Michael J. Holmes v. State ( 2017 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MICHAEL J. HOLMES, No. 08-16-00150-CR
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Appellant, Appeal from
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v. Criminal District Court No. 2
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC # 1395500D)
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OPINION
The State indicted Michael J. Holmes for possession of more than one but less than four
grams of methamphetamine with intent to deliver. After a jury returned a guilty verdict, the trial
judge sentenced him to ten years’ confinement. On appeal, he challenges (1) the trial court’s denial
of a motion to suppress, (2) references before the jury that he told the police they did not have
permission to search his vehicle, (3) the denial of a jury instruction, and (4) the imposition of
certain court costs. For the reasons that follow, we affirm.
MOTION TO SUPPRESS
A specialized narcotics unit arrested Appellant after they discovered methamphetamine in
his vehicle following an alert by a drug-sniffing dog. He filed a pretrial motion to suppress any
evidence collected in the search of his vehicle. The motion alleged that the police lacked a warrant,
probable cause, or reasonable suspicion to detain him. The circumstances surrounding the search
are at the core of this case. Testimony from the motion to suppress hearing sharply conflicted.
We recount the State’s version first.
The State’s Claim
On the evening of December 9, 2014, Officers Michael Putnam and Cole Dickerson were
working with the “Zero Tolerance” unit of the Fort Worth Police Department.1 The unit patrols
“high crime” areas, defined to mean those with a high incidence of assaults, robberies, burglaries,
and narcotics activity. One such area is a strip center that contained the “Vapor City” game room.
The game room had several slot machines and was the subject of a separate investigation (and
sometime subsequent to the arrest here, the City shut it down). A liquor store occupied the only
other space in the strip center and was adjacent to the game room. The police had noticed “a lot”
of narcotics violations in the strip center parking lot, as well as stolen vehicles, and persons with
felony warrants. At the suppression hearing, the State admitted into evidence crime reports
generally supporting its characterization of the strip center as a high crime area.
Officers Putnam and Dickerson arrived at the parking lot around ten o’clock that night in
an unmarked vehicle. Both officers were dressed in black uniforms with the word “police” in
yellow lettering on both the front and back of their vests. Putnam recalled that the lot was
completely dark. Several cars were parked in front of the game room and a single pickup truck
was on the other side of the parking lot, in front of the liquor store. The liquor store was closed at
that hour. Officer Putnam was initially suspicious of the vehicle for two reasons: from experience,
he knew that drugs were sold at that location from vehicles parked away from the game room’s
front door, and second, a vehicle parked in front of the closed liquor store might be that of a
1
This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket
equalization efforts. See TEX.GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedents of that court to the
extent they might conflict with our own. See TEX.R.APP.P. 41.3.
2
burglar.2
Both officers testified that they parked several spaces away and approached the pickup on
foot to make a “consensual encounter” with the driver, later identified as Appellant, who was
seated in the pickup’s driver’s side seat. A female passenger was in the front passenger seat at the
time. As they approached the vehicle, Officer Dickerson told Putnam that he saw the female reach
down as if she were putting something in between the seats. Officer Putnam tapped on the driver’s
side window and identified himself as a police officer. Appellant first cracked the door to speak
with Putnam. Officer Putnam started the conversation by generally asking questions like “how
are you doing,” and “what are you doing here” and “what is your name.” Officer Putnam did not
recall Appellant’s exact response, other than it was not a “straightforward answer.” Officer
Dickerson at the time was separately talking with the female occupant.
At that point, Officer Putnam believed he had a reasonable suspicion to continue his
interaction with Appellant based on: (1) his being in a high crime area and location known for
narcotics; (2) it was late at night; (3) Appellant parked in front of a closed business; and (4) his
passenger’s furtive movement as witnessed by Officer Dickerson.
Officer Putnam then asked Appellant to step out of the truck to talk with him, at which
point, Appellant exited the truck, immediately closed the door, and told Putnam “I do not consent
to any searches.” Putnam replied that he had not requested to search the pickup, but asked if there
was anything he needed to be aware of. Appellant responded no. The exchange seemed strange
to Officer Putnam, not because Appellant refused consent, but because he immediately got out of
his vehicle and started talking about consent before the officers ever made a request to search the
2
Both Officers Putnam and Dickerson had been with the Fort Worth Police Department over seven years at the time
of this incident.
3
vehicle.3 Appellant’s demeanor throughout the exchange was nervous and evasive.
Officer Putnam then called a K-9 unit to the scene. The unit arrived seventeen minutes
later and the dog alerted on the vehicle. The officers found what later turned out to be 3.722 grams
of methamphetamine contained in four plastic bags, all found in a black case in the driver’s seat.4
They also found a bag containing methamphetamine between the passenger seat and center
console. The police then arrested both Appellant and his female passenger.
Appellant’s Claim
Appellant presented a diametrically opposing version of events. At the suppression
hearing, he testified that the parking lot was completely full at the time, and therefore his vehicle
was not alone at one end of the parking lot. The two officers did not approach him on foot, but
rather three vehicles all pulled up behind him. The unmarked police vehicle actually bumped the
rear of his truck. When Appellant got out of his vehicle to see who had hit him, Officer Putnam
approached with his gun drawn. Appellant testified that the other officer pulled his female
passenger out of the pickup, and started going through the vehicle. It was at that point that
Appellant told Putnam they did not have permission to search his vehicle.
Appellant also presented a former employee of the Vapor Room to testify that the parking
lot was crowded. The employee testified that the police vehicles blocked Appellant’s truck in, and
the undercover vehicle tapped Appellant’s bumper. Other officers were also present when Putnam
3
As Officer Putnam testified:
[PROSECUTOR]: Let me ask you this, does a red flag go up to you when you ask a citizen, sir,
ma’am, can I search your vehicle and they -- they use their Constitutional right and say, No, sir, you
can’t? Is that a red flag to you?
