Matthew Erik Luvano A/K/A Matthew Erik Flores v. State ( 2016 )

Opinion filed April 21, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00122-CR
__________
MATTHEW ERIK LUVANO A/K/A
MATTHEW ERIK FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 18951B
MEMORANDUM OPINION
The jury found Matthew Erik Luvano a/k/a Matthew Erik Flores guilty of two
counts of indecency with a child. The jury returned a “true” verdict as to an
enhancement charge contained in each count. The jury assessed punishment at
confinement for life for the first count and confinement for twenty years and a
$10,000 fine for the second count. The trial court sentenced Appellant accordingly
and ordered the sentences to be served concurrently. Appellant presents four issues
on appeal. We affirm.
I. The Charged Offenses
The grand jury indicted Appellant for indecency with a child by contact and
indecency with a child by exposure. The indictment alleged that on or about
March 1, 2012, Appellant intentionally and knowingly, with the intent to arouse or
gratify his sexual desire, engaged in sexual contact with and exposed himself to A.L,
a child younger than seventeen years of age. Each count further alleged that
Appellant had been previously convicted of felony sexual assault. A person commits
the offense of indecency with a child by contact if the person, with the intent to
gratify the sexual desire of any person, engages in sexual contact with a child
younger than seventeen years of age. TEX. PENAL CODE ANN. § 21.11(a)(1), (c)
(West 2011). The offense is a felony of the second degree, but if the States proves
that the defendant had a prior conviction for the offense of sexual assault, then the
defendant must receive a punishment of confinement for life. Id. § 21.11(d),
§ 12.42(c)(2) (West Supp. 2015). A person commits the offense of indecency with
a child by exposure if the person exposes any part of his genitals to a child younger
than seventeen years of age, knowing the child is present, with the intent to arouse
or gratify the sexual desire of any person. Id. § 21.11(a)(2)(A). The offense is a
felony of the third degree, but if the States proves that the defendant had a prior
conviction for the offense of sexual assault, then the defendant shall be punished for
a felony of the second degree. Id. §§ 21.11(d), 12.42(a).
II. Evidence at Trial
Appellant is the paternal uncle of A.L., the victim. A.L. was eight years old
at the time of the offense. A.L. made an outcry to her counselor, Karla Stephens,
while Stephens drove her home after a counseling session. A.L. told Stephens that
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her “Uncle Matt” put his hands in A.L.’s panties, touched her “private,” kissed her
mouth, and touched her butt. Stephens reported the allegations to A.L.’s mother.
A.L.’s mother questioned A.L. about the allegations. A.L. told her mother
that Appellant had exposed himself to her and that Appellant had said he liked A.L.
“as a girlfriend.” A.L.’s mother testified that A.L. told her some of the same things
that Stephens had mentioned. A.L. testified about an instance when Appellant kissed
her neck and touched her “private part.” A.L. also indicated that the “private part”
she referred to was her “pee pee.” A.L.’s mother reported A.L.’s allegations to the
Abilene Police Department.
Detective Stacey Cisneros of the Abilene Police Department investigated the
allegations of sexual misconduct. Detective Cisneros went to Appellant’s house to
request an interview. Appellant told Detective Cisneros that he did not have a car
and had to be at work later that day, but he agreed to the interview and rode to the
Law Enforcement Center (LEC) with Detective Cisneros. Detective Cisneros read
Appellant his Miranda1 warnings and proceeded to interview him. The interview
lasted for a little over two hours. Detective Cisneros testified that Appellant was not
under arrest or in custody and that he was free to leave at any point. At the end of
the interview, Detective Cisneros offered to take Appellant back home or to call
Appellant’s mother and ask her to come get Appellant.
