. Officer Guevara stated that he did not witness Appellant

fall asleep during the interview, and denied that Appellant was offered any deferential treatment

for his cooperation. Appellant’s confession is initialed at the beginning of each paragraph

“GAG,” and states that he was informed of his rights by Officer Guevara prior to beginning the

statement.

       As the sole judge of witness credibility, the trial court was within its discretion to

disregard Appellant’s testimony. See Fineron, 201 S.W.3d at 365. The trial court’s findings are

supported by Officer Guevara’s testimony as well as the record of Appellant’s confession.

Therefore the trial court did not err by holding Appellant’s confession was voluntary. Issue

Seven is overruled.

       In Issue Eight, Appellant contends the trial court committed reversible error by admitting

State’s Exhibit Eleven, a computer printout of the “pawn database” entry made by Atlas Pawn for

the equalizer. Appellant argues the exhibit is inadmissible hearsay, and lacks the type of

indicators of reliability required for the document to fall within the “Document Affecting an


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Interest in Property” exception under Rule 803.

       We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). The trial

court abuses its discretion only when its ruling lies “outside the zone of reasonable

disagreement.” Apolinar, 155 S.W.3d at 186. Hearsay statements are generally not admissible

unless the statement falls within a recognized exception to the hearsay rule. Walters v. State, 247

S.W.3d 204, 217 (Tex.Crim.App. 2007). Texas Rules of Evidence 803 provides a list of

exceptions to the hearsay rule regardless of the availability of the declarant to testify. See

TEX .R.EVID . 803. Exception number fifteen under Rule 803 provides an exception for

“Statements in Documents Affecting an Interest in Property.” Paragraph fifteen states:

               A statement contained in a document purporting to establish or affect an
       interest in property if the matter stated was relevant to the purpose of the
       document, unless dealings with the property since the document was made have
       been inconsistent with the truth of the statement or the purport of the document.

TEX .R.EVID . 803(15).

       Exhibit Eleven was introduced through the testimony of El Paso Police Department

property disposition specialist Ida Silva. Ms. Silva testified that she was a member of the

department’s pawnshop unit, which is charged with monitoring pawnshops for stolen property.

According to her testimony, pawn shops have two options for reporting and tracking

merchandise; they can report electronically with the department’s database or they can use hard

copies which are only maintained for one year before they are destroyed.

       Atlas Pawn utilized both methods for recording its items. Ms. Silva was not able to

locate the hard copy of the pawn ticket for the equalizer as it had been destroyed in accordance



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with an El Paso records retention schedule. She was able to locate an electronic record of the

pawn from the police department’s pawnshop database. She testified that State’s Exhibit Eleven

was an electronic copy of the pawn ticket containing the information recorded by Atlas Pawn

when the equalizer was pawned. Pawn ticket number 10076 was located in the pawn shop

database based on the equalizer’s serial number, and shows the item was pawned at “Atlas” by

“Gregg A. Gomez” on June 4, 2004. Ms. Silva further testified the pawnshop is required to

record identifying information for any person who pawns or sells an item by statute in order to

verify the identity of people purporting to pawn their own property.

       Ms. Silva’s testimony provides an adequate foundation for the trial court to have

determined Exhibit Eleven was reliable. The document was not “created by Atlas Pawn for use

by the El Paso Police Department” as Appellant contends. The data was entered into the

computer system by the pawn shop in accordance with Texas law, and transferred to a police

database where it was retrieved by a police department employee. In addition, as Ms. Silva

explained, the document memorializes Appellant’s transferred whatever ownership right he had

in the equalizer to the pawn shop. As such, the trial court did not abuse its discretion by

determining the document fell within the exception presented by the State.

       In the alternative, if we were to conclude that the document did not fall within the hearsay

exception, Appellant’s issue must still be overruled as the error was harmless. Although

Appellant does not address the issue in his brief, evidentiary error does not constitute reversible

error absent harm to the defendant’s case. See TEX .R.APP.P. 44.2(b). That is, so long as the

record as a whole shows that the defendant’s substantial rights were not affected by the error, the

appellant is not entitled to reversal. See Ramon v. State, 159 S.W.3d 927, 931 (Tex.Crim.App.


                                                -13-
2004). In this case, the jury heard testimony during Appellant’s case in chief from Atlas Pawn

Manage Joe Rios, identifying the equalizer as the item sold to him at Atlas Pawn by Appellant.

In fact, Appellant himself admitted that he pawned the equalizer at Atlas Pawn. Because the

same information contained in Exhibit Eleven was also presented to the jury without objection,

any error was harmless. See Ramon, 159 S.W.3d at 931. Therefore Issue Eight is overruled.

       Finally, in Issue Two, Appellant asserts that the evidence is legally insufficient to sustain

his conviction for burglary of a habitation. In a legal sufficiency review we must consider all of

the evidence in a light most favorable to the verdict, and determine whether a reasonable minded

juror could have found the essential elements were proven beyond a reasonable doubt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We must give deference to “‘the responsibility

of the trier of fact to fairly resolve all conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Hooper, 214 S.W.3d at 13. The

reviewing court may not re-evaluate the weight and credibility of the evidence, nor may we

substitute our own judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2000). Any inconsistencies in the evidence are resolved in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

       A person commits a burglary of a habitation if, without the effective consent of the

owner, he enters a habitation with the intent to commit a felony, theft, or an assault; or remains

concealed in a habitation with the intent to commit a felony, theft, or an assault. TEX .PENAL

CODE ANN . § 30.02(a)(1), (2)(Vernon 2003). Appellant argues that several falsehoods contained

in his written confession, as well as the complaining witness’s inability to identify the pawned

equalizer through a serial number, left the jury without evidence from which they could


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reasonably conclude that Appellant was guilty. We disagree.

       Because the jury was permitted to consider Appellant’s confession in its entirety, we must

also take the entire statement into account in our legal sufficiency review. See Moff v. State, 131

S.W.3d 485, 488 (Tex.Crim.App. 2004). As the fact finder, the jury had the right to accept or

reject all or any part of Appellant’s statement in its role as the sole judge of witness credibility

and the weight to be given testimony. See Margraves v. State, 34 S.W.3d 912, 919

(Tex.Crim.App. 2000). Although there may have been inconsistencies in Appellant’s statement,

the jury could have reasonably concluded that Appellant admitted to the Quasar Court burglary

because he had taken part in the crime. In addition, when viewed in the light most favorable to

the verdict, the evidence related to the source of the equalizer could lead a reasonably minded

jury to conclude that Appellant was in possession of and pawed stolen property. As such, the

evidence was legally sufficient to support Appellant’s conviction for burglary of a habitation.

Issue Two is overruled.

       The judgment of the trial court is affirmed.


December 16, 2009
                                               DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ
Carr, J. (Not Participating)

(Do Not Publish)




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