[PUTNAM]: No, ma’am.
[PROSECUTOR]: Why was this a red flag to you?
[PUTNAM]: Because I had not asked and he had got out and immediately said I do not consent to
search. It just was out of the ordinary.
4
Additionally, they found body armor that was the subject of a separate indictment not at issue here.
4
and Dickerson first approached Appellant. The employee did not actually witness all these events
firsthand, but reviewed security camera video of the parking lot. The normal operation of the
security system, however, had recorded over the night in question by the time of the hearing and
no video was available.
None of the officers wore bodycams or audio recorders. Either the police vehicles did not
have dash-cam units, or the units were not activated.
The Ruling
The trial court denied the motion to suppress. The court analyzed the issue in two parts:
(1) were the officers justified at the inception in making an investigatory stop; and (2) were their
subsequent actions reasonably related in scope to the circumstances that justified the stop. The
court first found the officers had a reason to patrol the strip center, based on the duties assigned to
their task force, and the high crime in the area. Once at the location, the trial court explained its
rationale for upholding the detention:
Now, when [the officers] spotted Mr. Holmes’ vehicle there, and they approached
the vehicle, they noticed that Mr. Holmes was acting nervously, suspicious. He
gets out of the vehicle, he tells them I’m not going to allow you to look at the -- and
go inside my vehicle. Or my person for that matter. And without them even
requesting that.
Now, the question of whether or not he was blocked in and whether or not how
many officers was there, Mr. Hawkins testified that he saw at least three cars, one
on each side and one in the back. Mr. Holmes testified that he was bumped but it
didn’t leave any marks on his vehicle. But he didn’t say he was blocked in.
The reasonable suspicion because of the high crime area and because the way the
Defendant asked -- his answers to the questions that were made, made the officers
suspicious of criminal activity, they requested that a K-9 unit appear. Testimony is
that a K-9 unit did appear within 17 minutes of the stop, which is not an
unreasonable amount of time. And after the dog alerted, they actually went in and
found these drugs in the vehicle, wherein Mr. Holmes was arrested. His passenger,
Melissa Sherman, was also arrested and charged with these offenses.
Based upon this, the Court believes that both parts of what I need to look at in order
to make a determination about this motion has been satisfied. Officer was justified
at the inception, and then his subsequent actions were reasonably related in scope
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to circumstances that justified that stop. So based upon that the Court’s finding is
that these were good reasons for the officers to be there to make the stop, to make
the arrest, and as such I’m going to deny the Motion to Suppress. That’s going to
be the order [of] the Court.
Both Appellant and the State treat the above quoted statement from the bench as the trial court’s
findings of fact and conclusion of law. Appellant’s first issue claims the trial court erred in failing
to grant the motion to suppress.
Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Crain
v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). That discretion is tested under a bifurcated
standard of review as articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See
Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Krug v. State, 86 S.W.3d 764, 765
(Tex.App.--El Paso 2002, pet. ref’d). Under that bifurcated standard, we give almost total
deference to the trial court’s resolution of questions of historical fact, especially when those
determinations are based on assessments of credibility and demeanor. Arguellez v. State, 409
S.W.3d 657, 662 (Tex.Crim.App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 913
(Tex.Crim.App. 2011). Likewise, we give the same deference to trial court rulings that apply the
law to the facts if those determinations turn on credibility or demeanor. Arguellez, 409 S.W.3d at
662. We review de novo mixed questions of law and fact that do not turn on credibility and
demeanor. Id. We also review de novo whether the totality of the circumstances are sufficient to
support an officer’s reasonable suspicion of criminal activity. Id. at 663; Kothe v. State, 152
S.W.3d 54, 62 (Tex.Crim.App. 2004).
When the trial court makes explicit fact-findings, we determine whether the evidence,
when viewed in the light most favorable to the trial court’s ruling, supports those fact-findings.
State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006). Regardless of whether the motion
to suppress was granted or denied, the prevailing party is entitled to “the strongest legitimate view
6
of the evidence and all reasonable inferences that may be drawn from that evidence.” State v.
García-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008). An appellate court may uphold the
trial court’s ruling if it is supported by the record and correct under any theory of law applicable
to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App. 2007).
Applicable Law
There are three distinct categories of interactions between police officers and citizens: (1)
consensual encounters, (2) investigative detentions, and (3) arrests. Wade v. State, 422 S.W.3d
661, 667 (Tex.Crim.App. 2013). The Fourth Amendment protects against unreasonable searches
and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007).
Because the first category of interactions--a consensual encounter--does not constitute a seizure,
it does not implicate the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct.
2382, 2385, 115 L. Ed. 2d 389 (1991). The police are as free as anyone to approach a person and
ask for information or cooperation. Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324,
75 L. Ed. 2d 229 (1983). But as with any consensual encounter between free citizens, the citizen is
perfectly free to walk away. Id. at 498, 103 S.Ct. at 1324 (highlighting that in consensual
encounters, individuals “may decline to listen to the questions at all and may go on [their] way”);
Crain, 315 S.W.3d at 49. Despite any inconvenience or embarrassment caused by these
encounters, there is no official coercion. García-Cantu, 253 S.W.3d at 243.5
5
As the Court colorfully explained in García-Cantu:
Police officers may be as aggressive as the pushy Fuller-brush man at the front door, the insistent
panhandler on the street, or the grimacing street-corner car-window squeegee man. All of these
social interactions may involve embarrassment and inconvenience, but they do not involve official
coercion. It is only when the police officer engages in conduct which a reasonable man would view
as threatening or offensive even if performed by another private citizen, does such an encounter
become a seizure. It is the display of official authority and the implication that this authority cannot
be ignored, avoided, or terminated, that results in a Fourth Amendment seizure. At bottom, the issue
is whether the surroundings and the words or actions of the officer and his associates communicate
the message of ‘We Who Must Be Obeyed.’
