Lawrence Samuel Jr. v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-341-CR
LAWRENCE SAMUEL JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Lawrence Samuel Jr. appeals his conviction for forgery. See
Tex. Penal Code Ann. § 32.21 (Vernon Supp. 2009). In six points, Samuel
argues that the evidence is legally and factually insufficient to sustain his
1
 See Tex. R. App. P. 47.4.
conviction and that the trial court erred by denying his motion to suppress his
statement made to police. We will affirm.
II. B ACKGROUND
In January 2007, Panthea Christakis went to Jackson-Hewitt, located in
a Wal-Mart in Arlington, Texas, to have her income taxes prepared. Christakis’s
tax refund totaled almost $3000. The Jackson-Hewitt representative who
prepared Christakis’s tax return told her that her check would be available in
about eight business days. The representative also told Christakis that she
would need to return in order to pick up her check. According to Christakis,
over two weeks passed and no one from Jackson-Hewitt contacted her.
Christakis repeatedly called to inquire about her check. At first, Jackson-
Hewitt’s representatives explained that Christakis’s check had not arrived, but
later they informed her that her check had been delayed because of a
misspelling and that she would need to come back and amend her paperwork
in order to receive her check. But before Christakis could return, she received
a letter from a bank explaining that she had cashed the check and that she
owed bank fees.
Confused, Christakis called Jackson-Hewitt multiple times and explained
to numerous representatives that she had never received her check. Eventually,
on March 16, 2007, Jackson-Hewitt’s general manager, Donald Maceachran,
2
called Christakis and told her that he would print her a new check within
twenty-four hours. Christakis, however, did not receive a check until late
March 2007. Christakis testified that she had never authorized anyone to cash
the first check and that she had never seen Samuel before the day she testified
at trial.
Maceachran testified that he first learned sometime in February 2007 that
Christakis had not received her check. According to Maceachran, his office
manager called him concerned that a check had been printed for Christakis but
the check could not be located. Maceachran said that he did not remember
whether he was ever aware that the first check might have had a misspelling
on it, but he was initially unable to locate the first check when it was brought
to his attention that Christakis had not received it. Maceachran testified that
the original check would have been printed at the branch where Samuel worked
and that all employees at that branch would have had access to Christakis’s
check. He also said that if Christakis had picked up the check, there should
have been a photocopy of her identification and a sheet with her signature
indicating that she had picked up her check, but that neither of these items
were found in her file. Maceachran said that after he learned the check was
missing, he called an employee meeting which Samuel attended. Maceachran
stated that he had each employee—including Samuel—write down what they
3
knew about the missing check. By Maceachran’s account, Samuel responded
that he “had never seen the check and had nothing to do with the
disappearance of the check.” Maceachran then called Jackson-Hewitt’s bank
in an effort to get a reprint of the check and learned that the first check had in
fact been cashed. 2 Maceachran investigated.
The bank faxed Maceachran a copy of the negotiated check, and he
learned that the check had been cashed at a convenience store in Fort Worth.
Maceachran went to the store and learned that whoever cashed the check had
presented Samuel’s identification along with the check. Maceachran also
learned that the negotiated check also contained Samuel’s thumbprint on it.
Maceachran said that he fired Samuel shortly after learning these things.
According to Maceachran, his files indicated that he fired Samuel on February
27, 2007. Maceachran identified Samuel at trial as the man he fired.
Maceachran also contacted the Arlington Police Department.
Abdul Wafayee, the owner of the convenience store where the first check
was negotiated, testified at trial. Wafayee said that his store was a
2
 The record indicates that Jackson-Hewitt customers do not receive
their original checks issued by the IRS; rather, customers grant Jackson-Hewitt
the authority to deposit original IRS checks into a Jackson-Hewitt bank account
and then issue new checks in the amount of the IRS return minus Jackson-
Hewitt’s fees for preparing the customers’ tax returns.
4
combination gas station, grocery store, and check cashing store. According to
Wafayee, whenever a check is cashed for more than $500, he makes a
photocopy of the check, a photocopy of the driver license of the person who
is cashing the check, and the right thumbprint of the person cashing the check.
Wafayee said that he was familiar with Samuel because Samuel was a
routine customer. He said that on the night the check was cashed, 3 Samuel
came to the store and presented the check, his driver license, and his business
card. Wafayee also testified that Samuel came in with a file and explained that
he was cashing the check for one of his clients. Originally, Wafayee testified
that it was Samuel who signed the back of the check with the signature
“P. Christakis,” but later Wafayee said that he did not remember whether the
check was signed in his presence or prior to the check being presented to him.
