                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00249-CR


SAMUEL JAMES GRAY                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1272861D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      A jury convicted Appellant Samuel James Gray of the offense of knowingly

causing serious bodily injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1),

(e) (West Supp. 2014). The trial court assessed his punishment at thirty years’

confinement and sentenced him accordingly. In three issues, Gray argues that


      1
       See Tex. R. App. P. 47.4.
the evidence is insufficient to support his conviction, that the trial court erred by

admitting his grand jury testimony into evidence, and that he received ineffective

assistance of counsel. We will affirm.

                            II. FACTUAL BACKGROUND

      In November 2010, Donovan2 was a twenty-two-month-old toddler living

with his mother, Marie, and his five-year-old sister in an apartment in Fort Worth.

Gray, Marie’s boyfriend, also lived in the apartment with the family. As Marie

worked during the day, she arranged for Gray to take care of Donovan and to

drive Donovan’s sister to and from school.

      On the morning of November 30, 2010, Marie went to work around 6:00

a.m. Around 10:30 a.m., Gray began calling Marie on her cell phone. She was

unable to answer the phone initially, but a few minutes after Gray began calling

her, Marie was able to get in touch with Gray. He told Marie that Donovan had

fallen down some stairs at the apartment complex and was in and out of

consciousness. Marie asked Gray if he had called 911, and Gray responded,

“[T]hey’re going to take me to jail.” Marie hung up the phone and called 911,

relaying the information that Gray had provided her. Shortly after Marie called




      2
        To protect the anonymity of the child in this case, we will use aliases to
refer to him and to his mother. See Tex. R. App. P. 9.10(a)(3); McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                         2
911, Gray made contact with a 911 operator.3 Gray explained to the operator

that the fall occurred when he opened the door to leave the second-floor

apartment and Donovan took off down the stairs, falling half-way down them.

      When paramedics arrived, they noticed Donovan lying on the couch inside

the apartment; he did not respond to any stimuli. Gray told the paramedics that

Donovan fell down the last four steps of the stairs leading up to the apartment.

He also told them that Donovan did not cry after the fall. Marshall Sharp, one of

the paramedics, testified that he was surprised that Donovan did not exhibit any

scratches or abrasions on his palms, noting that it is a natural reaction—even in

a child as young as Donovan—to put one’s arms out to stop a fall. Sharp was

concerned that Donovan was “posturing”—an involuntary movement of placing

the arms over the chest.     Sharp testified that posturing “is a classic sign of

increased pressure inside the brain.” Donovan was taken by ambulance to Cook

Children’s Hospital. On the transport to the hospital, Donovan began developing

a bruise on his forehead above his right eye.

      When Donovan arrived at the emergency room, he was unresponsive to

voice and touch. Kelly Ratcliff, a pediatric trauma nurse who treated Donovan,

noticed that he had bruising to his forehead and abrasions to his right scalp and

the back of his head.    He also had bruising to his chest, inner thighs, and


      3
      It is unclear from the record whether the 911 operator initiated the call to
Gray—Marie had given Gray’s cell phone number to the operator she spoke to—
or whether Gray initiated the call himself.


                                        3
buttocks. A CT scan revealed that Donovan had bleeding in his brain and that

the bleeding was causing displacement in his brain. Gray explained to Ratliff that

the injury occurred while he was walking with Donovan up the stairs to the

apartment and Donovan fell backwards, hitting his head on one of the stairs.

Gray told Ratliff that Donovan cried immediately after the fall. He said that he

then took Donovan into the apartment and fed him cereal and that Donovan lost

consciousness after eating the cereal.