7
When the person is not free to walk away, however, the police have elevated the stop to
either a temporary investigative detention, or arrest, which are seizures for Fourth Amendment
purposes. Crain, 315 S.W.3d at 49. An encounter is no longer consensual when an officer, through
physical force or a show of authority, restrains a person’s liberty. United States v. Mendenhall,
446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980); State v. Castleberry, 332 S.W.3d
460, 466-67 (Tex.Crim.App. 2011). We review de novo the question of whether a consensual
encounter has advanced into a detention. Id. at 468. In making that assessment, there are no
bright-line rules. Id. at 467. Rather, we must examine the totality of the circumstances to
determine whether a reasonable person would have felt free to ignore the officer’s request or to
terminate the consensual encounter. Id.; Mendenhall, 446 U.S. at 554, 100 S. Ct. 1870 at 1877 (“a
person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that he was
not free to leave.”). The test to determine whether a person has been detained is objective and
does not rely on the subjective belief of the detainee or the police. Castleberry, 332 S.W.3d at
468.
For an investigatory detention, the detaining officer must have a reasonable suspicion that
the person is, has been, or is about to be engaged in criminal activity. Florida v. Rodriguez, 469
U.S. 1, 5, 105 S. Ct. 308, 310, 83 L. Ed. 2d 165 (1984); Castleberry, 332 S.W.3d at 466. Reasonable
suspicion of criminal activity permits a temporary seizure for questioning that is limited to the
reason for the seizure. Wade, 422 S.W.3d at 668, citing United States v. Brignoni-Ponce, 422 U.S.
873, 881-82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). Reasonable suspicion is a “less demanding
standard than probable cause” and is “considerably less than preponderance of the evidence,” yet
253 S.W.3d at 243 [footnotes and internal quotes omitted].
8
the Fourth Amendment demands “at least a minimal level of objective justification for making the
stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675-76, 145 L. Ed. 2d 570 (2000).
The reasonable suspicion test also employs an objective standard that disregards the subjective
intent of the officer, and looks to the totality of the circumstances, “including the cumulative
information known to cooperating officers at the time of the detention.” Furr v. State, 499 S.W.3d
872, 877–78 (Tex.Crim.App. 2016).
Application
Appellant urges two primary reasons why the trial court erred in failing to grant the
suppression motion. First, assuming a consensual encounter transitioned into an investigatory
detention at the point when the officers requested a K-9 unit, Appellant argues the trial court erred
in finding any reasonable suspicion at that point in time. The argument follows this line of attack:
(1) the facts known to the officers (high crime area, evening hours, location of the vehicle,
generalized impressions of evasive answers) do not individually, or collectively, justify the
detention; (2) the remaining justification--Appellant’s assertion of his 4th Amendment right--
cannot as a matter of law be considered as a part of the reasonable suspicion formula. Accordingly,
the police lacked a reasonable suspicion to detain Appellant in an investigatory detention after he
exited the vehicle and denied permission to search. Appellant’s second line of attack urges that
the actual detention began when he and his companion were “ordered” out of the pickup, and thus
Appellant’s assertion of Fourth Amendment rights could not be considered in any event. For much
the same reason, the facts then known by the officers would not support any reasonable suspicion
to convert a consensual encounter into an investigatory detention.
We take the second argument first. At the outset, the record does not support Appellant’s
claim that he was “ordered” out of the truck. Officer Putnam specifically denied that Appellant
was ordered out of the car. Putnam testified at the hearing: “I asked him to step out of the truck
9
to speak with me.” At trial he testified that he asked Appellant “if he didn’t mind stepping out and
talking to [him].” Appellant’s testimony does not help in this regard. He claims he exited the
truck before even speaking to an officer. His version of events was so diametrically opposed to
the officers that the trial court had to make a credibility assessment. The court apparently believed
the officers, and we cannot say their testimony shows they ordered him out of the truck.
Appellant also relies on Officer Dickerson’s use of a tactical flashlight and his description
of having “removed” the female passenger from the vehicle. Dickerson actually testified that he
did not remember having his flashlight that night, though he usually does. There is no description
of how the light was used, or whether Appellant even saw it, thus the situation here is different
from when the police use their vehicle’s emergency lights or spotlight as a show of authority. Cf.
Crain, 315 S.W.3d at 52 (use of spotlight directed onto pedestrian coupled with a request to come
over here that sounded like an order); García-Cantu, 253 S.W.3d at 243 (use of spotlight,
authoritative tone officer used, and boxing in defendant who was in a vehicle, were all part the
totality of circumstances indicating a reasonable person would not think they are free to go);
Hudson v. State, 247 S.W.3d 780, 785 (Tex.App.--Amarillo 2008, no pet.)(activating overhead
lights and calling out to pedestrian). Officer Dickerson’s use of the word “removed” is ambiguous
at best, and could imply some use of force, or simply describe the result of a polite request.
The balance of Appellant’s argument contends that the other facts known to the officers
(high crime area, evening hours, location of the vehicle, evasive answers) do not individually, or
collectively justify the search, and that the State must therefore rely on Appellant’s assertion of his
Fourth Amendment rights as a basis for the detention. Appellant then contends the mere denial of
consent to search can never be considered a valid basis to conduct a search. See United States v.
Santos, 403 F.3d 1120, 1125-26 (10th Cir. 2005)(“If refusal of consent were a basis for reasonable
suspicion, nothing would be left of Fourth Amendment protections. A motorist who consented to
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a search could be searched; and a motorist who refused consent could be searched, as well.”);
United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001)(“The mere fact that a
person refuses to consent to search cannot be used as evidence in support of reasonable
suspicion.”).
The argument misses the mark in two respects. First, in Appellant’s actual discussion of
the facts known by the officers, he addresses them individually, and not collectively. The State
expressly disavows that any one fact by itself justifies the search, and we agree. Instead, the State
claims the facts, even omitting the invocation of a Fourth Amendment right, collectively support
the investigative detention. Second, of the facts that Appellant individually assails, he overlooks
the furtive movement by the passenger as witnessed by Officer Dickenson before they even got to
the pickup.
