Edward Hill v. the State of Texas ( 2021 )

NO. 12-20-00154-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
EDWARD HILL, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Edward Hill appeals the trial court’s denial of his motion for forensic DNA testing filed
pursuant to Texas Code of Criminal Procedure Chapter 64. In five issues, Appellant challenges
(1) his counsel’s effectiveness, (2) the trial court’s failure to order DNA testing on a latex glove,
and (3) the trial court’s failure to consider (a) the results of DNA testing on the murder weapon,
(b) his claim that identity is an issue in the case, and (c) his right to due course of law in
determining whether the glove should be tested. We affirm.
BACKGROUND
Appellant was convicted of capital murder and sentenced to imprisonment for life in
connection with the 1999 robbery and shooting death of convenience store operator Bo Hinton.
We affirmed the conviction in Hill v. State, No. 12-03-00020-CR, 2004 WL 2158030 (Tex.
App.—Tyler Sept. 22, 2004, pet. ref’d) (not designated for publication). In our legal sufficiency
analysis in Hill, we summarized the offense facts as follows:
In the instant case, both eyewitness testimony and DNA evidence link Appellant to the scene
of the crime during the time frame in which the crime was committed. Curtis Lowe testified
that he saw Andrews and two black males approaching Loving’s Food Store as he was leaving
the store at approximately 8:30 a.m. on August 18, 1999. Christina Carillo, a store employee,
arrived for work before 9:00 a.m. but did not enter the store because she observed through the
window that Hinton was inside fighting with two other individuals. Brenda London, Angela
Hood, and Leo Henry testified that, shortly after 9:00 a.m., they saw three black males running
away from Loving’s Food Store.
With the aid of information provided by witnesses, Tyler police officers proceeded to the home
of Andrews’s mother, Betty Andrews. At about this same time, police arrived at Loving’s
Food Store to find Hinton bleeding to death from five gunshot wounds. When the officers
arrived at the Andrews home, they found Appellant, Davis, and Andrews. When Patrolman
Robert Matthews of the Tyler Police Department approached the three men, who were
standing in the yard, Appellant fled. Other Tyler police officers pursued and captured
Appellant. Patrol Officer Luis Correa saw Appellant drop a bloody tee shirt as he fled. Officer
Correa also saw Appellant take a large sum of cash out of his pocket along with a latex glove
and drop them three or four feet from where he was subsequently apprehended.
Hinton’s blood was found on the tennis shoes Appellant was wearing at the time of his arrest.
Bob Henderson, a forensic consultant specializing in blood stain pattern analysis and crime
scene reconstruction, testified that the blood on the tennis shoes was consistent with impact
spatter, which occurs at close range when a victim’s blood is being spilled. He also testified
that there were blood spatters on the shorts Appellant was wearing. He testified that these
blood spatters would put the individual wearing the shorts and tennis shoes in very close
proximity to Hinton when he was shot.
Id. at *2. Hinton’s DNA was found on the clothing and tennis shoes Appellant was wearing at
the time of his arrest, the shirt police officers saw him wearing when they approached and
dropping just before his arrest, and the revolver found on the path where the individuals were
seen fleeing the crime scene. Id. at *3-4. No fingerprints were found on the revolver. Id. at *3.
Prior to the offense, Appellant and his codefendants knew that Hinton would likely be armed and
they would need a gun to complete the robbery. Id. at *5.
After his conviction, Appellant filed numerous applications for writ of habeas corpus,
which were denied or dismissed, and his motion for forensic DNA testing of (1) the .22 caliber
revolver admitted into evidence at trial and believed to be the murder weapon and (2) the latex
glove, also admitted into evidence, that Appellant removed from his pocket and discarded just
before his arrest. The trial court appointed attorney Mitch Adams to represent Appellant and
requested a report from Adams regarding Appellant’s motion. The court ordered the State to
deliver to the court any physical evidence that might be subject to DNA testing or a written
explanation of why the State could not deliver the evidence to the court.
The State filed a response stating that because the glove and revolver were admitted into
evidence, they were not in the State’s possession. Upon investigation, the State determined that
the district clerk’s office had possession of the glove. However, after inquiring of the district
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clerk’s office, the Tyler Police Department, and the Smith County Sheriff’s Office, the State
concluded that the revolver was either misplaced or destroyed. The State further asserted that
Appellant’s motion does not show his entitlement to the testing of either item under Chapter 64.
