Opinion
No. 08-16-00036-CR
08-23-2017
KEITH ALLEN MCWILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from 394th District Court of Brewster County, Texas (TC # 4409) OPINION
Keith Allen McWilliams was convicted of murder and sentenced to life in prison. On appeal, he complains that his trial counsel provided ineffective assistance by failing to: (1) object to improper questions; (2) use a cohesive defense strategy; and (3) retain an expert to testify on memory recovery. Finding that the difficult standard for proving ineffective assistance of counsel is not shown on this record, we affirm.
FACTUAL SUMMARY
The State indicted Appellant for intentionally and knowingly causing the death of twenty-eight year old Walter Cayce Sands III, to whom we refer by his nickname Trey. Trey's decomposed body was recovered under a pile of rocks in a remote arroyo near Terlingua.
Trey's friends last saw him packing for a hunting trip with Appellant on October 30, 2014. He never returned, but ten days later his duffel bag mysteriously reappeared at his apartment and his truck disappeared from the parking lot. Trey's friend spotted the truck at a house where Appellant was living at the time. Trey's friends and family filed a missing person's report. The Brewster County Sheriff Office and the Texas Rangers then began looking for Trey. Appellant was the immediate focus of their attention, and through the proceedings below, he offered at least three distinct versions of the events of October 30, 2014.
Story One: I Don't Know What Happened to Trey
When first asked by a sheriff's deputy on November 30th, Appellant said that he last saw Trey leaving the American Legion Hall near Terlingua on October 30th and had not seen him since. They had gone there to drink, but Trey left with a man named Charlie or some girl. Trey took his gun, a tote bag, and his dog and was headed south. When the deputy questioned Appellant, Trey's vehicle was still at Appellant's house. He told the deputy that he did not know how it got there. Appellant repeated this same story to Sheriff Ronnie Dodson and Texas Ranger Jeff Vajdos on December 2nd. They also found some of Trey's belongings in Appellant's garage on that visit.
Story Two: I Killed Trey in Self-Defense
On December 3, 2014, while sitting in Sheriff Dodson's office, and after claiming several times not to know anything about Trey's whereabouts, Appellant changed his story. He told the sheriff, and later Texas Ranger Vajdos, that he and Trey, along with Charlie, and a woman named Rhonda, left the American Legion Hall that night. They went to a remote property where Rhonda was living. Trey was "on something" and got into two fights with Charlie. After the first fight, Trey was cut-up and Appellant helped Rhonda close the wounds. A short time later, Trey and Charlie fought again. Appellant got between them. In the process, he was stabbed in the wrist with a knife that Trey was wielding. Trey then turned on Appellant and got him down on the ground. Trey was on top of Appellant choking or trying to stab him. Charlie tried to get Trey off by striking him with a piece of lumber. When that did not work, Charlie then retrieved Appellant's black powder pistol from Appellant's truck (begging the question of how Charlie knew the gun was located there), and handed it to Appellant (who was on the ground, with Trey on top of him). Appellant then claimed he shot Trey in the face in self-defense. Appellant, Charlie, and Rhonda took Trey's body to a remote spot and buried it the next day. Appellant also admitted to later taking Trey's truck (although he did not know why), and selling Trey's gun.
Following the taped interview laying out this story, Appellant showed authorities where the fight took place and where the body was located. He reenacted the events at the murder scene, which was video recorded. Additional statements made at his residence and a vehicle impound lot were also recorded. The self-defense version of Appellant's story unraveled, however, when a forensic examination of the body discovered that Trey was shot in the back of the head and not the face. The medical examiner also documented a stab wound to Trey's abdomen and blunt force trauma to his face with a rectangular object.
In an interview on December 5, 2014, Ranger Vajdos confronted Appellant with these discrepancies in the self-defense story. Appellant then claimed that he had Trey in a headlock, and likely did shoot him in the back of the head. When confronted with evidence that Trey had been pistol-whipped and zip-tied, Appellant first claimed that Charlie or Rhonda may have done that, but later said, "I probably did." After all was said and done, "we could not let him walk out of there."
The State would claim that this version of events also changed through its several iterations in the taped interviews. We find no reason to elaborate further on the discrepancies here.
Story Three: It Was An Accident
Appellant testified at trial. He claimed that he and Trey shared an interest in hunting and planned to go to Appellant's ranch on October 30th. They left in Appellant's truck and stopped at the American Legion Hall on the way. Both got intoxicated. They left the Legion Hall with Rhonda and Charlie and went to Rhonda's house. Appellant helped Rhonda fill her deer feeders and stuck his gun in his waistband in case they encountered rattlesnakes or other wildlife.