      Dr. Richard Roberts, a pediatric neurosurgeon, examined Donovan to

determine the extent of his injuries and whether he needed surgery. Dr. Roberts

testified that Donovan had a subdural hematoma—a bleeding between one of the

coverings of the brain—as well as brain swelling. He also testified that Donovan

experienced a mid-line shift—a shifting of the brain to accommodate swelling

inside the brain. Dr. Roberts opined that the danger presented by a mid-line shift

is that the brain will swell to a point in which there is no room in the skull for the

swelling. The fear is that the swelling will cause the brain to get pushed over far

enough to apply pressure to the brain stem—the part of the brain that drives

respiration and heartrate. Dr. Roberts performed a craniotomy on Donovan—a

procedure where bone is removed from the skull—in order to evacuate the blood

from his brain to make room for the swelling. Dr. Roberts testified that Donovan

was at a substantial risk of death prior to the craniotomy.

      Subdural hematomas, according to Dr. Roberts, can be formed when there

is a great amount of acceleration within the brain followed by a sudden


                                          4
deceleration.   He testified that subdural hematomas are typically caused by

“high-energy” events, like a motor vehicle accident or a fall from a second-story

window. Dr. Roberts testified that he had never seen a fall down three steps lead

to a subdural hematoma. In his experience of treating children who fell down

steps, the children were typically treated for nonsurgical close-head wounds and

concussions.

      While noting that Donovan did not have a skull fracture—an injury common

when the head is struck against a hard surface—Dr. Roberts testified that

Donovan’s subdural hematoma could have been caused by his head being

struck against a hard or soft surface and that the bruising to his forehead was

consistent with that sort of contact. Dr. Roberts also opined that Donovan’s mid-

line shift was consistent with a high-energy impact or deceleration.

      Sergeant Amy Ladd, an officer who was in the Fort Worth Police

Department’s crimes against children unit during November 2010, was assigned

to investigate the circumstances surrounding Donovan’s injury. Sergeant Ladd

testified that on the day of Donovan’s injury she went to the apartment with a

search warrant. She noticed that the car that Gray and Marie shared was in the

complex’s parking lot, and she assumed that Gray was inside the apartment.

Sergeant Ladd testified that she spent ten to fifteen minutes trying to get Gray to

open the door before he finally let her inside.      While inside the apartment,

Sergeant Ladd noticed that there was feces on the floor and feces smeared

against the wall. There was also a pair of feces-stained underwear on the floor.


                                         5
Sergeant Ladd testified that this caught her attention because in “a lot of the

physical investigations that [they] do, [they] often find that the reason for the

injury came after a potty training incident.”4

       Gray briefly visited Marie and Donovan at the hospital, but he left soon

after arriving. Marie never saw Gray again. While she called Gray approximately

twenty times, he never took any of her phone calls. On February 24, 2011,

Sergeant Ladd prepared an arrest warrant for Gray. Gray was not arrested,

however, until nearly a year later because law enforcement was unable to locate

him.

       Following his arrest, Gray testified before a grand jury. He told the grand

jury that after he dropped Donovan’s sister off at school, he and Donovan

stopped at a grocery store to pick up some breakfast. He testified that as they

were walking up the stairs to the second-floor apartment, he had groceries in one

hand and was holding Donovan’s hand with the other. He stated that Donovan

got loose from his hand and then fell back and tumbled down “three or four

steps.” He testified that Donovan seemed fine immediately after the fall and that

he did not even cry.      The grand jury ultimately indicted Gray for knowingly

causing serious injury to Donovan by either shaking him with his hands or by

striking his head against a hard or soft surface.



       4
     Marie testified that both she and Gray had worked on potty training
Donovan.


                                           6
                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Gray argues that the evidence presented at trial was

insufficient to support his conviction for knowingly causing serious bodily injury to

a child. Namely, Gray contends that the State did not establish the manner and

means used by him to injure Donovan.5 Gray points to a statement made by the

prosecutor during closing that “[w]e’re never going to have the exact manner and

means if the defendant isn’t going to tell us specifically.”

                              A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact 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; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

      5
       Gray clarifies in his reply brief that he challenges sufficiency to prove any
criminal conduct.


                                           7
may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

       The sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case. Byrd v.