Collectively, the following facts provide at least enough reasonable suspicion for the
officers to have briefly detained Appellant until a K-9 dog cleared the vehicle:
1. Appellant parked his truck in a high crime area, where there was a higher incidence of
drug transactions, stolen vehicles, and persons with felony warrants.
2. Appellant parked his vehicle away from the only open business.
3. Officer Putnam was aware that drugs were sold out of vehicles to patrons of that open
business.
4. It was nighttime and the area was unlit.
5. While approaching the occupied vehicle, Appellant’s passenger made a movement
indicative of hiding something under the seat.
6. When asked what he was doing there, Officer Putnam believed that Appellant’s
responses were evasive and his tone was nervous (though he could not articulate
Appellant’s precise response).
Viewed individually, these facts alone could not justify a detention. E.g. Brown v. Texas, 443 U.S.
47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979)(standing alone, a person’s presence in an area
of expected criminal activity is not enough to support a reasonable suspicion the person is
11
committing a crime); Wade, 422 S.W.3d at 671 (“Nervousness is not sufficient to establish
reasonable suspicion, but nervous or evasive behavior is a relevant factor in
determining reasonable suspicion for a Terry stop and frisk.”); Klare v. State, 76 S.W.3d 68, 73-
74 (Tex.App.--Houston [14th Dist.] 2002, pet. ref’d)(“Time of day is a factor that a court may take
into consideration when determining whether an officer’s suspicion was reasonable; however, time
of day is not suspicious in and of itself.”). But viewed collectively, the circumstances raise
reasonable suspicion that justified at least the seventeen-minute wait for a K-9 unit to confirm or
deny the presence of narcotics. Cf. Amorella v. State, 554 S.W.2d 700, 702 (Tex.Crim.App. 1977)
(reasonable suspicion found where three men were spotted late at night in a car parked in front of
a closed business, with the motor running and the trunk of car open, which one occupant closed
upon seeing the police); Crooks v. State, 821 S.W.2d 666, 669 (Tex.App.--Houston [14th Dist.]
1991, no pet.)(reasonable suspicion found where defendant was sitting in a vehicle in an empty
parking lot in area known for drug trafficking and he ducked in driver’s seat when officer
approached). Because there was sufficient reasonable suspicion raised absent Appellant’s
statement about searching his vehicle, we need not consider whether that statement was important
to the denial of the motion to suppress. We overrule Issue One.
TRIAL REFERENCES TO REFUSAL TO CONSENT
At trial, Appellant re-urged before the jury his claim that the State was relying on illegally
seized evidence. The trial court instructed the jury that no evidence obtained by an officer in
violation of the Texas or United States Constitutions “shall be admitted in evidence against the
accused . . . .” See TEX.CODE CRIM.PROC.ANN. art 38.23(a)(West 2005)(allowing jury to decide
issue when raised by the evidence). The jury was further instructed on the law of consensual police
encounters versus police detentions. If the jury had a reasonable doubt as to whether the police
blocked Appellant in, they were instructed to find Appellant not guilty. Accordingly, the parties
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elicited much of the same evidence from the suppression hearing before the jury.
In his second issue, Appellant complains about the admission into evidence of his statement
that the police did not have consent to search his vehicle, and the prosecutor’s reference to that
same statement in opening and closing argument. Appellant contends that the Fourth Amendment
allows one to refuse to consent to a search, just as the Fifth Amendment allows one to refuse to
take the stand in their own defense. Generally, a prosecutor cannot comment on or present
evidence of a defendant’s invocation of the Fifth Amendment right not to testify. Griffin v.
California, 380 U.S. 609, 613, 85 S. Ct. 1229, 1232, 14 L. Ed. 2d 106 (1965)(prohibiting comments
on failure to testify); Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241, 49 L.Ed.2d
91(1976)(prohibiting evidence of post-arrest silence). Appellant urges a similar prohibition should
have applied to his sua sponte statement to the police that they did not have permission to search
his vehicle. In sum, he urges that we apply the Fifth Amendment Griffin and Doyle holdings to
the facts of this Fourth Amendment case.
The Testimony
Appellant complains about this exchange during Officer Putnam’s trial testimony:
[PROSECUTOR]: What happens then?
[PUTNAM]: The Defendant steps out of the vehicle and immediately shuts the
door and tells me: I do not consent to any searches.
[PROSECUTOR]: Had there been any question --
[DEFENSE COUNSEL]: I object -- I object to this, Your Honor. I object. A
person’s assertion of his constitutional right is not -- is not a basis for search or
detention.
THE COURT: That’s overruled.
[PROSECUTOR]: Had there been any discussion or question from you thus far
about searches?
[PUTNAM]: No, ma’am, I had not asked to search anything at that time.
[PROSECUTOR]: Had anyone, the Defendant, the passenger, Officer Dickerson,
13
anyone right there on the scene said anything about searching?
[PUTNAM]: No, ma’am.
[PROSECUTOR]: The Defendant is the first one to bring it up?
[PUTNAM]: Yes, ma’am.
The same testimony came out at other points in the trial. In Appellant’s cross-examination of
Officer Putnam, we find this exchange:
[DEFENSE COUNSEL]: Okay. What did you say to him when he says I don’t --
I’m not going to consent to you searching my car?
[PUTNAM]: I just said, okay, I haven’t asked you to search, is there anything I
need to be aware of.
[DEFENSE COUNSEL]: And what did he say?
[PUTNAM]: He said no.
The same issue came up again when Appellant called his passenger, Ms. Sherman to testify.