Once back at the house, Appellant made a comment that upset Trey. Trey then pulled his knife and stuck Appellant in the wrist. Appellant reacted by sticking Trey in the chest with a "mini-saw", described as a knife. After more words were exchanged, both calmed down. They continued to drink and smoked marijuana. Rhonda and Appellant started to prepare a meal when Charlie and Trey began fighting in an adjoining garage. They broke off the fight when Appellant came out to investigate, but by then Trey had additional cuts on his chest and lower abdomen. Rhonda closed the cuts with a medical stapler. They all settled down and ate a meal. But Charlie and Trey returned to the garage and started to fight again. Trey was on top of Charlie choking him; Appellant tried to get Trey off by hitting him in the head with his pistol butt. When that did not work, he put a sleeper hold on Trey and rolled him off Charlie. Appellant was then laying on the ground with Trey on top of him, with the two men facing each other. Charlie then got 2x4 piece of lumber and started striking Trey. Appellant claimed he pulled his gun to threaten Charlie to stop beating Trey. But when Charlie hit Trey in the face, the gun accidently discharged into the back of Trey's head. Following the shooting, Appellant drank heavily for several days such that his judgment was clouded when he gave the two earlier versions of the story to the authorities. After staying sober in jail for more than a year, his judgment and recollection of events was clear.
Neither Charlie nor Rhonda testified. Ranger Vajdos testified that Charlie admitted to hitting Trey with a 2x4 and that Trey was still breathing after being shot. Charlie then finished him off with the 2x4. The medical examiner testified that the shot to the head was a mortal wound from which Trey would have died in any event.
The jury had additional evidence bearing on guilt. Two area residents testified that following the murder, Appellant admitted to the crime. He told one not to worry about Trey anymore because Appellant had "put him in a hole." When another witness asked where Trey was, as he needed to talk to him, Appellant responded "the talking part was done, that he wasn't going to be talking to nobody else." The State also admitted DNA evidence that showed only Trey's blood at the murder scene, and only Trey's blood was found on Appellant's pistol.
The jury found Appellant guilty of murder and found that he used or exhibited a deadly weapon during the offense. Appellant was sentenced to life imprisonment and assessed the maximum possible fine.
ISSUES ON APPEAL
Appellant's brief as structured raises nine issues. In the first eight, the brief simply questions whether there were any errors in various aspects of the proceedings below, including the indictment, court rulings, jury selection, the jury charge, the sufficiency of the evidence to support the conviction, and length of sentence. At the conclusion of the discussion of each these points, the brief affirmatively states that there was no error. We conclude these "issues" are not "issues raised and necessary to final disposition of the appeal" as contemplated by TEX.R.APP.P. 47.1. Accordingly, we do not address them further. Alternatively, they are overruled based on the admission in Appellant's brief that none presents any matter requiring reversal.
In Issue Nine, however, Appellant claims reversible error based on ineffective assistance of counsel. He claims that trial counsel was ineffective in failing to: (1) object to improper questions by the State; (2) use a cohesive defense strategy; and (3) present a defense expert to support Appellant's claims that his memory had improved after he stopped drinking.
INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance of counsel, Appellant must establish by a preponderance of evidence that: (1) his attorney's performance was deficient; and that (2) his attorney's deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Appellant must satisfy both Strickland elements, and the failure to show either deficient performance or prejudice will defeat the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
Under the first prong of the Strickland test, Appellant must show the attorney's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Stated otherwise, he must show his counsel's actions do not meet the objective norms for professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Under the second prong, Appellant must establish that there is a reasonable probability that but for his attorney's deficient performance, the outcome of the case would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2069; Thompson, 9 S.W.3d at 812. "Reasonable probability" is that which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).
We presume that the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001), citing Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Ineffective assistance claims must be firmly founded in the record to overcome this presumption. Thompson, 9 S.W.3d at 813. Consequently, a direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped as to why trial counsel did what he or she did. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Thompson, 9 S.W.3d at 814 n.6. And when the record does not provide an explanation for the attorney's conduct, a defendant cannot overcome the strong presumption of reasonable assistance. Rylander, 101 S.W.3d at 110-11 (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective"); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003)("If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reason for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. . . . The trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them."). That leaves for direct appeals only those few situations where counsel's conduct is so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392. With these standards in mind, we take up each of Appellant's complaints about his trial counsel.