Appellant’s counsel did not file a response. Appellant notified the trial court that he wished to
proceed pro se, and the court permitted him to do so.
After taking judicial notice of the file, the State’s response, and Appellant’s motion and
documents, the trial court found that Appellant failed to meet his burden of proof under Article
64.03(a) 1 for two reasons. First, the court found that the revolver was not preserved and was
unavailable for testing. 2 Next, the court found that Appellant failed to establish by a
preponderance of the evidence that if exculpatory results were obtained from the glove, he would
not have been convicted. 3 Accordingly, the court denied Appellant’s motion for DNA testing.
This appeal followed.
DENIAL OF DNA TESTING MOTION
In Appellant’s first issue, he argues that the trial court erred by failing to order DNA
testing on the latex glove.
Standard of Review and Applicable Law
There is no freestanding due process right to DNA testing, and the task of fashioning
rules to harness DNA’s power to prove innocence without unnecessarily overthrowing the
established system of criminal justice belongs primarily to the legislature. Ramirez v. State, 621
S.W.3d 711, 717 (Tex. Crim. App. 2021). The Texas Legislature created a process for such
testing in Chapter 64. See id.Under Chapter 64, the convicting court must order DNA testing only if the court finds
that
1. the evidence “still exists and is in a condition making DNA testing possible”;
2. the evidence “has been subjected to a chain of custody sufficient to establish that it has
not been substituted, tampered with, replaced, or altered in any material respect”;
1
TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (West 2018).
2
See id. art. 64.03(a)(1)(A)(i) (requiring that evidence exist and be in a condition making DNA testing
possible).
3
See id. art. 64.03(a)(2)(A).
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3. “there is a reasonable likelihood that the evidence contains biological material suitable
for DNA testing; and”
4. “identity was or is an issue in the case[.]”
Id.; TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1). Additionally, the convicted person must
establish by a preponderance of the evidence that
1. he “would not have been convicted if exculpatory results had been obtained through
DNA testing; and”
2. “the request for the proposed DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice.”
Ramirez, 621 S.W.3d at 717-18; TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2).
In reviewing a judge’s ruling on a Chapter 64 motion, we give almost total deference to
the judge’s resolution of historical fact issues supported by the record and application of law to
fact issues turning on witness credibility and demeanor. Ramirez, 621 S.W.3d at 718. We
consider all other application of law to fact questions de novo. Id.
Analysis
Appellant argues that he met his burden under Chapter 64 regarding the testing of the
glove. He contends that a DNA test showing an absence of Hinton’s DNA on the glove would
exculpate him as the shooter, resulting in a reasonable probability that he would not have been
prosecuted for capital murder. We disagree.
In cases involving accomplices, a defendant can meet his burden under Article
64.03(a)(2)(A) only if he can show that testing, if exculpatory, will establish that he did not
commit the crime as either a principal or a party. Id. at 723. “A person is criminally responsible
for an offense committed by the conduct of another if . . . acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense[.]” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2021). Further,
[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed
by one of the conspirators, all conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the carrying out of the
conspiracy.
Id. § 7.02(b) (West 2021).
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In this case, a DNA test on the glove failing to reveal the presence of Hinton’s DNA
might tend to show that the shooter was not wearing the glove on his shooting hand at the time of
the shooting, but it would not establish Appellant’s innocence. First, it would not show that
Appellant was not the shooter, as he contends. The evidence shows that no fingerprints were
found on the revolver, which supports the theory that the shooter was wearing a glove when he
shot Hinton. But Appellant could have shot Hinton wearing a different glove on his shooting
hand and discarded it elsewhere. Furthermore, if testing on the glove failed to reveal the
presence of Hinton’s DNA, it would do little or nothing to exculpate Appellant as a party to the
offense. See id. §§ 7.02(a)(2), (b); Ramirez, 621 S.W.3d at 723.