She claimed that all the drugs were hers; she was only with Appellant that night because they were
old friends. They had just pulled up into the parking lot, intending to go into the game room, when
several police vehicles pulled up. On direct examination, she explained:
[SHERMAN]: And then I proceeded to step out of the car and that’s when -- when
I went to go step out of the car, that’s when they started to dig in the vehicle and
that’s when Mr. Holmes said: I do not consent to search of my vehicle.
[DEFENSE COUNSEL]: Okay. So let me ask you, did he say that in response to
them looking through the car?
[SHERMAN]: Yes, yes.
The same substance of the above quoted testimony came out at least four more times during the
State’s cross-examination of Ms. Sherman. Appellant’s counsel objected, but only to the repetitive
nature of the questions.
The State’s Opening and Closing Argument
Appellant also complains of this statement in the State’s opening:
[PROSECUTOR]: Well, Officer Putnam walked up to the driver’s side and started
talking with the driver, the Defendant. And he asked him what he was doing there.
14
The Defendant said he was there for the game room, but he appeared to be nervous,
so Officer Putnam asked the Defendant to step out of the vehicle. The Defendant
steps out, immediately shuts his door and says --
[DEFENSE COUNSEL]: Objection, Your Honor. Pejorative comment on exercise
of Constitutional rights. I object.
THE COURT: That’s overruled. It’s just opening statements, not evidence.
[PROSECUTOR]: And says that he can’t search anything without even being
asked a question. All of these circumstances and factors go into Officer Putnam
calling a K-9 unit out to the scene.
And this exchange in the State’s rebuttal closing argument:
[PROSECUTOR]: You get to make reasonable inferences from the evidence, and
I get to argue as to what that may be. He’s thinking, as he gets out of the truck --
because we know he said door slammed. No, no, you can’t search. Can’t search
here. Can’t search here. Door slammed. Door closed.
[DEFENSE COUNSEL]: I object. I object, Your Honor. Counsel is stating that
invocation of his constitutional right is evidence of his guilt. Prohibited argument.
THE COURT: That’s overruled.
[PROSECUTOR]: So you know that when he immediately got out, he knew
something was in that truck. What’s the big deal? Oh, no, me and Melissa just
riding around just chilling. Yeah, that’s my friend. I’ve known her since she was
just knee high to a grasshopper. Yeah, Officer, you want to search? We’re just
doing some game room business tonight. Come on in. Yeah, let me open the door
for you.
[DEFENSE COUNSEL]: I object. This is further argument about his assertion of
a constitutional right as being evidence of guilt.
[PROSECUTOR]: Reasonable conclusion of the facts.
[DEFENSE COUNSEL]: It’s not a reasonable conclusion --
THE COURT: It’s overruled. It’s overruled. This is just final argument.
Standard of Review
We review a trial court’s decision to admit or to exclude evidence for an abuse of
discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). A trial court also
has broad discretion in controlling the scope of opening and closing argument. Dugan v. State, 82
Tex. Crim. 422, 199 S.W. 616, 617 (1917)(opening); Lemos v. State, 130 S.W.3d 888, 892
15
(Tex.App.--El Paso 2004, no pet.)(closing). Accordingly, we also review a trial court’s ruling on
an objection asserting improper jury argument for an abuse of discretion. Whitney v. State, 396
S.W.3d 696, 705 (Tex.App.--Fort Worth 2013, pet. ref’d). The test for an abuse of discretion is
whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). A trial court abuses
its discretion when its decision is “so clearly wrong as to lie outside the zone within which
reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008).
Preservation of Error
At the outset, the State urges several reasons why Appellant has forfeited the claimed error.
We need only address two of those arguments.
Preservation of error under Texas Rule of Appellate Procedure 33 requires that the record
show (1) the complaining party made a timely and specific request, objection, or motion; and (2)
the trial judge ruled either on the request, objection, or motion, or the court refused to rule and the
complaining party objected to that refusal. TEX.R.APP.P. 33.1(a); Haley v. State, 173 S.W.3d 510,
516-17 (Tex.Crim.App. 2005). A corollary states that the issue on appeal must mirror 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 [for review] depends on whether the complaint on appeal
comports with the complaint made at trial.”). Appellant’s argument on appeal is hinged on the
precept that a person cannot be penalized for exercising a constitutional right. Appellant advances
that concept from the Fifth Amendment cases of Griffin and Doyle, and persuasively argues they
should equally apply to Fourth Amendment protections. Yet we view the objection to Officer
Putnam’s testimony as raising a relevance concern (“I object -- I object to this, Your Honor. I
object. A person’s assertion of his constitutional right is not -- is not a basis for search or
16
detention.”). And the objection made at the suppression hearing was also a relevance objection,
and not the nuanced constitutional argument advanced here.6
The Texas Court of Criminal Appeals also requires that “an objection must be timely,
specific, pursued to an adverse ruling, and must be made each time inadmissible evidence is
offered. Haley, 173 S.W.3d at 516-17; Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003);
see also Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)(explaining that Texas applies
the “futility rule,” meaning that despite a trial court’s ruling that evidence is admissible, a party
must keep making futile objections on pain of waiver). Stated otherwise, evidentiary error is cured
when the same evidence is admitted elsewhere without objection. Id. at 718; Gillum v. State, 888
S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref’d); see also Clay v. State, 361 S.W.3d 762, 767
(Tex.App.--Fort Worth 2012, no pet.). As we set out above, testimony about Appellant’s sua
sponte statement to the police came in without any objection at several points in the trial. The
State urges the admission of the testimony without objection elsewhere cured any error with the
one instance where an objection was lodged.
There are two exceptions to the rule requiring an objection be lodged each time the
evidence is offered. Counsel may (1) obtain a running objection, or (2) request a hearing outside
the presence of the jury. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Haley, 173
S.W.3d at 516-17. Appellant did not request a running objection, nor was there a hearing on the
admissibility of the particular statement at issue here. The only hearing was on the motion to
6
When the issue came up in the suppression hearing, Appellant objected as follows:
[STATE’S ATTORNEY]: Had there been any request from you at that point for a search at all?
