Opinion
NO. 02-15-00161-CRNO. 02-15-00162-CR
07-21-2016
TONI JOE WHITEHEAD APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NOS. CR14-0702, CR14-0892 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In three points of error, Appellant Toni Joe Whitehead appeals his convictions for driving while intoxicated, enhanced by two prior convictions for driving while intoxicated, and possession of a controlled substance, methamphetamine, in an amount of less than one gram. See Tex. Penal Code Ann. § 49.04 (West Supp. 2015); Tex. Health & Safety Code Ann. § 481.115(b) (West 2010). We affirm.
Background
Around 4:30 in the afternoon on July 3, 2014, Trooper Travis Alewine, an officer with the Texas Department of Public Safety Highway Patrol, observed a pickup truck speeding over the posted speed limit of 35 miles per hour on Soda Springs Road in Parker County. He activated his patrol vehicle lights and initiated a traffic stop for speeding.
Trooper Alewine's radar recorded the pickup as traveling at approximately 68 miles per hour.
As Trooper Alewine approached the pickup, but before he had an opportunity to ask the driver for his name, driver's license, and proof of insurance, the driver—who Trooper Alewine identified as Appellant—said, "I was just kidding with you." At trial, Trooper Alewine characterized this extemporary statement as "odd." Trooper Alewine also described the difficulty he observed Appellant experience as he attempted to retrieve his driver's license from his wallet, stating, "He kept fumbling past [his driver's license] in his wallet. I could see it in there, but he kept going past it." In addition, Trooper Alewine noticed that Appellant's speech was slurred and that his eyes were watery and bloodshot, and he testified that he could smell the odor of alcohol on Appellant's breath.
In response to Trooper Alewine's inquiry as to where he had been, Appellant admitted that he was coming from a nearby bar and diner. And when asked if he had been drinking, Appellant responded, "not that much." While Appellant initially claimed that he had consumed only one beer, when he was later questioned, he admitted to consuming "two or three."
Trooper Alewine administered various field sobriety tests, including a Horizontal Gaze Nystagmus (HGN) test, the "walk-and-turn" test, the alphabet test, and the hand-clapping test. He did not administer the one-leg stand test because Appellant indicated at the outset that he did not think he could do it. Trooper Alewine testified that Appellant failed each of these tests.
Specifically, Trooper Alewine testified that Appellant exhibited six out of six possible clues of intoxication in the HGN test and four clues of intoxication in the walk-and-turn test. When asked to recite the alphabet, starting with F and ending with X, Appellant missed letters and stopped with a letter other than X. Finally, when asked to clap his hands thirteen times, Appellant clapped only eleven times and then stated that clapping his hands hurt.
Based upon Trooper Alewine's observations of Appellant at the scene and while administering the field tests—balance problems, difficulty in following simple instructions and performing simple tasks, the odor of alcohol, and bloodshot, glassy eyes—he determined that Appellant had lost the use of his normal physical and mental faculties and that he was intoxicated. According to Trooper Alewine, Appellant pleaded with the officer not to arrest him. Trooper Alewine testified that Appellant said, "I'm begging you," and that he attempted—unsuccessfully—to make an unspecified "deal" in order to avoid arrest. According to Trooper Alewine, the begging continued from the time Appellant was arrested until he had been transported to the Parker County jail, and in Trooper Alewine's opinion, Appellant's "repeated focus on the same thing over and over again" was further indication of his intoxication.
When they arrived at the jail, Appellant was asked whether he was carrying anything illegal, and, according to Trooper Alewine, Appellant "sighed real big and dropped his head down" and stated, "It's in my wallet." Trooper Alewine searched Appellant's wallet and found a small baggie containing a substance that later testing confirmed to be methamphetamine.
Trooper Alewine testified that he placed the small baggie into another small baggie, which he then heat-sealed and placed into a manila envelope, on which he wrote his initials and the date. He attached a submission form to the envelope and gave the envelope to another officer, Trooper Phillip McKenzie, who testified at trial that he mailed the envelope to a laboratory for testing.
Trooper Alewine provided Appellant with his DIC-24 warnings and requested a breath test. Appellant consented and the breath test results were 0.132 and 0.134.