State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); 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 restrict the

State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246; Malik, 953 S.W.2d at

240.   A hypothetically correct jury charge for the present offense of assault

causing serious bodily injury to a child would ask whether Gray knowingly caused

serious bodily injury to Donovan. See Tex. Penal Code Ann. § 22.04(a); Thomas

v. State, 303 S.W.3d 331, 333 (Tex. App.—El Paso 2009, no pet.).

       Several courts have held that the manner and means of the injury alleged

is not an essential element of an assaultive offense and therefore is not included


                                        8
in the hypothetically correct jury charge. Thomas, 303 S.W.3d at 333; Rodriguez

v. State, 274 S.W.3d 760, 767 (Tex. App.—San Antonio 2008, no pet.); Phelps v.

State, 999 S.W.2d 512, 516 (Tex. App.—Eastland 1999, pet. ref’d); see also

Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007) (holding that injury

to a child is a “result of conduct” offense).6 A variance between the manner and

means alleged and the actual manner and means used does not preclude a

conviction. Thomas, 303 S.W.3d at 333. Even though the State may include the

manner and means in the indictment, it will be disregarded in a hypothetically

correct jury charge. See Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim.

App. 2012) (holding variance immaterial in aggravated assault case when

indictment alleged that the defendant hit the victim and twisted her arm “with his

hand” and evidence showed that the defendant threw the victim against a wall);

Thomas, 303 S.W.3d at 333 (holding that variance in the manner and means

alleged—striking the victim with the defendant’s hand—and the actual manner

and means used—pushing the victim—was immaterial); Botello v. State, No.

08-04-00127-CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso Aug. 25,

2005, pet. ref’d) (not designated for publication) (holding that variance in the

manner and means alleged—striking the victim’s head against a door frame—

and the actual manner and means used—pushing the victim—was immaterial);

      6
       We note that this court made the same holding in an unpublished opinion.
See Fritzching v. State, No. 02-10-00431-CR, 2012 WL 1222033, at *4 (Tex.
App.—Fort Worth Apr. 12, 2012, pet. ref’d) (mem. op., not designated for
publication).


                                        9
Phelps, 999 S.W.2d at 518 (holding that the fact that the State did not present

evidence of the manner and means alleged—striking the victim in the head with

the defendant’s hand—was immaterial where the hypothetically correct jury

charge would not have included the descriptive phrase “with his hand”).

         B. The Evidence is Sufficient to Support Gray’s Conviction

      Here, there was evidence that Gray struck Donovan’s head against a hard

or soft surface.     Dr. Roberts testified that Donovan’s injuries—a subdural

hematoma and a mid-line shift—were consistent with his head being struck

against a surface.    The fact that Donovan was developing a bruise on his

forehead on the way to the hospital is further evidence that his head was struck

against a surface.

      The jury could have found that Gray’s constantly changing story as to how

Donovan was injured was evidence of his consciousness of guilt. See King v.

State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (noting that making false

statements to cover up a crime is evidence indicating a consciousness of guilt

and is admissible to prove the commission of the offense); Couchman v. State, 3

S.W.3d 155, 164–65 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding that

defendant’s changing story was evidence of consciousness of guilt); Comeaux v.

State, 413 S.W.3d 176, 187 (Tex. App.—Beaumont 2013) (holding that the jury is

allowed to infer a consciousness of guilt when the defendant lies to the police),

aff’d, 445 S.W.3d 745 (Tex. Crim. App. 2014). Moreover, the essential aspect of

Gray’s version of what happened—that Donovan fell down three or four stairs—is


                                       10
not supported by the evidence. Dr. Roberts testified that he had never seen a

case in which a child’s fall down three steps caused a subdural hematoma.

      Gray devotes much attention in his brief to discussing Castillo v. State, 7

S.W.3d 253 (Tex. App.—Austin 1999, pet. ref’d), a case that Gray says is “very

similar” to his own. In Castillo, the defendant was indicted for intentionally and

knowingly causing serious bodily injury to a child.          7 S.W.3d at 254.    The

indictment specifically alleged that the defendant either struck the child with his

hands or struck the child’s head against a wall or a floor.        Id. at 255.   The

evidence at trial, however, demonstrated that the victim’s injuries were

characteristic of a child who had been “shaken back and forth at a very rapid rate

of speed.” Id. at 256. Notably, the child did not have any evidence of skin

bruising or swelling but only injuries consistent with a deceleration-type injury. Id.