III. Issues Presented
In his first issue, Appellant argues that the trial court erred when it admitted
into evidence his statements taken by law enforcement during the interview because
he did not voluntarily give the statements. In his second issue, Appellant argues that
the trial court erred when it admitted evidence of his extraneous bad acts committed
against A.L. Appellant argues in his third issue that the trial court erred when it
1
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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excluded from evidence some of A.L.’s counseling records. In his final issue,
Appellant argues that the trial court erred when it denied his motion for directed
verdict as to the enhancement allegation. Appellant argues alternatively, as part of
his final issue, that the use of the prior conviction against him constituted cruel and
unusual punishment.
IV. Standards of Review
We review Appellant’s first, second, and third issues for an abuse of
discretion. See Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1996) (op.
on reh’g) (first issue); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)
(second issue); Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006) (third
issue). Under an abuse of discretion standard, we will reverse the trial court’s
decision only if it acted arbitrarily, unreasonably, or without reference to any guiding
rules or principles. See Montgomery v. State, 810 S.W.2d 372, 390–92 (Tex. Crim.
App. 1991). We will uphold the trial court’s ruling if it is within the zone of
reasonable disagreement. Id. at 391. Appellant’s fourth issue, a challenge to a trial
court’s ruling on a motion for directed verdict, is the same as a challenge to the
sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App.
1990). We will address Appellant’s fourth issue first and then sequentially review
his other three issues.
V. Analysis
A. Issue Four: Directed Verdict and Cruel and Unusual Punishment
Appellant argues that there was insufficient evidence to support the jury’s
finding of “true” to the enhancement allegation. Alternatively, Appellant argues that
even if the evidence was sufficient, the use of the prior conviction for an enhanced
punishment range amounted to cruel and unusual punishment under the Eighth
Amendment.
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1. Sufficiency of the Evidence
We review a challenge to the sufficiency of the evidence under the standard
of review in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). When we review a trial court’s denial of a motion
for directed verdict, we must examine all of the evidence in the light most favorable
to the verdict and determine whether, based on that evidence and any reasonable
inferences from it, any rational trier of fact could have found the essential elements
of the enhancement allegations beyond a reasonable doubt. See Young v. State, 14
S.W.3d 748, 753 (Tex. Crim. App. 2000); see also Jackson, 443 U.S. at 319.
In order to prove that a defendant has prior convictions for enhancement
purposes, the State must prove that (1) a prior conviction exists and (2) the defendant
is linked to the prior conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim.
App. 2007). One of the most common ways to link the defendant to a prior judgment
is through a fingerprint expert. Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App.
1986). State’s Exhibit No. 9 contained certified judgments for burglary of a
building, burglary of a motor vehicle, and sexual assault committed by either
Matthew Erik Luvano or Matthew Luvano.2 At the end of State’s Exhibit No. 9,
there were fingerprints of “Matthew Erik Luvano.” State’s Exhibit No. 10 contained
copies of fingerprints of “Matthew Erik Luvano” as well as a certified copy of a
judgment revoking community supervision. Both exhibits also contained a picture
of the convicted person, and the trial court admitted both without objection.
The State called Wallace McDaniel to testify about fingerprint identification.
McDaniel had testified as an expert in fingerprint identification “[m]any times”
before and had taken basic, intermediate, and advanced classes related to fingerprint
analysis and identification. He examined the fingerprints from State’s Exhibit Nos. 9
2
Judgments for burglary of a building and burglary of a motor vehicle were entered against
“Matthew Erik Luvano,” while the judgment for sexual assault was entered against “Matthew Luvano.”
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and 10 and compared them to the fingerprints in State’s Exhibit No. 11, which
contained fingerprints taken from Appellant the day before the punishment phase of
the trial began. McDaniel said that the fingerprints from all three exhibits came from
the same person, and he identified that person as Appellant.
In addition to McDaniel’s testimony that Appellant’s fingerprints and the
person’s fingerprints as shown in the certified judgments were a match, State’s
Exhibit No. 9, which contained the certified judgments that pertained to the
enhancement paragraphs, also contained photographs that the jury was able to
compare to Appellant. Matching a photograph of the defendant in a penitentiary
packet or certified judgment to the defendant at trial is sufficient evidence that the
defendant at trial is the same person as that in the prior judgment of conviction.