When asked again by the State whether Samuel signed the check, Wafayee
said that he was “positive” that Samuel signed the check in his presence. But
when defense counsel asked again who signed the check, Wafayee said both
that his testimony was that Samuel had signed the check and also that he did
not remember who signed the check. Wafayee admitted that English is not his
“first language.”
3
 The negotiated check bares a banking mark that the check was
processed by the processing bank on February 26, 2007.
5
Wafayee said that he cashed the check because Samuel “works for the
tax office, I trusted him. He had [a] business card.” According to Wafayee, he
could not remember whether Samuel had come in by himself or with a woman
and that if Samuel had come in with a woman, he did not remember what she
looked like. Wafayee also said that he did not remember telling the police that
Samuel had come in alone to cash the check.
The State then called Arlington Police Detective Darren McMichael to the
stand. The court held a motion to suppress hearing outside the presence of the
jury. Samuel argued that the statement he made to McMichael during
McMichael’s investigation should be suppressed because Samuel believed he
was in custody after McMichael read a card to Samuel that contained Miranda
warnings. Specifically, Samuel argued that reading Miranda warnings to an
individual who is not in custody is “inappropriate” because it would lead
someone to “believe that, in fact, they were in custody.” Samuel also
contended at the hearing that he was not challenging the voluntariness of his
statements nor was he alleging that McMichael “did anything uncordial or
coercive in obtaining [Samuel’s] statement.”
At the hearing, McMichael testified that during his investigation—in early
April 2007—he called Samuel and asked him “to voluntar[ily] come in and give
a statement regarding the incident.” McMichael said that Samuel came to the
6
station on his own and that no one went and picked him up and brought him
to the station. After Samuel arrived, McMichael informed Samuel that he was
not under arrest, that “he was there voluntarily[,] and [that] he could leave at
any time.” McMichael said that it was the Arlington Police Department’s policy
to read a “city-issued green Miranda card” to anyone who was being
interviewed. The State introduced into evidence a card bearing Miranda
warnings that has a line drawn diagonally across the text and a signature.
McMichael said that policy dictated that he read the card and have any
interviewee sign a diagonal line drawn on the card after the warnings are read
to indicate the interviewee waived those rights. According to McMichael, the
signature on the green card was Samuel’s and the signature indicated that
proper policy had been followed. McMichael testified that he made it clear to
Samuel that he was free to leave. He also testified that Samuel was not
restrained in any way, there was no warrant for Samuel’s arrest, Samuel was
the closest to the door in the interview room, and there were no other officers
in the room with them.
McMichael recalled that after he confronted Samuel with evidence that
Christakis’s check had been cashed by someone using Samuel’s identification,
Samuel explained that “a woman had come and approached him about having
difficulties cashing the check because there was a misspelling of her name.”
7
After he was approached, Samuel explained that he took the check to a
convenience store along with the woman and helped her cash the check.
McMichael asked Samuel to describe the woman. After Samuel gave a
description of the alleged woman, McMichael challenged Samuel by explaining
that he “had factual evidence [that McMichael] knew the actual correct
answers to and advised him that . . . the answers he was giving me were not
the fact.” McMichael said that Samuel immediately asked if there was
something he could do “to make this go away.” According to McMichael,
Samuel even offered to pay the money that was “taken from the check [if] this
[would] go away.” McMichael responded that the victim was adamant about
prosecuting. At this time, by McMichael’s account, Samuel stated that he
“didn’t want to talk much more about the case.”
McMichael said that he then informed Samuel that he would make note
in his report of his decision to conclude the interview. When asked what
happened next, McMichael said:
Well, as I’m wrapping up my notes and everything that I had on the
table, I told him that -- I said, [Samuel], I said, there are reasons
that people make decisions that they do, and I said, sometimes
people opt for bad decisions. And, at that point, he put his hands
in his head and said, you hit the nail on the head. And so we got
up and started to proceed out of the interview room and down the
hallway to exit the police station.
8
McMichael said that as they walked toward the exit, Samuel said that the
pressures of money had gotten to him, that he had cashed the check because
he needed money to pay bills, and that no one had accompanied him to the
convenience store to cash the check. McMichael said that the interview lasted
“[a]pproximately 30 to 40 minutes” and that after Samuel made these
statements to him, Samuel left the police station. McMichael also said that he
did not record the interview because of technical difficulties. At the conclusion
of the hearing, the trial court overruled Samuel’s objection and said, “I’m going
to find that [Samuel] was not in custody when he made the statement.”