The DIC-24 is the Texas Department of Public Safety's standard form containing the written warnings required by the transportation code to be read to an individual arrested for DWI before a peace officer requests a voluntary blood or breath sample from a person. See Tex. Transp. Code Ann. § 724.015 (West Supp. 2015); State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).
The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).
Appellant was charged with DWI and possession of a controlled substance, methamphetamine, in an amount less than one gram. See Tex. Penal Code Ann. § 49.04; Tex. Health & Safety Code Ann. § 481.115(b). Both indictments included three felony enhancements, alleging prior convictions for DWI in July 2010, arson in June 1991, and burglary in September 1988. The indictment for DWI also included allegations of prior convictions for DWI in November 1989 and April 1979, elevating the offense to a third-degree felony. Tex. Penal Code Ann. § 49.09(b)(2).
At the hearing on Appellant's motion to suppress the results of the HGN test, Trooper Alewine, who had been certified to administer the test since 2008, explained the procedure he used to perform the test. On cross-examination, Trooper Alewine was questioned extensively on the time it took him to administer the HGN test on Appellant. During this questioning, Appellant's counsel led the officer through each increment of the test, asking him to estimate the duration—measured in seconds—that it took to conduct each incremental step. After adding together these estimates, Appellant's counsel surmised that the test took 47.5 seconds to administer, pointing out to the trial court that the National Highway Traffic Safety Administration (NHTSA) manual provides that the test should take at least 108 seconds. Arguing that the best evidence of how long the test took would be the dashboard-camera video taken of the stop, the State offered and the trial court admitted the video into evidence. The video indicated that Trooper Alewine administered the test in approximately 73 seconds. While Appellant's counsel did not offer the NHTSA manual to support his argument, Trooper Alewine agreed with Appellant's counsel's contention that the HGN test was "supposed to take 108 seconds." Appellant's counsel urged the trial court to suppress the results of the HGN test as "invalidated" due to the test being improperly performed. The trial court denied Appellant's motion to suppress.
Initially, an edited version of the video was admitted as Exhibit 2. Later in the suppression hearing, the State offered and the court admitted Exhibit 2A, an unedited version of the video that was viewed by the trial court during the hearing.
The jury found Appellant guilty of DWI and possession of methamphetamine in an amount less than one gram. On the issue of punishment, the jury found that Appellant had committed at least two of the three convictions alleged as enhancements for each crime. Appellant was sentenced to 20 years' imprisonment for the drug possession charge and 80 years' imprisonment for the DWI.
Discussion
I. Admission of State's Exhibits 4, 4A, and 6
In his first point, Appellant argues that the trial court erred in overruling his objections to the admission of State's Exhibits 4, 4A, and 6. State's Exhibit 4A was a manila envelope containing State's Exhibit 4, a clear baggie containing the smaller clear baggie that contained methamphetamine. State's Exhibit 6 was a lab report identifying the substance in the baggie as methamphetamine. Appellant argues that these exhibits were inadmissible "because there was no showing on SX-4 that Alewine had signed the same as having seized the same thus calling into question the admissibility of SX-4, 4A and 6 as being the contraband forming the basis of the charge against Appellant for possession of a controlled substance."
State's Exhibit 6 was admitted into evidence at trial without objection. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). By failing to object to the admission of State's Exhibit 6, Appellant has failed to preserve any error related to its admission. See Tex. R. Evid. 103(a)(1); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Reyes v. State, 361 S.W.3d 222, 228-29 (Tex. App.—Fort Worth 2012, pet. ref'd). We therefore overrule Appellant's first point as it regards the admission of State's Exhibit 6.
In response to the State's offer of the three exhibits into evidence, Appellant's trial counsel stated, "And then with regard to 6—no objection to 6, Your Honor."
Likewise, Appellant failed to preserve for review his argument regarding the admissibility of State's Exhibit 4A. While Appellant did object at trial to the admission of this exhibit, he did so on the sole ground that it was hearsay, without any further explanation. On appeal, Appellant does not argue hearsay, but instead argues that State's Exhibit 4A is inadmissible because Trooper Alewine did not initial it. An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App.) (holding that appellant preserved "nothing for . . . review" where his trial objection did not comport with the issue raised on appeal), cert denied, 513 U.S. 861 (1994). We therefore also overrule Appellant's first point as it regards the admission of State's Exhibit 4A.