Littles v. State, 726 S.W.2d 26, 31–32 (Tex. Crim. App. 1987) (op. on reh’g).
We have reviewed the evidence in the light most favorable to the verdict, and
we hold that the jury could have found beyond a reasonable doubt that Appellant
had previously been convicted of the offense of sexual assault as alleged in the
enhancement paragraph under each count in the indictment. Therefore, we overrule
Appellant’s assertion that the trial court erred when it denied his motion for directed
verdict as to the enhancement allegation.
2. Cruel and Unusual Punishment
Appellant argues that, because the victim and the victim’s mother from the
prior sexual assault conviction testified in his favor, it was improper to use the prior
conviction for enhancement purposes. He also argues that the prior conviction
should not have been used because it occurred more than twenty years ago.
Appellant, however, presents no authority in support of those arguments, and we
have found none.
The Eighth Amendment to the United States Constitution prohibits sentences
that are “grossly disproportionate” to the offense for which a defendant has been
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convicted. Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet.
ref’d) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). When a sentence falls
within the range provided by the legislature, it is generally not “grossly
disproportionate” to the offense committed and should not be disturbed on appeal.
See, e.g., Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Jordan v.
State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). The statutory range of
confinement for indecency with a child by contact is punishment by imprisonment
for two to twenty years. PENAL §§ 21.11(d), 12.33(a). However, when enhanced by
a previous conviction of sexual assault, that offense becomes punishable by
imprisonment for life. Id. § 12.42(c)(2). In each count, the jury found true as to the
enhancement allegation of sexual assault, which resulted in a mandatory increase of
the sentence in the first count to confinement for life and an increase in the maximum
term of confinement for the second count from ten to twenty years. Id. § 12.42(a),
(c)(2). Appellant’s sentences fall within the statutory range set out by the legislature.
For that reason, we decline to conclude that Appellant’s punishment was cruel and
unusual. Additionally, we have previously held that the automatic imposition of a
life sentence under Section 12.42(c)(2) “does not constitute a disproportionate
sentence nor one that constitutes cruel and unusual punishment under either the
United States or Texas Constitutions.” Jennings v. State, No. 11-10-00233-CR,
2011 WL 6307839, at *2 (Tex. App.—Eastland Dec. 15, 2011, pet. ref’d) (mem. op.,
not designated for publication). We overrule Appellant’s fourth issue.
B. Issue One: Voluntary Statement
Appellant argues that the trial court erred when it admitted allegedly
involuntary statements that he made to law enforcement personnel when he was at
the LEC. Appellant contends that (1) his lack of independent transportation to and
from the LEC, (2) the denial of his request for a break during the interview, and
(3) Detective Cisneros’s interview techniques, all rendered his statements
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involuntary and inadmissible. Once a defendant raises the issue of voluntariness of
a statement, the trial court must hold a hearing outside the presence of the jury on
the admissibility of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6
(West Supp. 2015); Jackson v. Denno, 378 U.S. 368, 380 (1964). The burden is on
the State to prove, by a preponderance of the evidence, that the statement was
voluntarily made. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999).
A statement is involuntary if there was official, coercive conduct of such a
nature that any statement obtained was unlikely to have been the product of an
essentially free and unconstrained choice by its maker. Alvarado v. State, 912
S.W.2d 199, 211 (Tex. Crim. App. 1995). To determine if the statement was
voluntary, the reviewing court must examine the totality of the circumstances
surrounding the acquisition of the statement. Colorado v. Connelly, 479 U.S. 157,
176 (1986). Without coercive police conduct causally related to the statement, there
is no basis for concluding any state actor has deprived a criminal defendant of due
process of law. Id. at 164. The ultimate question to determine voluntariness is
“whether the suspect’s will was overborne” by the conduct of the state actor.
Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).
Detective Cisneros investigated Appellant as a suspect after A.L. made the
outcry that Appellant had sexually abused her. Detective Cisneros arrived at
Appellant’s home and requested an interview. Appellant told Detective Cisneros
that he did not have independent transportation and that he needed to be at work later
that day, but he agreed to go to the LEC for an interview. Once at the LEC,
Detective Cisneros read Appellant his Miranda warnings, which Appellant waived,
and Appellant proceeded with the interview. At the end of the interview,
Detective Cisneros offered to take Appellant back home, but Appellant instead chose
to call his mother for a ride.
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Detective Cisneros testified that Appellant was not in custody and was free to
leave at any time. At the beginning of the interview, Detective Cisneros indicated
to Appellant that he had some “pretty important” questions and that “there’s a lot
that’s been alleged.” Detective Cisneros told Appellant that it was “the most
important time . . . in your life.” Detective Cisneros said that, in light of the
importance of the interview, he did not “want to rush through it.” Therefore,
Appellant knew the importance of the interview from the beginning, and he was free
to leave at any time; however, he chose to stay and complete the interview.
Appellant also asserts that, “Detective Cisneros took [his] responses to
statements which Cisneros had kept deliberately vague and compound and
[Detective Cisneros] presented them to the jury as admissions of the specific acts
alleged in the indictment.” Detective Cisneros testified at trial and was subjected to
both direct and cross-examination. Furthermore, the jury watched a redacted version
of the interview. Accordingly, we will defer to the factfinder’s conclusion regarding
the weight, if any, to give to Detective Cisneros’s trial testimony regarding his
interview with Appellant. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. In
light of the foregoing, we cannot conclude that the trial court abused its discretion
when it found that Appellant’s statements to law enforcement personnel were made
voluntarily. See Evans v. State, No. 11-13-00296-CR, 2015 WL 1501663, at *6
(Tex. App.—Eastland Mar. 31, 2015, pet. ref’d) (mem. op., not designated for
publication). We overrule Appellant’s first issue.
C. Issue Two: Admission of Extraneous Bad Acts
Appellant argues that the trial court abused its discretion when it admitted
evidence of an alleged prior bad act committed by Appellant against A.L. Appellant
complains that A.L. should not have been allowed to testify about an incident in
which Appellant had kissed her several years prior to the acts alleged in the
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indictment. Appellant cites Rules 403 and 404 of the Texas Rules of Evidence in
support of his argument.
Evidence of an individual’s bad character is generally not admissible to show
that he acted in conformity therewith. See TEX. R. EVID. 404; Montgomery, 810
S.W.2d at 386–88. But, when a defendant is charged with indecency with a minor
under seventeen years of age, evidence of extraneous acts may be admissible under
Article 38.37 of the Code of Criminal Procedure. CRIM. PROC. art. 38.37.
Article 38.37 provides in part that evidence of other crimes, wrongs, or acts
committed by the defendant against the child who is the victim of the alleged offense
shall be admitted for its bearing on relevant matters, such as the state of mind of the
defendant and the child and the previous and subsequent relationship of the
defendant and child. Id. art. 38.37, § 1(b). That evidence may, however, still be
excluded under Texas Rule of Evidence 403 if its probative value is substantially
outweighed by its prejudicial value. Walker v. State, 4 S.W.3d 98, 102–03 (Tex.
App.—Waco 1999, pet. ref’d).
The Texas Court of Criminal Appeals has noted that “Rule 403 creates a
presumption of admissibility of all relevant evidence and authorizes a trial judge to
exclude such evidence only when there is a clear disparity between the degree of
prejudice of the offered evidence and its probative value.” Mozon v. State, 991
S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Joiner v. State, 825 S.W.2d 701,
708 (Tex. Crim. App. 1992)); see also Massey v. State, 933 S.W.2d 141, 154 (Tex.