The State’s doctor testified that the child’s “injuries were totally consistent with a

shaking-type injury and found no evidence that his head actually hit an object.”

Id. The court of appeals reversed the defendant’s conviction and ordered an

acquittal, holding that the evidence was legally insufficient to support a conviction

for “recklessly injuring a child by striking.” Id. at 262.

      As a preliminary matter, we note that Castillo is distinguishable from the

facts presented in this case. Here, Gray was indicted for both shaking Donovan

with his hands and for striking Donovan’s head against a hard or soft surface.

Unlike the child in Castillo, here, there was evidence that Donovan’s injuries were

caused by his head being struck against a hard or soft surface. Moreover, as


                                           11
noted above, a variance between the manner and means alleged and the actual

manner and means used does not preclude a conviction. Thomas, 303 S.W.3d

at 333; see Johnson, 364 S.W.3d at 298. To the extent that Castillo can be read

to suggest otherwise, we decline to follow it.

      Considering the evidence in the light most favorable to the jury’s verdict,

we hold that a rational trier of fact could have found beyond a reasonable doubt

that Gray knowingly caused serious bodily injury to Donovan. We thus overrule

Gray’s first issue.

                 IV. ADMISSION OF GRAY’S GRAND JURY TESTIMONY

      In his second issue, Gray argues that the trial court erred by admitting into

evidence his grand jury testimony.      Gray contends that he was not properly

admonished prior to testifying before the grand jury and that he “was promised by

the State that nothing would be used against him.” Gray points to the following

statement made by the prosecutor before Gray testified before the grand jury:

“There’s just two things that you need to know about the oath that she just read

to you. One is that you have to tell the truth because you’re under oath. And

secondly is that everything that goes on in here is secret.        Okay?”7    Gray


      7
      We note that immediately after making this statement to Gray, the
prosecutor went on to tell him:

      Your testimony before this grand jury is under oath. Any material
      question that is answered falsely before this grand jury subjects you
      to being prosecuted for aggravated perjury. You have the right to
      refuse to make answers to any question the answer to which would
      incriminate you in any manner. You have the right to have a lawyer

                                         12
contends that because the prosecutor said that everything was a “secret,” it left

the impression upon him that the State would not use his testimony against him

at a later date and would not pursue charges against him.

      At his trial, the State introduced Gray’s grand jury testimony into evidence.

Gray’s attorney made the following objection to the introduction of Gray’s grand

jury testimony, “Judge, I would like to object to this coming in because he has the

right not to testify. He has not testified. And there is another way of getting

sworn testimony in.”    The trial court overruled that objection, allowing Gray’s

grand jury testimony to come into evidence.

      The complaint made on appeal must comport with the complaint made in

the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009) (“A complaint will not be preserved if the legal basis of the complaint raised

on appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d

459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is

preserved depends on whether the complaint on appeal comports with the

complaint made at trial.”).    To determine whether the complaint on appeal

comports with that made at trial, we consider the context in which the complaint

was made and the parties’ shared understanding at that time. Clark, 365 S.W.3d




      present outside this chamber to advise [you] before making answers
      to questions you feel might incriminate you. Any testimony you give
      may be used against you at any subsequent proceeding.

                                        13
at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena,

285 S.W.3d at 464.

      We hold that Gray did not preserve the argument he now makes on

appeal—that he was not properly admonished prior to his grand jury testimony,

so it was inadmissible—when his grand jury testimony was introduced at trial.

While Gray’s attorney objected to the introduction of his grand jury testimony, the

objection made at trial does not comport with the objection now made on appeal.

See, e.g., Lovill, 319 S.W.3d at 691–92 (requiring legal basis of complaint at trial

to be the same as that raised on appeal). We thus overrule Gray’s second issue.