IMPROPER QUESTIONS
Appellant contends that his trial counsel failed to object to various improper questions, including those which: (a) were leading; (b) called for hearsay responses; (c) lacked a proper foundation, or called for speculation; (d) had the State's witnesses testify to the content of exhibits before they were admitted; and (e) allowed the State's witnesses to testify that Appellant, in his earlier statements, was lying, deceptive, or untruthful or had changed his story. We take each claim in turn.
Leading Questions
Appellant contends that trial counsel allowed the State's attorney to lead its witnesses throughout the trial. He provides citations to eighty-six leading questions for which trial counsel lodged no objection. We might agree that many of these questions were leading, and that the examples cited are not the full accounting of every leading question asked at trial. Nonetheless, Appellant has not met his burden under Strickland.
Appellant's counsel did object to leading questions four times during the trial. We also note that several of the leading questions of which Appellant now complains relate only to preliminary matters of a non-consequential nature.
"Leading questions are questions that suggest the desired answer, instruct the witness how to answer, or put words into the witness's mouth to be echoed back." Tinlin v. State, 983 S.W.2d 65, 70 (Tex.App.--Fort Worth 1998, pet. ref'd). Our evidence rules provide that "[l]eading questions should not be used on direct examination except as necessary to develop the witness's testimony." TEX.R.EVID. 611(c). Despite the general rule disfavoring leading questions on direct examination, "it is sound trial strategy for opposing counsel to choose not to object to leading questions when the evidence will come in anyway." Young v. State, 10 S.W.3d 705, 713 (Tex.App.--Texarkana 1999, pet. ref'd). When the record is silent concerning why defense counsel failed to object to the State's use of leading questions, a defendant fails to rebut the presumption that this conduct constitutes a reasonable trial strategy. See id.; Wert v. State, 383 S.W.3d 747, 757 (Tex.App.--Houston [14th Dist.] 2012, no pet.)("Appellant has not carried his burden of rebutting the presumption that counsel's [failure to object to leading questions] might be considered sound trial strategy. The record is silent as to why counsel did not make these objections, and we may not speculate on this issue."); Malone v. State, 935 S.W.2d 433, 440 (Tex.App.--Tyler 1996, no pet.)(holding that defendant failed to establish that defense counsel's failure to object to leading questions constituted ineffective assistance when he did "not explain how this omission hurt his case or fell below an objective standard of reasonableness").
Appellant does not discuss any specific leading question, nor suggest that a timely lodged objection would have prevented the information from coming in anyway. Nor does Appellant disprove that allowing some leading questions was simply a strategic decision of trial counsel. Accordingly, Appellant has not rebutted the trial strategy presumption. Wert, 383 S.W.3d at 757; Malone, 935 S.W.2d at 440; Ervine v. State, 08-00-00129-CR, 2002 WL 595044, at *4 (Tex.App.--El Paso Apr. 18, 2002, no pet.)(not designated for publication)(noting failure to overcome presumption for claims that trial counsel did not object to leading questions).
Hearsay Questions
Appellant next complains of ten questions calling for hearsay responses to which trial counsel did not object. After providing a record citation to the questions, however, the entire substance of Appellant's appellate argument is as follows: "Again, while not dispositive in the case, this lassitude of Defense Counsel's can hardly be justified." [sic]
We could easily dispose of this argument because it has been inadequately briefed. The argument section of an appellate brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record. TEX.R.APP.P. 38.1(i). When a party's argument consists only of conclusory statements without proper citation to appropriate authorities or lacks substantive analysis, the party has inadequately briefed the case and nothing is presented for review. Russeau v. State, 171 S.W.3d 871, 882 (Tex.Crim.App. 2005)(overruling appellant's issue where he provided no argument or legal authority to support his claim); Montoya v. State, No. 08-12-00305-CR, 2014 WL 1396707, at *1 (Tex.App.--El Paso Apr. 9, 2014, no pet.)(not designated for publication)(concluding that appellant failed to preserve issue for review due to inadequate briefing where he provided only conclusory statements with no substantial analysis); Esparza v. State, No. 08-12-00007-CR, 2014 WL 97301, at *6 (Tex.App.--El Paso Jan. 10, 2014, no pet.)(not designated for publication)(appellant's issue was inadequately briefed where he failed to cite any legal authority in support of his argument).
Nonetheless, we have reviewed the ten questions that Appellant cites and conclude that either the questions did not call for a hearsay response, or that if objected to, the State could have easily rephrased the question, or the answer simply repeats what was otherwise already developed in the record. In any event, Appellant has not overcome the presumption that trial counsel decided not to object for strategic reasons. See Thompson, 9 S.W.3d at 814 (holding presumption of strategy not rebutted when record was "silent as to why appellant's trial counsel failed to object to the State's persistent attempts to elicit inadmissible hearsay").