An “exculpatory” or “favorable” DNA test result must be the sort of evidence that would
affirmatively cast doubt on the conviction’s validity; otherwise, DNA testing would simply
“muddy the waters.” Ex parte Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011). Given
the evidence that (1) Appellant and his codefendants knew they would need a gun to commit the
robbery, (2) two people were fighting Hinton just before he was shot, (3) Appellant fled when
the police arrived, (4) Appellant discarded a bloody shirt, a latex glove, and a large amount of
cash just before his arrest, and (5) Appellant’s clothes contained close range blood spatter
matching Hinton’s DNA, testing of the glove “might muddy the waters,” but could not produce
truly exculpatory evidence. See id.; Ramirez, 621 S.W.3d at 723 (based on evidence in case,
DNA testing of hats worn by two of several perpetrators could not produce true exculpatory
evidence regarding appellant). We conclude that Appellant has not established by a
preponderance of the evidence that he would not have been convicted if DNA testing on the
glove failed to reveal the presence of Hinton’s DNA, and, therefore, the trial court properly
denied his motion for DNA testing of the glove. See TEX. CODE CRIM. PROC. ANN. art.
64.03(a)(2); Ramirez, 621 S.W.3d at 717-18. Accordingly, we overrule Appellant’s first issue.
FAILURE TO CONSIDER PRIOR DNA TESTING
In Appellant’s second issue, he argues that the trial court erred by “failing to consider the
positive DNA test on [the revolver] to determine if [the glove] should be tested.” He contends
that “the results of the previous test establish that the victim [sic] DNA was on [the revolver] that
was destory [sic] or misplaced in the custody of the State and the trial court taking judicial notice
of this fact but refusing to consider its relevancy to the testing of [the glove] was a [sic] error.”
5
Appellant points to nothing in the record that indicates the court did not consider the prior testing
of the revolver in determining whether to order DNA testing on the glove, and we find no such
indication. See TEX. R. APP. P. 38.1(i) (requiring brief to contain clear and concise argument
with appropriate citations to authorities). Accordingly, we overrule Appellant’s second issue.
FAILURE TO CONSIDER IDENTITY CLAIM
In Appellant’s third issue, he argues that the trial court erred by failing to consider his
“identity claim for the testing of [the glove and revolver].” He asserts that he “raised the
question of identity in his Affidavit in Support of Motion for Forensic DNA Testing when he
stated, ‘the State of Texas indicted affiant as causing the death of the victim by shooting him
with a firearm. The State of Texas theory was affiant wore a latex glove during the robbery and
shooting death of the victim and used the latex glove found on affiant as evidence to support this
theory.’” Appellant contends that the trial court erred by failing to consider certain identity
related evidence adduced at trial and other identity related evidence subsequently presented in
his applications for writ of habeas corpus. Appellant’s argument fails for several reasons.
First, the trial court did not deny Appellant’s motion for DNA testing on the grounds that
identity was not and is not an issue in the case. See TEX. CODE CRIM. PROC. ANN. art.
64.03(a)(1)(c). This tends to show that the court considered identity an issue. Next, nothing in
the record indicates that the court did not consider all the evidence adduced at trial. Finally, the
court should not have considered the evidence presented in Appellant’s applications for writ of
habeas corpus. In making an Article 64.03(a)(2)(A) determination, we do not consider post-trial
factual developments. Ramirez, 621 S.W.3d at 723. Instead, we limit our review to whether
exculpatory results would alter the landscape if added to the mix of evidence that was available
at the time of trial. Id. Appellant argues that in addition to the trial evidence, the trial court
should have considered evidence presented in his post-conviction habeas applications. Because
this evidence was developed after Appellant’s trial, the trial court could not properly consider it
in ruling on Appellant’s DNA testing motion. See id. For all of these reasons, we overrule
Appellant’s third issue.
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FAILURE TO CONSIDER DUE COURSE OF LAW
In Appellant’s fourth issue, he argues that the trial court erred by failing to consider his
right to due course of law, which, he contends, was violated by the State’s “failure to preserve
material evidence [the revolver] for the testing of [the glove].” Appellant does not explain the
relevance of the missing status of the revolver, which was previously subjected to DNA testing,
to the issue of whether the glove should be tested, and we see none. See TEX. R. APP. P. 38.1(i).
Accordingly, we overrule Appellant’s fourth issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Appellant’s fifth issue, he argues that he received ineffective assistance of counsel
during his DNA testing proceedings.