                     V. INEFFECTIVE ASSISTANCE OF COUNSEL

      In his third issue, Gray argues that he received ineffective assistance of

counsel.

                             A. Standard of Review

      To establish ineffective assistance of counsel, Gray must show by a

preponderance of the evidence that his counsel’s representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,

307 (Tex. Crim. App. 2013).      An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).




                                        14
      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14.      In evaluating the effectiveness of counsel under the

deficient-performance prong, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d

at 307–08.

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain [her] actions before being

denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel’s performance was

deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Nava, 415 S.W.3d at 308.

          B. The Record is Insufficient to Establish Ineffectiveness


                                        15
      Here, Gray alleges that he received ineffective assistance of counsel when

his attorney did not object to certain statements made during voir dire concerning

the definition of the term “knowingly.”      Specifically, Gray complains that his

attorney should have objected when the prosecutor made the following

statements:

      A person knows what he is doing can reasonably result in serious
      bodily injury. Not that the injury will happen or that they knew it
      would happen, but that they knew an injury could reasonably result
      from that.

      ....

      So say that someone else punches someone in the jaw, and they
      don’t mean to break their jaw, they just want to hurt them, but then
      their jaw is broken. Do you think that punching someone in the face,
      do you think that that’s something that could reasonably result from
      that is a broken jaw?

      ....

      So intentionally is the example I gave that if a person walks up to
      another person and shoots that person in the head, it can easily be
      inferred that their intent was to kill that person. As opposed to
      knowingly, maybe you hit someone in the face and your intent is to
      just hurt that person, just cause bodily injury, but you hit them so
      hard that you actually break their jaw. Even though you didn’t intend
      to break their jaw, you knew that if you hit someone like that, that it
      could break their jaw. Do you see the difference?

      ....

      Knowingly is a person has an action and the action they committed
      maybe that’s not necessarily what they intended to cause, but it
      could be reasonably inferred that it could be caused by that.

      ....




                                        16
      [T]he difference with knowingly [versus intentionally] is that you
      should know by your conduct that your conduct could result in this
      injury.”

      Gray also complains that his attorney should have objected when the trial

court made the following statement in front of a prospective juror, “[T]o take [the

prosecutor’s] example of punching somebody in the jaw. Okay? If you believe

that somebody punched somebody in the jaw, do you reasonably believe that

that could have caused the result?”

      Gray contends that these statements lowered the State’s burden of proof.

The State counters that the prosecutor gave the correct definition of “knowingly”

during voir dire, that there is no tangible difference between the explanations of

the term “knowingly” given during voir dire and the definition found in the penal

code, and that there is no record to substantiate Gray’s claim that his attorney

employed an unprofessional strategy.8

      We agree with the State. Although Gray filed a motion for new trial, he did

not complain of ineffective assistance in his motion, and no hearing was held on

the motion. Thus, the record is silent as to Gray’s attorney’s trial strategy in

failing to object to the statements made by the prosecutor and the judge during

voir dire. Generally, a silent record that provides no explanation for counsel’s

actions will not overcome the strong presumption of reasonable assistance. See


      8
        “A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause the
result.” Tex. Penal Code Ann. § 6.03(b) (West 2011).


                                        17
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v.

State, 280 S.W.3d 441, 445 (Tex. App.—Fort Worth 2009, pet. ref’d). As noted

above, trial counsel “should ordinarily be afforded an opportunity to explain [her]

actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593.

      Based on the record before us, in light of the strong presumption of

reasonable professional assistance by defense counsel, and in the absence of

any opportunity for defense counsel to explain her strategy for not objecting to

these statements, we cannot say that Gray has met his burden of showing by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813;

Edwards, 280 S.W.3d at 445. Because Gray has not satisfied the deficient-

performance prong of Strickland, we overrule his third issue.

                                 VI. CONCLUSION

      Having overruled Gray’s three issues, we affirm the trial court’s judgment.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 15, 2015




                                        18