With regard to State's Exhibit 4, the baggie containing methamphetamine, we first note that Appellant's brief contains no authority to support the argument that this exhibit was inadmissible, but instead simply presents one paragraph of conclusory statements. It is not the reviewing court's responsibility or obligation "to construct and compose appellant's issues, facts, and arguments with appropriate citations to authorities and to the record," Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App.), cert. denied, 555 U.S. 1050 (2008), but, rather, it is Appellant's duty to provide legal authority to support his position. Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing cases), cert. denied, 132 S. Ct. 2712 (2012). The State also argues that Appellant has waived his objection to the admission of State's Exhibit 4 by failing to preserve the error at the trial court level.
The State argues that Appellant forfeited his objection by failing to object to any of the testimony by Troopers Alewine and McKenzie and the forensic lab analyst regarding the chain of custody of Exhibit 4 and the testing and analysis of Exhibit 4 to confirm that it contained methamphetamine. In so arguing, the State relies upon caselaw holding that objections to the admission of physical drug evidence were forfeited when the defendant did not object to the testimony by police officers to the manner in which they discovered the contraband. See Ratliff v. State, 320 S.W.3d 857, 861 (Tex. App.—Fort Worth 2010, pet. ref'd) (holding defendant failed to preserve his objection on the basis of the illegal seizure of evidence); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (holding defendant failed to preserve his objection to evidence obtained as a result of a warrantless search of his vehicle). In this case, although the basis of Appellant's objection is admittedly unclear, Appellant seems to focus on a failure to lay a proper foundation for the admission of the methamphetamine. Appellant argues that without evidence that Trooper Alewine placed his initials on the baggie containing the methamphetamine, there is no evidence linking the baggie discovered in Appellant's wallet to the baggie admitted at trial.
Nevertheless, after considering Appellant's argument, reviewing the record, and assuming, without holding, that Appellant preserved this argument, we conclude that the trial court did not err in admitting State's Exhibit 4. First, we can find no supporting authority for the proposition that the discovering officer must initial the baggie containing contraband for the drugs to be admissible in court. Second, the evidence before the court clearly established the chain of custody of State's Exhibit 4.
Trooper Alewine testified that after he found the small plastic baggie in Appellant's wallet upon their arrival at the jail, he placed the baggie into another small baggie and heat-sealed the second baggie. He then placed the baggie-within-a-baggie into a manila envelope, on which he affixed his initials, wrote the date, and attached a submission form. Trooper McKenzie testified that he mailed this envelope to an offsite laboratory for testing. Trooper McKenzie identified State's Exhibit 4A (the manila envelope) at trial as the envelope Trooper Alewine gave him, and he testified that he mailed it to the laboratory in Abilene for testing. Trooper McKenzie further testified that on the same day he testified at trial, he had driven to the lab in Abilene to pick up the drugs that he had mailed to them in this case.
At trial, Trooper McKenzie explained the general procedures that are used when officers discover contraband and need to deliver it to a laboratory for testing: "You're going to package it up in a sealed envelope with your initials on it." Then, he explained, officers keep the evidence that they collect locked in their own desks until it is time to send it to a lab for testing. At that point, the envelope containing the evidence is mailed via certified mail to the laboratory.
At trial, Trooper Alewine opened the envelope (State's Exhibit 4A), removed the baggie containing methamphetamine (State's Exhibit 4), and identified it as the baggie of contraband he had discovered in Appellant's wallet, packaged, and provided to Trooper McKenzie to send to the lab for analysis. Trooper Alewine testified that he not only recognized the manila envelope but that he also recognized the "dice pattern" printed on the baggie itself. Appellant did not object to any of this testimony.