Speculation and Foundational Objections
Appellant also complains that his trial counsel failed to object to several questions that lacked a proper foundation, or called for speculation. In one exchange, for instance, a witness testified to a conversation he had with Appellant several days after the murder:
[PROSECUTOR]: What did he say?While the question "what did you think he meant by that" might be more properly worded as: "what did you take that to mean in the context of your conversation," the answer is harmless. A jury would have equally inferred the same conclusion from the actual statement about putting Trey in a "hole." Because Appellant was not going to contest killing Trey, his trial counsel may have deemed an objection unnecessary or counter-productive.
[WITNESS]: He said that I didn't have to worry about [Trey] anymore, that he had put him in a hole.
[PROSECUTOR]: What did you think he meant by that?
[WITNESS]: I knew exactly what he meant by it. I knew that he had killed him.
Equally unavailing is Appellant's complaint that a witness was allowed to testify to what a telephone record showed. Trey's family carried his phone on their bill, and his sister testified as to when Trey's outgoing calls stopped based on the telephone billing records. The gist of Appellant's argument is that the State laid no foundation for the authenticity of the phone records. The State did not admit the billing record; rather, Trey's sister only used the billing record to refresh her recollection as to when calls stopped coming from the number associated with Trey's phone. Setting aside whether a witness can authenticate his or her own phone bill, or whether the phone record could be used to refresh her recollection, we conclude that competent trial counsel could have strategically chosen to not object to the testimony. The only purpose of the testimony was to establish the date of death, a fact that was uncontested at trial. Needless objections over uncontested matters are more likely to annoy a jury than accomplish any useful purpose. Again, Appellant has failed to overcome the presumption of competence with regard to possible objections based on lack of foundation or speculation.
In this portion of his brief, Appellant also adds a one-sentence complaint that trial counsel did not object to testimony about an inscription made by Trey's sister in a Bible that she gave him. Appellant now claims this testimony was irrelevant and prejudicial. The State had the sister acknowledge the inscription to prove that the Bible, which was found in Appellant's garage, was in fact Trey's Bible. The fact that Appellant took (and sold) some of Trey possessions undermined Appellant's claim that he accidentally shot his good friend. Accordingly, the testimony had some relevance, and trial counsel may well have chosen to forego an objection to avoid calling additional attention to the evidence.
Use of Exhibits
Appellant makes two complaints about how counsel allowed the State to offer recorded statements he made to the authorities. First, he complains that trial counsel allowed the State's witnesses to summarize or testify to the contents of the recorded statements when the actual recordings were introduced into evidence. Next, he complains that the State's witnesses were allowed, without objection, to characterize his earlier statements as deceptive, or that Appellant lied. The statements were also referred to as a confession and the crime as a murder.
The manner of the presenting documentary evidence to a jury is left to the trial court's discretion. Wheatfall v. State, 882 S.W.2d 829, 838 (Tex.Crim.App. 1994). Simply because some witnesses were permitted to paraphrase what they heard in a recorded interview that was also played to the jury, does not equate to inadequate performance or prejudice. And while we generally agree that it is the province of a jury to decide if a witness is lying or that a statement is deceptive, that fact was uncontested in this case. During his own case in chief, Appellant admitted his earlier statements were not true:
[APPELLANT'S COUNSEL]: Now, Keith, you have told so many versions of this story that I have lost count. Would you agree with that?
[APPELLANT]: I can.He made essentially the same admission on cross-examination:
[PROSECUTOR]: So now you are telling us all that was a pack of lies?Appellant can hardly complain about other witnesses' characterization of his earlier statements, when he himself admitted to the same characterization. Nor can his counsel be faulted for not objecting to a characterization that Appellant would later use. Indeed, counsel could have feared that the jury might frown on a defense attorney who vigorously objects to something that his client later admits to be true.
[APPELLANT]: You are right.
[PROSECUTOR]: No; I am asking you --
[APPELLANT]: Yes.
[PROSECUTOR]: -- are you telling us now that all of that was a pack of lies?
[APPELLANT]: I don't know about a lie, but partial.
Appellant intermingles in this section of his brief a complaint about prosecutorial misconduct. When a witness could not identify Appellant at trial because his hair was no longer gray, the prosecutor stated that they must be getting "Grecian Formula in the jail." Defense counsel promptly objected and the objection was sustained, with the State's counsel being admonished for making a sidebar comment. Appellant now claims that his trial counsel should have urged a motion for mistrial, but nowhere does he offer authority that such a motion would have been granted.