Standard of Review and Applicable Law
A convicted person is entitled to counsel during a proceeding under Chapter 64. TEX.
CODE CRIM. PROC. ANN. art. 64.01(c) (West 2018). A convicting court must appoint counsel for
a convicted person if he informs the court that he wishes to submit a motion under Chapter 64,
the court finds reasonable grounds for a motion to be filed, and the court determines that the
person is indigent. Id.
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must “show that counsel’s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
7
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id. An appellant claiming ineffective assistance of counsel must affirmatively prove
prejudice from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex.
Crim. App. 1999).
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is
Appellant’s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any
allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly
evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002).
Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove
both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong,
25 S.W.3d at 712.
Analysis
The record in this case shows that Appellant filed his motion for DNA testing and
supporting affidavit on July 25, 2018. In the motion, Appellant requested that the trial court
appoint counsel. The State filed its response on October 29. On December 26, the trial court
entered an order stating the following:
This Court previously appointed attorney Mitch Adams to represent Petitioner Edward Hill in
regard to his request for DNA testing. The Court also ordered the State of Texas to review its
records for any physical evidence which might be subject to DNA testing which is still
available and within 60 days from this date, either deliver the evidence to the court along with
a description of the condition of the evidence or explain in writing why the State cannot deliver
the evidence to the Court. The State filed its response and served it on counsel for Petitioner on
October 29, 2018. The Court will consider the current motion filed by Petitioner and the
State’s response without a live hearing on January 18, 2019. Counsel for the State and
Petitioner should file any other materials they wish to be considered on or before January 11,
2019.
8
The record contains no indication that a hearing, live or otherwise, was held on January
18. On February 24, 2020, Appellant, apparently under the impression that the trial court denied
his DNA testing motion, filed a notice of appeal, motion to withdraw Adams as counsel, and
motion to proceed pro se. In his motion to proceed pro se, Appellant stated the following:
The Defendant has no desire to allow Attorney Mitch Adams or any other court appointed
attorney to represent him in this cause for appeal. Therefore the Defendant invoke [sic] Article
I Section 10 of the Texas Constitution as authority to represent himself in this matter. The
Defendant has education of the law in which he has recieve [sic] a Paralegal Certificate, also
the Defendant brings the Court to the attention that the Motion for Forensic DNA Testing was
filed by him Pro Se showing additional support of the Defendant [sic] ability to act on his own
regarding this matter.
On April 6, 2020, the trial court entered its order denying Appellant’s motion for DNA
testing. In the order, the court provided the following procedural summary:
Petitioner Edward Hill filed a request for DNA testing. The Court, after considering such
motion, appointed attorney Mitch Adams to represent Petitioner Hill. The Court notified
Petitioner’s counsel of the appointment and requested a report regarding Petitioner’s request.
The Court ordered the State’s counsel to review its records and deliver the available evidence
to the Court. The State filed its response identifying the evidence that remained in the custody
of the court reporter or Tyler Police Department. Petitioner’s counsel did not file a response
and Petitioner has notified the Court that he wishes to proceed pro se, which the Court permits.
If Petitioner decides he wishes to have counsel appointed at a later date, Petitioner must notify
the Court of that decision. The Court takes judicial notice of the file, the State’s Response, and
Petitioner’s written motion and other documents.
On appeal, Appellant argues that he received ineffective assistance of counsel because
Adams failed to (1) “challenge the State of Texas [sic] response,” (2) “represent Appellant in the
entire proceeding of the DNA hearing,” and (3) “file Notice of Appeal after the trial court deny
[sic] Appellant [sic] Pro Se DNA motion.” He contends counsel’s deficient performance
prejudiced him by causing the trial court to fail to consider the prior DNA testing on the
revolver, fail to consider Appellant’s identity claim, fail to consider Appellant’s right to due
course of law, and ultimately fail to order DNA testing on the glove. We disagree.
Initially, we observe that the courts of appeals are divided regarding the cognizability of
an ineffective assistance of counsel claim in an appeal from a trial court’s ruling under Chapter
64. See, e.g., Hooks v. State, 203 S.W.3d 861, 865 (Tex. App.—Texarkana 2006, pet. ref’d)
(claim not cognizable); Hughes v. State, 135 S.W.3d 926, 927-28 (Tex. App.—Dallas 2004, pet.