We review the trial court's ruling on the admissibility of evidence for an abuse of discretion, and the ruling will be upheld as long as it is within the "zone of reasonable disagreement." Haliburton v. State, 80 S.W.3d 309, 314 (Tex. App.—Fort Worth 2002, no pet.). A proper chain of custody was shown by Trooper Alewine's testimony that he found the baggie of methamphetamine (State's Exhibit 4) in Appellant's wallet, sealed it in an envelope (State's Exhibit 4A), and wrote his initials on the sealed envelope. See, e.g., Elliott v. State, 450 S.W.2d 863, 864 (Tex. Crim. App. 1970) (holding proper chain of custody was proven by testimony of police officer that he obtained driver's license from defendant, placed it into an envelope, sealed the envelope, wrote identification information on the envelope, and placed it in the police property room); Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.—Corpus Christi 1993, pet. ref'd) ("A chain of custody is conclusively proven if an officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial."). In light of the testimony establishing the chain of custody, the fact that Trooper Alewine did not write his initials directly on the baggie containing the methamphetamine, or on the heat-sealed bag containing the smaller baggie, does not render either exhibit inadmissible. See, e.g., Elliott, 450 S.W.2d at 863; Alvarez, 857 S.W.2d at 147. We therefore hold that the trial court did not err in overruling Appellant's objection to the admission of State's Exhibit 4 and overrule the remainder of Appellant's first point.
Appellant does not raise any concern as to the chain of custody of Exhibit 4 after Trooper Alewine sealed it into an envelope (Exhibit 4A) and sent it to the forensic lab for analysis. We note that any such concern would go to the weight given the evidence, not to its admissibility. Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981).
II. Testimony of HGN testing conducted by Trooper Alewine
In his second point, Appellant argues that the trial court erred in denying his motion to suppress the results of the HGN test because the test was not properly administered.
Although Appellant's point of error references only the HGN test, he criticizes three other field sobriety tests conducted at the scene: the walk-and-turn test, the hand-clap test, and the alphabet test. Thus, it is not entirely clear if Appellant is attempting to appeal the admission of those test results. However, as these tests are not addressed in Appellant's statement of alleged errors, Appellant does not provide any record reference to where he presented an argument to the trial court about the admissibility of those tests, and at trial Appellant moved to suppress only the results of the HGN test, not of the other field sobriety tests, Appellant has forfeited any error relating to evidence of the other field sobriety tests. Tex. R. App. P. 33.1(a)(1); Douds, 472 S.W.3d at 674; Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref'd). Therefore, we decline to address the merits of any complaint Appellant makes in his brief regarding the admissibility of the other field sobriety tests. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).
When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).
We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
In Emerson v. State, the court of criminal appeals examined the underlying scientific theory of HGN testing and determined that the science is valid. 880 S.W.2d 759, 763 (Tex. Crim. App.), cert. denied, 513 U.S. 931 (1994). Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal, vertical, or rotary direction. Id. at 765. Horizontal gaze nystagmus refers to the inability of the eyes to smoothly follow an object moving horizontally across the field of vision, particularly when the object is held at an angle of forty-five degrees or more to the side. See Webster v. State, 26 S.W.3d 717, 719 n.1 (Tex. App.— Waco 2000, pet. ref'd). Consumption of alcohol exaggerates nystagmus to the degree that it can be observed by the naked eye. Emerson, 880 S.W.2d at 766. In determining whether a person's performance of the HGN test suggests intoxication, an officer must look for the following clues in each eye: (1) the lack of smooth pursuit, (2) distinct nystagmus at maximum deviation, and (3) the onset of nystagmus prior to 45 degrees. McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd).
The Emerson court also determined that the HGN testing technique in the NHTSA manual is valid. 880 S.W.2d at 768-69. The HGN technique is applied properly when the officer follows the standardized procedures outlined in the DWI Detection Manual published by NHTSA. Id. In his brief to this court, Appellant asserts that Trooper Alewine failed to perform the HGN test within the time frame "authorized for a valid test."
As a preliminary matter, Appellant fails to provide authority to guide us in determining how long the test should take. More importantly, however, Appellant's argument on appeal not only differs from the argument he made to the trial judge, it is now 180 degrees different from the position he urged at the trial court level. There, he complained that Trooper Alewine performed the test too quickly, first arguing that he took approximately 47.5 seconds and then arguing that he took 73 seconds, when, according to Appellant, the NHTSA manual stated that "it takes at least 108 seconds to properly do the test." Appellant now contends that Trooper Alewine performed the test too slowly, arguing that he exceeded the "certain amount of time that is suggested in the performance of this test, in seconds" because "Alewine took over a minute, more than is authorized for a valid test." Because Appellant provides no supporting authority for his position and because his complaint on appeal differs from his complaint made to the trial court, Appellant has failed to preserve any error with regard to the admissibility of the results of the HGN test. See Tex. R. App. P. 38.1(i) (providing that appellant's brief must contain "a clear and concise argument for the contentions made"); Pena, 285 S.W.3d at 464 ("Whether a party's particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial."). Accordingly, we overrule Appellant's second point.