Crim. App. 1996) (because Rule 403 favors the admissibility of relevant evidence,
there is a presumption that relevant evidence will be more probative than
prejudicial).
Appellant argued both at trial and on appeal that evidence of the extraneous
act was irrelevant because his theory at trial was that the alleged incident never
occurred at all. Therefore, Appellant argues that evidence of the extraneous act had
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no bearing on his state of mind, motive, or intent. However, evidence of the prior
occurrence of sexual misconduct by Appellant with A.L. was highly probative
evidence showing that he had previous inappropriate contact with A.L., which
related directly to “the previous and subsequent relationship between the defendant
and the child.” CRIM. PROC. art. 38.37, § 1(b)(2). Such evidence is the type of
evidence that Article 38.37 of the Code of Criminal Procedure deems relevant and
admissible. See id. art. 38.37, § 1(b).
On the other hand, admission of the extraneous act was prejudicial, as nearly
all evidence is. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007) (noting
that “[v]irtually all evidence that a party offers will be prejudicial to the opponent’s
case, or the party would not offer it”). In this case, however, the trial court concluded
that the “evidence [was] more probative than prejudicial.” We cannot conclude that
the trial court’s conclusion fell outside the zone of reasonable disagreement. See
Montgomery, 810 S.W.2d at 391; see also Bradshaw v. State, 466 S.W.3d 875, 884
(Tex. App.—Texarkana 2015, pet. ref’d) (holding that the trial court did not abuse
its discretion by admitting testimony of extraneous offenses); Walker, 4 S.W.3d at
103 (holding that the probative value of extraneous offense evidence was not
substantially outweighed by its prejudicial value). Accordingly, the trial court did
not abuse its discretion when it admitted the evidence. We overrule Appellant’s
second issue.
D. Issue Three: Exclusion of the Victim’s Counseling Records
Appellant argues that the trial court abused its discretion when it excluded an
exhibit containing more than eighty pages of A.L.’s counseling records, Defendant’s
Exhibit No. Four, which Appellant characterized as relevant and probative
impeachment evidence. A trial court does not abuse its discretion if evidence
supports its decision to either admit or exclude evidence. Osbourn v. State, 92
S.W.3d 531, 538 (Tex. Crim. App. 2002). But if the decision of the trial court is “so
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clearly wrong as to lie outside that zone within which reasonable persons might
disagree,” then there is an abuse of discretion. McDonald v. State, 179 S.W.3d 571,
576 (Tex. Crim App. 2005). And appellate courts “may uphold a trial court’s ruling
on any legal theory or basis applicable to the case, but usually may not reverse a trial
court's ruling on any theory or basis that might have been applicable to the case, but
was not raised.” Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
The progress notes spanned a two-year period prior to the outcry and related
to counseling sessions with A.L. about her behavioral problems. Appellant initially
offered these progress notes as part of Defendant’s Exhibit No. 1, which contained
more than 350 pages of progress notes, but the trial court refused to admit such a
lengthy exhibit. The progress notes in Defendant’s Exhibit No. Four included notes
from the day that A.L. made the outcry to Stephens. Appellant asserts that the
entirety of the more than eighty pages, particularly “the progress notes from the
[counseling] session [A.L.] attended immediately before making her initial
accusation against Appellant, wherein it was recorded that A.L. ‘tries to manipulate
the situation often and likes seeing how far she can push boundaries,’” was
admissible as impeachment evidence. Trial counsel argued that the progress notes
would have allowed him to impeach A.L.’s credibility to show her mental
impairment or disability as well as her bias and motive to fabricate the sexual abuse
allegations against Appellant.
“A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness, or by
testimony in the form of an opinion about that character.” TEX. R. EVID. 608(a).
“But evidence of truthful character is admissible only after the witness’s character
for truthfulness has been attacked.” Id. And, when evidence of a character trait of
a witness is admissible, it must be in the form of reputation or opinion testimony.