LACK OF A DEFENSE STRATEGY
Appellant also complains that his trial counsel lacked a coherent defense strategy. As we understand the argument, Appellant does not complain about the actual strategy employed, but rather contends it was not consistently developed in voir dire, opening, and through the witness examinations.
In voir dire, Appellant's trial counsel focused on the burden of proof, presumption of innocence, and knowledge about the case and parties. Trial counsel also raised issues that he would later urge in closing: that memory can be fallible, alcohol affects memory and judgment, and the jury could consider the lesser-included offense of manslaughter. Trial counsel reserved his opening statement until after the State rested. Consistently during cross-examination of the investigating officers, trial counsel gained admissions that Appellant cooperated in the investigation. Trial counsel also obtained admissions from the medical examiner of those findings consistent with Appellant's version of events. In his opening statement, counsel acknowledged the tragedy. He did not foreshadow the new story that Appellant would advance at trial, but told the jury that they would soon "hear from the man that [they] want to hear from." In Appellant's direct examination, trial counsel developed the accidental shooting story, then attempted to blunt the two prior stories by developing Appellant's history of drinking and then abstinence just at the time he was first being interviewed. His closing argument re-urged the same theme, and asked the jury to hold the State to its burden of proof on the culpable mental state. Counsel argued that a reasonable doubt on the accidental shooting would require acquittal and at most, the jury could conclude Appellant's conduct was reckless, which would allow the jury to consider manslaughter.
A reviewing court may not assume a lack of sound trial strategy on the part of trial counsel merely because we are unable to discern a particular strategic or tactical purpose. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002)("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent. . . . [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.") Nor does a sound trial strategy imperfectly executed prove ineffective assistance of counsel. The Sixth Amendment does not entitle a defendant to errorless or perfect representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App. 2006). Defense counsel must play the cards that have been dealt and sometimes the hand is less than ideal. Here, Appellant's trial counsel had to deal with multiple prior conflicting statements. Trial counsel tried unsuccessfully to exclude the prior statements in a pre- trial motion to suppress. No claim is made that the trial court's ruling on that motion was in error, or that trial counsel mishandled the motion to suppress. The trial strategy he pursued then attempted to account for those prior statements and the State's physical evidence from the crime scene and medical examiner. Appellant has not met his burden to show that trial counsel execution of the chosen trial strategy meets either of the elements of the Strickland test.
FAILURE TO ENLIST AN EXPERT
Finally, Appellant contends that his trial counsel should have hired an expert to make the case that his memory of events improved over time as he stopped drinking. Appellant presented testimony that he drank heavily before and immediately following the murder, but stopped drinking about seventeen days before the first investigative interviews. He then stopped drinking altogether during his incarceration while awaiting trial. Trial counsel gained admissions from several law enforcement officers that some people with drinking problems who suddenly quit can become confused, behave oddly, have memory problems, or have problems putting details together. His claim on appeal is that counsel needed to have an expert expound on this claim.
We reject the argument because it finds no support in the record. First, we cannot discern from the record whether trial counsel did or did not seek expert assistance. Trial counsel sometimes seek off the record expert consultations, only to conclude that the expert would be of no assistance to the case. Second, Appellant has not demonstrated that if an expert were retained, the expert would have added anything not already of record. The failure to retain an expert is a subset of a counsel's duty to investigate the facts of a case. Yet a "failure to investigate" prejudices a defendant only if the reviewing court is provided the "evidence the jury did not hear due to trial counsel's failure to investigate." Perez v. State, 310 S.W.3d 890, 896 (Tex.Crim.App. 2010), quoting Butler v. State, 716 S.W.2d 48, 56 (Tex.Crim.App. 1986); see also Washington v. State, 417 S.W.3d 713, 725 (Tex.App.--Houston [14th Dist.] 2013, pet. ref'd)(no prejudice shown when appellant did not show what evidence a proper investigation would have revealed, nor what benefit could have been obtained from an expert); Brown v. State, 334 S.W.3d 789, 803 (Tex.App.--Tyler 2010, pet. ref'd)("[T]he failure to request the appointment of an expert witness is not ineffective assistance in the absence of a showing that the expert would have testified in a manner that benefitted the defendant."); Cate v. State, 124 S.W.3d 922, 927 (Tex.App.--Amarillo 2004, pet. ref'd)(same). Appellant has made no showing that any expert would have supported his contention any more so than the evidence already in the record. This failing undercuts any chance to meet his burden under both Strickland elements. We overrule Issue Nine and affirm the judgment of conviction below. August 23, 2017
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)