McMichael then testified before the jury. McMichael retold many of the
same things he had already said during the hearing. He also detailed his
investigation and how it led him to Samuel. McMichael said that he interviewed
Wafayee and Wafayee had indicated that Samuel was alone when he cashed
the check and that Samuel was the person who signed the check. In addition,
McMichael said that during his investigation Christakis signed a forgery affidavit
which indicated that she was not the person who cashed the check and that
she had not benefitted from the check being cashed in any way. McMichael
also said that Christakis was interested in having the person who cashed the
check prosecuted.
9
Samuel testified in his own defense. According to Samuel, a coworker
had brought his attention to a check with a misspelling of Christakis’s name on
it in January 2007. Samuel said the coworker laughed about the misspelling
made by another coworker who frequently made mistakes. Samuel said that
sometime in “mid February” a woman came to his Jackson-Hewitt booth
claiming to be Christakis. Samuel said that it was late, “about 9:00.” Samuel
described the woman as crying because her check had a misprint on it, and
Samuel said she claimed that she was unable to cash her check. Samuel said
that when she showed him the check, he was already familiar with it because
of the coworker who had previously pointed it out to him. Samuel testified that
he told the woman that he could help her cash her check by taking her to a
convenience store and that he felt compelled to do so because he knew of the
misspelling and he knew that people who come to Jackson-Hewitt are typically
lower income individuals.
Samuel stated that the woman presented an ID to him, but that he did not
look at it closely because of his familiarity with the check. According to
Samuel, the woman followed him in a separate car to Wafayee’s convenience
store, where they both went in and presented the check to Wafayee, and he
showed Wafayee his ID. Samuel said that the woman who brought the check
to him was standing next to him in the convenience store while Wafayee
10
processed the check. Samuel said that after he cashed the check, “I gave her
the money.” Samuel testified that after he gave her the money, she thanked
him, they went their separate ways, and he never saw her again. Samuel also
said that he was never fired from Jackson-Hewitt; rather, he “got another job.”
Samuel said that Christakis, who had testified earlier, was not the woman who
came to him asking for help.
Samuel also testified to his account of the interview with McMichael.
Samuel said that McMichael called him in late March. According to Samuel, he
thought that he was being interviewed about a scanner that was missing from
Jackson-Hewitt. When McMichael asked him about the check, Samuel said
that he told him that he had helped a woman cash a check that had a
misspelled name on it. Samuel denied ever telling McMichael that he had
cashed the check alone. Samuel also denied ever signing the check. Samuel
claimed that the check was already signed when it was received by him.
Samuel said that McMichael claimed to have a videotape of him cashing the
check.
Samuel admitted that he told McMichael that he was willing to pay back
whatever money Jackson-Hewitt might have lost because of his actions but
that he had offered to do so because he believed he had made a mistake
helping a person, not because he had committed a crime. Samuel said that
11
although he was intimidated by McMichael—because McMichael is “a pretty big
guy”—he left the police station after the interview. Samuel denied ever telling
McMichael that he had cashed the check alone because of money pressures.
After closing arguments, the jury retired to deliberate. The jury found Samuel
guilty and assessed punishment as six years’ confinement. This appeal
followed.
III. S AMUEL’S M OTION TO S UPPRESS
In his third, fourth, fifth, and sixth points, Samuel contends that the trial
court erred by refusing to suppress his oral statement to McMichael.
Specifically, Samuel contends that his statement was involuntary because it
was the result of “duress, coercion and improper promises”; that McMichael did
not honor his request to end the interview; and that his rights guaranteed under
Article 38.22 of the Texas Code of Criminal Procedure were violated when his
statement was not recorded. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon
2005). The State counters that Samuel has failed to preserve these claims for
our review because they do not comport with his objections made at trial. See
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that
it is well settled that the legal basis of a complaint raised on appeal cannot vary
from that raised at trial). The State also counters that the trial court did not err
by allowing McMichael to testify about Samuel’s statement.
12
We will assume without deciding that Samuel has preserved these points
for our review. We conclude that the question that is asked in each of
Samuel’s points is: Did the trial court err by determining that Samuel was not
in custody when McMichael interviewed him? See Beckwith v. United States,
425 U.S. 341, 346, 96 S. Ct. 1612, 1616 (1976) (reasoning that the need to
scrupulously honor a defendant’s invocation of Miranda rights does not arise
until created by the pressures of custodial interrogation); see also Davis v.
Allsbrooks, 778 F.2d 168, 170 (4th Cir. 1985) (precustodial assertion of right
to remain silent, even after Miranda warnings given, does not require
termination of interrogation). We answer this question in the negative and hold
that the trial court did not err in overruling Samuel’s motion to suppress his
statement.