[APPELLANT’S COUNSEL]: I object. I object. The fact -- Judge, the fact that someone asserts
their Constitutional rights is not a basis for search. And I --
THE COURT: What was the question?
[STATE’S ATTORNEY]: Had he, Judge, asked for a search at this point.
THE COURT: Okay. It’s overruled.
17
suppress. As a general rule, a motion to suppress will preserve error in the admission of evidence
without further objection at trial if the motion is overruled by the court following a pretrial hearing.
Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App. 2004). Nonetheless, the motion to suppress
sought to suppress evidence based on the claimed illegality of the detention and subsequent search.
The trial judge was never asked to consider the admissibility of Appellant’s sua sponte statement
based on the argument advanced here. That is to say, if the argument on appeal complained that
the sua sponte statement was the fruit of an illegal detention, the ruling on the motion to suppress
would have preserved any error without need for the same trial objection. Yet the argument on
appeal is entirely different and the suppression ruling did not operate to preserve an argument
never advanced at the suppression hearing.7
When error is not preserved, there is nothing for an appellate court to review. Ethington v.
State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991)(error not preserved where defendant fails to
object to evidence at trial); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984); Leday
v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)(“Our rule, therefore, is that overruling an
objection to evidence will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling. This rule applies whether the other
evidence was introduced by the defendant or the State.”). We are constrained to agree with the
State that the error presented here is forfeited.
Application
Even were we incorrect on the forfeiture argument, however, under the unique facts of this
case Appellant’s argument would still fail. Existing Texas authority holds that an individual’s
7
Another possible exception contemplates that a defendant may himself admit evidence to rebut improperly obtained
and admitted evidence when “impelled” to do so. Leday, 983 S.W.2d at 718-19. Appellant has not raised this issue,
and indeed did not respond to the State’s waiver argument at all on appeal. We think the exception inapplicable
because had Appellant’s argument as advanced on appeal been urged below, the trial court could have excluded the
“consent” testimony altogether while still admitting the balance of the evidence challenging and upholding the
detention.
18
refusal to consent to a search is not evidence of guilt. This court first reached that conclusion in
Powell v. State, 660 S.W.2d 842, 845 (Tex.App.--El Paso 1983, no pet.). In that case, the defendant
picked up a package from a shipping service. The police immediately confronted her and asked
to open the sealed package. We held the defendant’s refusal to open the package was not
admissible because “[t]he invocation of constitutional rights such as assistance of counsel, silence,
or freedom from unreasonable searches may not be relied upon as evidence of guilt. To permit the
use of such evidence for purposes of incrimination would erode the protections guaranteed by both
state and federal constitutions.” Id. at 845; see also Reeves v. State, 969 S.W.2d 471, 495
(Tex.App.--Waco 1998, pet ref’d)(reaching the same holding for search of a house). The weight
of federal and out-of-state authority follows this rule. U.S. v. Runyan, 290 F.3d 223, 249 (5th Cir.
2002)(collecting cases and stating “the circuit courts that have directly addressed this question
have unanimously held that a defendant’s refusal to consent to a warrantless search may not be
presented as evidence of guilt.”); Kenneth J. Melilli, The Consequences of Refusing Consent to A
Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S.Cal.L.Rev.
901, 903-04 (2002)(collecting cases).
The facts of this case, however, raise an important distinction. The officers never asked to
search the vehicle and the denial of consent was an unsolicited comment from Appellant. The San
Antonio Court of Appeals distinguished the Powell line of cases when the statement was not in
response to any police request for permission to search. Bishop v. State, 308 S.W.3d 14, 17-18
(Tex.App.--San Antonio 2009, pet ref’d). In Bishop, the police effected a traffic stop and placed
the defendant under arrest for an outstanding warrant. They placed him in the back of a police
squad car and began searching the defendant’s vehicle based on the search-incident-to-arrest
exception under the Fourth Amendment. See Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710,
1714, 173 L. Ed. 2d 485 (2009)(defining scope of exception). As they began their search of the car,
19
the defendant “started yelling loudly from inside the patrol car that they did not have permission
to search the vehicle and it was an illegal search.” 308 S.W.3d at 16. The statement was introduced
at trial, and on appeal, he claimed it was an improper comment on his invocation of the Fourth
Amendment.
The court rejected the argument because the defendant’s “statements were not an
invocation of his Fourth Amendment right to decline permission for a search” but were “made
spontaneously, in the excitement of the moment, and were not the result of questioning; therefore,
they were admissible as ‘res gestae’ statements.” Id. at 17-18; see also McCauley v. State, 05-15-
00629-CR, 2016 WL 3595478, at *2 (Tex.App.--Dallas June 28, 2016, pet. ref’d)(mem. op., not
designated for publication)(holding that “because the Fourth Amendment did not require police to
obtain a warrant to insist on a test of appellant’s breath, admission of evidence of appellant’s
refusal would not violate the Fourth Amendment.”); Davis v. State, 10-10-00405-CR, 2012 WL
662315, at *3 (Tex.App.--Waco Feb. 29, 2012, pet. ref’d)(mem. op., not designated for
publication)(admission into evidence of defendant’s statement to officers “not [to] search his
room” was not error because search was based on warrant and not a request for consent). The
officers here never asked for consent to search, nor was their justification for the search based on
consent.
Additionally, the State’s use of the sua sponte statement was at least partly in response to
Appellant’s argument that the methamphetamine was not his. The police found two stashes of the
drug in the vehicle--one in a black case on the driver’s side and one in a baggy between the
passenger side seat and center console. Appellant called the passenger as a witness who testified
that all the drugs were hers and that Appellant was unaware of the drugs. Appellant presaged this
defense in his opening statement. He reiterated the defense in closing argument. The State argued
that his sua sponte statement showed his knowledge of the drugs in the vehicle.