Appellant argued at trial that the test should not exceed 108 seconds. The State has not disputed this assertion.
III. Admission of State's Exhibit 15
In his third point, Appellant argues that the trial court erred in allowing the admission of State's Exhibit 15, his purported driving history record, because there was insufficient evidence to show that Appellant is the same person referenced in the exhibit. As a result, he argues, both convictions should be reversed.
State's Exhibit 15 was offered to prove Appellant's prior convictions for DWI, arson, and burglary, which were alleged as felony enhancements in both causes. Appellant stipulated to the two prior DWI convictions that were alleged by the State as jurisdictional enhancements in the DWI case.
We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). If the trial court's decision falls outside the "zone of reasonable disagreement," it has abused its discretion. Rankin, 974 S.W.2d at 718; Montgomery, 810 S.W.2d at 391.
To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove these two elements. Id. Any type of evidence, documentary or testimonial, might suffice to prove this connection. Id. at 922. As the court of criminal appeals has explained, the proof that is adduced to establish this connection resembles a jigsaw puzzle—the trier of fact fits the pieces together, weighs the credibility of each piece, and determines if the pieces fit together sufficiently to complete the puzzle. Id. at 923 (citing Human v. State, 749 S.W.2d 832, 835-36 (Tex. Crim. App. 1988) (op. on reh'g)).
State's Exhibit 15 is a certified copy of Appellant's driving history issued by the Texas Department of Public Safety and was offered into evidence by the State at the beginning of the punishment phase. The first page of the document lists Appellant's name, address, date of birth, sex, eye color, and driver's license number. The date of birth and the driver's license number match the date of birth and driver's license number that Trooper Alewine testified he used to identify Appellant. The three-page document includes a certification by the "custodian of driver records of the Driver License Division, Texas Department of Public Safety" that:
The information contained herein is true and correct as taken from our official records. This is to certify that notices of convictions for the traffic law violations and incidents of motor vehicle accident involvement are received and recorded, along with the official action by the Department of Public Safety, in the computer records of TONI JOE WHITEHEAD.Additionally, the address on the driving history record matches the address that appears on the Appellant's fingerprint card admitted as part of State's Exhibit 11. This evidence is sufficient to link Appellant to the driving history record such that the trial court did not abuse its discretion in admitting the document into evidence. See, e.g., Nall v. State, No. 14-06-00345-CR, 2007 WL 2481171, at *7 (Tex. App.—Houston [14th Dist.] Sept. 4, 2007, pet. ref'd) (mem. op., not designated for publication) (holding certified copy of driving record was sufficiently linked to defendant where testimony established defendant's driver's license number and birthday matched those listed on driving record); Flores v. State, 139 S.W.3d 61, 64 (Tex. App.—Texarkana 2004, pet. ref'd) (holding evidence was sufficient to link defendant to prior conviction where it appeared in defendant's certified driver's license history and defendant's driver's license and address matched that on the driver's license history); Richardson v. State, No. 05-03-01104-CR, 2004 WL 292662, at *3 (Tex. App.—Dallas Feb. 17, 2004, no pet.) (not designated for publication) (holding evidence sufficient to link defendant to prior convictions when documents offered to prove convictions contained identifying information matching that of defendant); Branch v. State, 932 S.W.2d 577, 584 (Tex. App.—Tyler 1995, no pet.) (holding evidence sufficient to link defendant to driving history record and two prior judgments where arresting officer identified defendant, driver's license number, and date of birth and same information appeared on driving record).
Certified copies of the judgments for each conviction alleged in the indictments were also admitted into evidence. Appellant does not complain of the admission of those judgments into evidence or otherwise argue that he was not the subject of those judgments. --------
We overrule Appellant's third point.
Conclusion
Having overruled Appellant's three points of error, we affirm the judgment of the trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 21, 2016