TEX. R. EVID. 405(a)(1); Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998).
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At trial, Appellant called Greg Rake, the counselor at A.L.’s elementary school, who
was acquainted with A.L. On direct examination, he testified in regard to A.L.’s
reputation for truthfulness that, “if [A.L.] has done something that she knows there
are going to be consequences for, that she will attempt to tell things that are not
truthful in order to not receive those consequences or to get out of being in trouble
for making a bad choice.” He further testified that A.L.’s “reputation would be to
not tell the truth” in some situations.
A few days after Rake testified, trial counsel attempted to offer more than
eighty pages of progress notes. Before Rake testified, the trial court requested that
trial counsel limit the exhibit to three or four relevant documents. But trial counsel
did not explain how the more than eighty pages of progress notes evinced any
evidence that A.L. suffered mental impairment or disability. In fact, the notes and
testimony in his offer of proof indicated the opposite. Furthermore, trial counsel
also did not explain how the evidence in the progress notes showed a bias or motive
by A.L. to fabricate allegations against Appellant.
Trial counsel also attempted to use specific instances of information in the
progress notes rather than offer opinion or reputation testimony for the purpose of
impeachment. A party may not introduce evidence of specific past conduct of a
witness to prove conformity of character. TEX. R. EVID. 404; Robbins v. State, 88
S.W.3d 256, 259 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 386–
88); accord Mozon, 991 S.W.2d at 846; Tate, 981 S.W.2d at 192; Rankin v. State,
974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh’g). Under Rule 405(b),
specific instances of conduct may be permissible to present character evidence in
cases in which “a person’s character or character trait is an essential element of a
charge, claim, or defense.” TEX. R. EVID. 405(b). But Appellant has not explained
how A.L.’s character is an essential element of the State’s charge or an essential
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element of his defense. In addition, trial counsel never explained how the progress
notes were proper opinion or reputation impeachment testimony.
Appellant claimed that the progress notes were relevant and probative.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” TEX. R. EVID. 401. Evidence that is not relevant is
inadmissible. TEX. R. EVID. 402. Rule 403 presumes relevant evidence is admissible
unless there is a “clear disparity between the degree of prejudice of the offered
evidence and its probative value.” Mozon, 991 S.W.2d at 847 (quoting Joiner, 825
S.W.2d at 708); see also Massey, 933 S.W.2d at 154.
The trial court reviewed the more than eighty pages of progress notes, which
included the notes related to the day of the outcry and the individual notes from that
day. The trial court sustained the State’s objection to the admission of the progress
notes. The trial court ruled that the individual notes were “not sufficiently reliable
to be presented to the jury, and . . . it’s far more prejudicial than probative of anything
with regard to witness impeachment.” When trial counsel queried the trial court as
to the admissibility of the September 21, 2012 progress note, the trial court explained
that it had considered both options and stated, “I’m considering the fact that the
psychiatrist who’s been seeing this child for quite some time doesn’t see any
connection between the child’s conditions and any likelihood that the child would
manipulate” (emphasis added). The trial court determined that the records were
unreliable and more prejudicial than probative. In essence, the trial court found that
the records were irrelevant and were improper impeachment evidence. After a
review of the record, we cannot say that the trial court abused its discretion when it
excluded the progress notes. We overrule Appellant’s third issue.
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VI. Conclusion
We have reviewed the record and conclude that the trial court did not err when
it denied Appellant’s motion for directed verdict, when it admitted evidence of
Appellant’s extraneous bad act committed against A.L., or when it concluded that
Appellant’s statements to law enforcement were made voluntarily. We also hold
that Appellant’s punishment was not cruel and unusual. Finally, we hold that the
trial court did not abuse its discretion when it excluded, as unreliable and more
prejudicial than probative, the progress notes from A.L.’s counseling sessions.
VII. This Court’s Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
April 21, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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