The Fifth Amendment to the United States Constitution commands that
no person “shall be compelled in any criminal case to be a witness against
himself[.]” U.S. Const. amend. V; see also U.S. Const. amend. XIV. The
warnings set out by the United States Supreme Court in Miranda v. Arizona
were established to safeguard an uncounseled individual’s constitutional
privilege against self-incrimination during custodial interrogation. 384 U.S. 436,
442, 86 S. Ct. 1602, 1611 (1966). The Supreme Court has defined “custodial
interrogation” as “questioning initiated by law enforcement officers after a
13
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.
Unwarned statements obtained as a result of custodial interrogation may not
be used as evidence by the State in a criminal proceeding during its
case-in-chief. Id.; but see Harris v. New York, 401 U.S. 222, 225–26, 91
S. Ct. 643, 645–46 (1971) (holding that Miranda does not foreclose the use
of an unwarned statement to impeach a defendant’s credibility if the statement
was not coerced and was given voluntarily).
In Texas, Article 38.22 of the Texas Code of Criminal Procedure governs
the admissibility of statements made by a defendant during custodial
interrogation in a criminal proceeding. Section 3 provides that an oral
statement is admissible against a defendant in a criminal proceeding if, among
other things: (1) the statement was electronically recorded; (2) the defendant
was given the warnings set out in Section 2(a) before the statement was made
and it is included on the recording; and (3) the defendant “knowingly,
intelligently, and voluntarily” waived the rights set out in the warnings. Tex.
Code Crim. Proc. art. 38.22 § 3(a)(1)–(2). The warnings provided in Section
2(a) are virtually identical to the Miranda warnings, with one exception—the
warning that an accused “has the right to terminate the interview at any time”
as set out in Section 2(a)(5) is not required by Miranda. See Perillo v. State,
14
758 S.W.2d 567, 575 (Tex. Crim. App. 1988) (stating “that Miranda warnings
must precede a confession offered under Article 38.22, § 3(c)”). As with the
Miranda warnings, the warnings in Section 2(a) of Article 38.22 are required
only when there is custodial interrogation. Tex. Code Crim. Proc. art. 38.22
§§ 3(a), 5; Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007).
Our construction of “custody” for purposes of Article 38.22 is consistent with
the meaning of “custody” for purposes of Miranda. Herrera, 241 S.W.3d at
526.
When considering “custody” for Miranda purposes, we apply a
“reasonable person” standard: “[a] person is in ‘custody’ only if, under the
circumstances, a reasonable person would believe that his freedom of
movement was restrained to the degree associated with a formal arrest.”
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing
Stansbury v. California, 511 U.S. 318, 322–25, 114 S. Ct. 1526, 1528–30
(1994)). Our custody inquiry also includes an examination of all of the
objective circumstances surrounding the questioning. Dowthitt, 931 S.W.2d
at 255. The mere fact that an investigation takes place in a police station does
not make it custodial. Cedillos v. State, 250 S.W.3d 145, 152 (Tex.
App.—Eastland 2008, no pet.). And being the focus of the investigation does
15
not equate to being in custody. Meek v. State, 790 S.W.2d 618, 621 (Tex.
Crim. App. 1990) (citing Beckwith, 425 U.S. at 347, 96 S. Ct. at 1616).
A trial judge’s ultimate custody determination presents a mixed question
of law and fact. Herrera, 241 S.W.3d at 526 (citing Thompson v. Keohane,
516 U.S. 99, 112–13, 116 S. Ct. 457, 465 (1995)). Therefore, we afford
almost total deference to a trial judge’s custody determination when the
questions of historical fact turn on credibility and demeanor. Herrera, 241
S.W.3d at 526–27. Conversely, when the questions of historical fact do not
turn on credibility and demeanor, we will review a trial judge’s custody
determination de novo. Id. The defendant, not the State, carries the initial
burden of establishing that a statement was the product of custodial
interrogation. Id.
In this case, McMichael testified that Samuel came to the police station
on his own. McMichael said that he informed Samuel that he was not under
arrest and that he was free to terminate the interview and leave at any time.
Samuel signed a card indicating that he received warnings consistent with
Article 38.22—including that he had the right to terminate the interview at any
time. By McMichael’s account, the interview lasted between thirty and forty
minutes, and when the interview concluded, Samuel left the police station.
Even Samuel testified that he left when the interview concluded. Samuel never
16
testified that he did not feel free to leave the interview. Samuel only said that
he was intimidated by McMichael because Samuel perceived McMichael to be
“a pretty big guy.”