9
ref’d) (same); In re Beasley, 107 S.W.3d 696, 697 (Tex. App.—Austin 2003, no pet.) (same);
Morris v. State, 110 S.W.3d 100, 103 (Tex. App.—Eastland 2003, pet. ref’d) (same); Ard v.
State, 191 S.W.3d 342, 344-46 (Tex. App.—Waco 2006, pet. ref'd) (claim cognizable). In Bell
v. State, the court of criminal appeals expressly declined to decide the issue, instead assuming
arguendo that the claim could be raised and overruling it on its merits. 90 S.W.3d 301, 307-08
(Tex. Crim. App. 2002). In Ex parte Baker, the court of criminal appeals held that the post-
conviction writ of habeas corpus was not available for the applicant’s claim of ineffective
assistance of counsel in a Chapter 64 proceeding but observed that other remedies may be
available in such cases. 185 S.W.3d 894, 897-98 (Tex. Crim. App. 2006). Specifically, the court
noted that “in some cases, a convicted person may get relief from defective representation by
counsel through an appeal under that chapter.” Id. The court further observed that “Chapter 64
does not prohibit a second, or successive, motion for forensic DNA testing[.]” Id.We need not decide whether Appellant’s ineffective assistance claim is cognizable
because, even if it is, he fails to meet his burden of establishing that Adams’s performance was
deficient and his deficient performance prejudiced Appellant’s case. See Strickland, 466 U.S. at
687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Regarding Adams’s failure to challenge the
State’s response, the record does not show why Adams did not do so. See Bone, 77 S.W.3d at
833 (rarely is record on direct appeal sufficiently developed to fairly evaluate merits of
ineffectiveness claim). Moreover, Appellant does not specify any part of the State’s response
that Adams should have challenged. See TEX. R. APP. P. 38.1(i); see also Doyle v. State, 875
S.W.2d 21, 23 (Tex. App.—Tyler 1994, no pet.) (“failure to object to that which is
unobjectionable is not ineffective assistance of counsel”). Therefore, Appellant fails to establish
that Adams’s performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;
Tong, 25 S.W.3d at 712.
Furthermore, even if Adams’s performance was deficient because of his failure to
challenge the State’s response, Appellant fails to show how the deficient performance prejudiced
his case by, as he contends, causing the trial court to fail to consider the prior DNA testing on the
revolver, fail to consider Appellant’s identity claim, fail to consider Appellant’s right to due
course of law, and ultimately fail to order DNA testing on the glove. See id. As we observed
above, nothing in the record indicates that the trial court did not consider everything it could
properly consider in making its decision on Appellant’s motion. Furthermore, Appellant fails to
10
demonstrate how any challenge to the State’s response could have resulted in the trial court’s
granting of Appellant’s motion.
Regarding Adams’s failure to file a notice of appeal, we observe that Appellant filed his
motion to withdraw Adams as counsel, motion to proceed pro se, and notice of appeal before the
trial court denied the motion for DNA testing. Because the trial court granted Appellant’s
motions to withdraw Adams and proceed pro se before it denied the DNA testing motion, it
would have been premature for Adams to file a notice of appeal during his representation of
Appellant. Consequently, his failure to do so cannot be considered deficient. Moreover, because
his notice of appeal was filed and considered timely, Appellant cannot establish prejudice in this
regard. Because Appellant fails to show that his trial counsel’s performance was deficient, or
how his counsel’s performance prejudiced his case, he fails to meet his burden of proving
ineffectiveness of counsel, if such a claim is cognizable here. See id. Accordingly, we overrule
Appellant’s fifth issue.
DISPOSITION
Having overruled Appellant’s first through fifth issues, we affirm the trial court’s order
denying his motion for forensic DNA testing.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 20, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 20, 2021
NO. 12-20-00154-CR
EDWARD HILL,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 241-81325-99)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order denying Appellant’s motion for forensic DNA testing.
It is therefore ORDERED, ADJUDGED and DECREED that the order
denying Appellant’s motion for forensic DNA testing of the court below be in all things
affirmed, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.