20
Several federal courts have distinguished the use of a denial-of-consent-statement when it
is relevant to rebut a defensive issue. U.S. v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999)
(defendant’s refusal to permit the search of a particular room held admissible for the “proper
purpose of establishing dominion and control over the premises where a large part of the cocaine
was found.”); U.S. v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991)(“Appellant was well aware that
if he claimed the cocaine had been planted in his truck by Officer Clarke, the prosecutor would be
allowed to comment on his refusal to allow a search at the time most important to this issue.”).
Because the evidence was germane to rebuttal of a specific defensive issue, the trial court did not
err in allowing it.
Moreover, we conclude that the trial court did not abuse its discretion in admitting
Appellant’s statement over a relevance objection. And once that statement was in evidence (from
the several sources we set out above), the trial court did not abuse its discretion in allowing the
State to comment on the testimony. Generally, proper jury argument falls into one of four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the
opposing counsel’s argument; or (4) a plea for law enforcement. Berry v. State, 233 S.W.3d 847,
859 (Tex.Crim.App. 2007); Underwood v. State, 176 S.W.3d 635, 639 (Tex.App.--El Paso 2005,
pet. ref’d). In its closing, the State is allowed to comment on evidence admitted during trial. See
Felder v. State, 848 S.W.2d 85, 96 (Tex.Crim.App. 1992)(accurate summation of evidence
admitted at trial was not error); Quiroz v. State, 764 S.W.2d 395, 400 (Tex.App.--Fort Worth 1989,
pet. ref’d)(no error shown when State’s argument was a proper summation of and reasonable
deduction from the evidence). In its opening statement, the State has the statutory right to tell the
jury the nature of the accusations against the defendant and the facts that are expected to be proven.
TEX.CODE CRIM.PROC.ANN. art. 36.01(a)(3)(West 2007); Taylor v. State, 947 S.W.2d 698, 706
21
(Tex.App.--Fort Worth 1997, pet. ref’d). Because the trial court did not abuse its discretion in
admitting the evidence, or allowing comments on what was in evidence, we overrule Issue Two.
REFUSAL OF CHARGE INSTRUCTION
In his third issue, Appellant complains of the trial court’s refusal to include this statement
in the court’s charge: “[Y]ou are instructed that a person’s assertion of a constitutional right may
never be considered by you as evidence of his guilt.” The trial court denied the requested
instruction.
Standard of Review
The trial court shall deliver a “written charge distinctly setting forth the law applicable to
the case” to the jury. TEX.CODE CRIM.PROC.ANN . art. 36.14 (West 2007). We review charge
error under a two-pronged test. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
First, we must determine whether error exists; second, if error exists, we then must evaluate the
harm caused by the error. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). The degree
of harm required for reversal depends on whether the error was preserved at trial. Almanza, 686
S.W.2d at 171; Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App. 2008). If the error was
preserved, we review for “some harm.” Almanza, 686 S.W.2d at 171. We must reverse “if the
error is calculated to injure the rights of defendant, which means no more than that there must be
some harm to the accused from the error.” Almanza, 686 S.W.2d at 171 (internal quotes omitted).
In other words, a properly preserved error will require reversal as long as the error is not harmless.
Id. This analysis requires a reviewing court to consider (1) the jury charge as a whole, (2) the
arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the
record. Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013); see also Almanza, 686
S.W.2d at 171 (“[T]he actual degree of harm must be assayed in light of the entire jury charge, the
state of the evidence, including the contested issues and weight of probative evidence, the
22
argument of counsel and any other relevant information revealed by the record of the trial as a
whole.”).
Preservation of Error
The State urges that the error is not preserved. No doubt, Appellant asked for the inclusion
of the requested charge and the trial court denied that request. Instead, the State’s preservation
argument turns on the failure to request the same language as a limiting instruction when the trial
court admitted the evidence before the jury. The State’s forfeiture argument claims that when
evidence is admitted without a proper objection, a litigant cannot circle back at the charge
conference seeking an instruction to disregard that evidence. See Pena v. State, 08-07-00107-CR,
2009 WL 1889009, at *3 (Tex.App.--El Paso June 30, 2009, pet. ref’d)(not designated for
publication)(holding that trial court did not err in refusing instruction on invocation of Fifth
Amendment right when evidence about that issue was admitted without any request for limiting
instruction).
The Court of Criminal Appeals has held that when a party seeks a limiting instruction, the
request must be made when the evidence is offered, and not at the end of the trial. Hammock v.
State, 46 S.W.3d 889, 894 (Tex.Crim.App. 2001). The rule protects the jury who otherwise would
process a piece of evidence during the course of the trial, only to be later told to consider it in a
completely different light. Id.; see also Scott v. State, No. 02-14-00183-CR, 2015 WL 3523155,
at *5 (Tex.App.--Fort Worth June 4, 2015, pet. ref’d)(mem.op., not designated for publication)
(jury charge complaint forfeited because defendant waited until the charge conference to request
jury instruction telling jury not to consider detective’s statements during interview with defendant).
The limiting instruction case law is appropriate for this case. The State admitted the sua
sponte statement to rebut Appellant’s claim that he was ignorant of the drugs, and they all belonged
to his passenger. The proposed instruction informed the jury that the evidence could not be
23
considered as evidence of guilt or innocence. Had the issue been raised to the trial court when the
testimony was elicited, the court might have considered some manner of limiting instruction. But
because evidence of Appellant’s sua sponte statement was admitted multiple times (several times
without objection), it came in for all purposes. Therefore, even if the proposed instruction was
correct, the charge stage was too late to add a limiting instruction.
Application
Even were we incorrect on the forfeiture ground, we conclude the trial court did not err in
refusing Appellant’s requested submission. The statement that “a person’s assertion of a
constitutional right may never be considered by you as evidence of his guilt” is an overstatement
of the law. It may be true in circumstances such as Powell and Reeves, when the police actually
request permission to search. It falters in cases such as Bishop, Dozal, and McNatt when the basis
for the search was not based on consent, or the statement was germane to rebut a defensive issue.