Affording almost total deference to the trial court’s determination
regarding McMichael’s credibility and demeanor, we hold that Samuel was not
in custody at the time he made his statement to McMichael. See Cedillos, 250
S.W.3d at 152 (holding that trial court did not err finding defendant was not in
custody when defendant was informed he was not under arrest, received
Miranda warnings, was told he could terminate the interview, and was allowed
to leave after the twenty- to thirty-minute interview). The trial court therefore
did not err by denying Samuel’s motion to suppress. We overrule Samuel’s
third, fourth, fifth, and sixth points.
IV. S UFFICIENCY OF THE E VIDENCE
In his first and second points, Samuel contends that the evidence is
legally and factually insufficient to support his conviction for forgery. We
disagree.
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
17
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at
414–15, 417. To reverse under the second ground, we must determine, with
some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson,
204 S.W.3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we
must give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson
v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d
at 246. Evidence is always factually sufficient when it preponderates in favor
18
of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d
at 417.
To support Samuel’s conviction for forgery, the State was required to
prove that Samuel, with the intent to defraud or harm another, passed a writing
that purported to be the act of another who did not authorize the act. See Tex.
Penal Code Ann. § 32.21; Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim.
App. 1985). The intent to defraud or harm another may be established by
circumstantial evidence, and the burden is on the prosecution to prove each and
every element of the offense charged. Williams, 688 S.W.2d at 488. In the
case of forgery, the culpable mental state requires proof of knowledge that the
instrument is forged. Id.
Viewing all of the evidence in the light most favorable to the prosecution,
the record reveals that Samuel admitted to McMichael that he had cashed the
check alone because he needed money to pay bills and that there was never a
woman claiming to be Christakis who accompanied him to the convenience
store to cash the check. There is no evidence that anyone but an employee
ever accessed the check that was cashed. Samuel had access to the check.
Christakis testified and signed affidavits that she never received the first check.
Samuel’s supervisor testified that Samuel originally denied ever knowing
anything about the check. The jury could have reasonably concluded that this
19
statement to Maceachran and his changing statement to McMichael showed a
consciousness of guilt. See Lee v. State, 866 S.W.2d 298, 302 (Tex.
App.—Fort Worth 1993, pet. ref’d) (holding that lying to a neighbor about a
foul smell, along with other factors, showed defendant’s guilt and awareness
of the crime); see also Couchman v. State, 3 S.W.3d 155, 163–64 (Tex.
App.—Fort Worth 1999, pet. ref’d) (holding that jury could reasonably conclude
that defendant lied because he had something to hide and changing his story
was evidence of his consciousness of guilt). The record also shows that
Samuel’s identification and thumbprint were used to cash the check and no
other person’s identification or thumbprint were ever recorded. Therefore, a
rational trier of fact could have found, beyond a reasonable doubt, that Samuel
committed the essential elements of forgery. Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Clayton, 235 S.W.3d at 778. We hold that the evidence is
legally sufficient to support Samuel’s conviction and overrule his first point.
Furthermore, we conclude that the evidence demonstrating Samuel’s guilt
is not so weak that the jury’s determination is clearly wrong and manifestly
unjust and that there does not exist conflicting evidence that so greatly
outweighs the evidence supporting his conviction that the jury’s determination
is manifestly unjust. The evidence supporting the factual sufficiency of
Samuel’s conviction includes his admission to police that he cashed the check
20
alone because he needed the money. Evidence that he did cash the check
includes: Samuel had access to the check, Samuel admitted familiarity with the
check, and Samuel acknowledged cashing the check using his own
identification.
As alleged contrary evidence, Samuel contends that there is ample
evidence to support his story to police and the jury that he was performing a
customer service and that he actually did accompany Christakis to the
convenience store where she went into the store with him as he cashed the
check for her. But Samuel himself testified that Christakis was not the woman
he claimed to have helped. Christakis testified that she had never seen Samuel
before trial. Furthermore, there was testimony from both McMichael and
Maceachran that Samuel had either lied about ever seeing the check or had
admitted that he lied about a woman accompanying him to the store and that
he cashed the check because he was desperate for money. There was also
additional testimony from McMichael that Samuel asked to pay the money back
in order to make the charges “go away.” The jury could have determined that
Samuel made up the story about a woman accompanying him to the
convenience store and that he did in fact cash the check because he needed the
money. Giving due deference to the jury’s determinations, particularly those
determinations concerning the weight and credibility of the evidence, we hold
21
that the evidence preponderates in favor of Samuel’s conviction. Steadman,
280 S.W.3d at 247; see Watson, 204 S.W.3d at 417. Thus, we hold that the
evidence is factually sufficient to support Samuel’s conviction and overrule his
second point.
V. C ONCLUSION
Having overruled each of Samuel’s six points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 25, 2010
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