Because this case involved use of the statement to rebut a defensive issue that Appellant raised,
the blanket instruction that Appellant seeks goes too far. Under the facts of this case, the requested
instruction would not have been a substantially correct statement of law and trial court did not err
in submitting it as worded. We overrule Issue Three.
CONSOLIDATED COURT COSTS
Appellant was assessed a $133 “consolidated court cost” fee as a part of his judgment of
conviction. At the time of his conviction, the state comptroller by statute allocated the proceeds
from that fee in varying percentages to fourteen specified accounts. Act of June 17, 2011, 82nd
Leg., R.S., ch. 1249, § 12, 2011 TEX.GEN.LAWS 3349, 3353 (formally codified at TEX.LOC.GOV’T
CODE ANN. § 133.102(e). In his fourth issue, Appellant contends that three of those designated
accounts are not used for criminal justice related functions, and thus the “consolidated court costs”
is more akin to a tax used to pay the general obligations of the State. The distinction is an important
24
one. Under the Separation of Powers Clause of the Texas Constitution, the judiciary is not a taxing
entity--the constitution delegates that role to the other branches of government. See Peraza v.
State, 467 S.W.3d 508, 517-18 (Tex.Crim.App. 2015), cert. denied, 136 S. Ct. 1188 (2016)(a fee
statute is considered constitutional under separation of powers only if it provides for the allocation
of court costs for a legitimate criminal justice purpose); see TEX.CONST. art. II, § 1.
Specifically on appeal before this court, Appellant contends that the assessment of
“consolidated court costs,” which include allocations to accounts for (1) “abused children’s
counseling,” (2) “law enforcement officers standards and education,” and (3) “comprehensive
rehabilitation” violates the Separation of Powers Clause, rendering the entire statute
unconstitutional. After this case was submitted, the Texas Court of Criminal Appeals agreed with
Appellant’s argument with regard to the “abused children’s counseling” and “comprehensive
rehabilitation” accounts. Salinas v. State, 523 S.W.3d 103, 108 (Tex.Crim.App. 2017). For
reasons detailed in that opinion, the proceeds earmarked for those two specific accounts were going
into either the State’s general revenue fund, or to the Department of Human Services. While this
holding seemingly helps Appellant, two other holdings from the case control our disposition of his
issue.
First, the Salinas court held that the consolidated court cost statute was severable in the
sense that if one of the allocated uses is improper, only the portion of the $133 fee allocated to that
use should be deleted from the judgment of conviction. Id. at 110-11. This holding necessarily
precludes the relief that Appellant sought in his prayer to this Court--deleting the entire $133 fee.
More importantly, the Texas Court of Criminal Appeals also directed that its holding have limited
retroactivity. Id. at 111-12. The court limited the holding to the actual party in Salinas and “any
defendant who has raised the appropriate claim in a petition for discretionary review before the
date of this opinion, if that petition is still pending on the date of this opinion and if the claim
25
would otherwise be properly before us on discretionary review.” Id. Otherwise, the Salinas
holding applies prospectively to “trials that end after the date the mandate in the present case
issues.” Id. Accordingly, the Texas Court of Criminal Appeals has directed the lower courts not
to modify a trial court’s judgment by reducing the consolidated fees allocated to the accounts for
“abused children’s counseling” and “comprehensive rehabilitation.” And while Appellant in a
letter brief urges this Court to extend the Salinas holding to cases pending in an intermediate court
of appeals, we are constrained by both the language of the Salinas opinion, and Fort Worth Court
of Appeals decisions refusing that same invitation. Horton v. State, 02-16-00229-CR, 2017 WL
1953333, at *4 (Tex.App.--Fort Worth May 11, 2017, pet. ref’d); Hawkins v. State, No. 02-16-
00104-CR, 2017 WL 1352097 (Tex.App.--Fort Worth Apr. 13, 2017, pet. filed); see TEX.R.APP.P.
41.3 (obligation to follow controlling precedents from transferring court).
We would reject Appellant’s argument for another reason. The Salinas court noted that if
the legislature amended the statute before the mandate in that case issued, “the only cases that will
be affected by this opinion will be the few that are now pending in this Court and are appropriate
for relief.” 523 S.W.3d at 113 n.54. The legislature has indeed amended the statute and deleted
the “abused children’s counseling” and “comprehensive rehabilitation” provisions. See
TEX.LOC.GOV’T CODE ANN. § 133.102(e)(amended by Act of Apr. 27, 2017, 85th Leg., R.S., ch.
966, § 1 (effective June 15, 2017)). That amendment went into effect on June 15, 2017, preceding
the mandate in Salinas, which issued on June 30, 2017. Id.; see also Hurtado v. State, No. 02-16-
00436-CR, 2017 WL 3188434, at *1 (Tex.App.--Fort Worth July 27, 2017, no pet. h.)(mem. op.,
not designated for publication)(noting same).
Appellant also urges that the collection of court costs allocated to the “law enforcement
officers standards and education” account is similarly unconstitutional. Salinas did not address
this particular account, but the Fort Worth Court of Appeals has, and it rejected this identical
26
argument. Ingram v. State, 503 S.W.3d 745, 748 (Tex.App.--Fort Worth 2016, pet. ref’d); see also
Austin v. State, 06-16-00135-CR, 2017 WL 2265679, at *2-4 (Tex.App.--Texarkana May 24,
2017, pet. ref’d)(following Ingram and rejecting similar claim). In this transfer case, we are bound
by that holding and similarly overrule Appellant’s claim regarding the “law enforcement officers
standards and education” account. See TEX.R.APP.P. 41.3.
We sustained Issue Four as to the “abused children’s counseling” and “comprehensive
rehabilitation” account, but deny the relief sought. Issue Four is overruled. We affirm the
judgment.
October 31, 2017
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
27