Jose Antonio Nasipak v. the State of Texas ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00464-CR
Jose Antonio Nasipak, Appellant
v.
The State of Texas, Appellee
FROM THE 453RD DISTRICT COURT OF HAYS COUNTY
NO. CR-19-2739-E, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING
MEMORANDUM OPINION
Jose Antonio Nasipak was charged with thirty counts of possession with intent
to promote child pornography. See Tex. Penal Code § 43.26. Before trial, the State abandoned
two of the counts. At the end of the guilt-innocence phase, the jury found Nasipak guilty of all
twenty-eight remaining counts. Nasipak elected to have the trial court assess his punishment,
and the trial court sentenced him to twenty years’ imprisonment for each count, divided the
convictions into four groups with the convictions in each group being served concurrently,
and ordered the punishments for the four groups to be served consecutively. See id. §§ 12.33,
43.26(g); Tex. Code Crim. Proc. art. 42.08. In two issues on appeal, Nasipak contends that the
trial court erred by admitting extraneous-offense evidence. We will affirm the trial court’s
judgments of conviction.
BACKGROUND
The National Center for Missing and Exploited Children (the “Center”) received a
tip from an internet-service provider that two known images of child pornography had been
uploaded. Like all digital images, the two images had a unique identifying number called a
hash value that could not be altered. After verifying that the flagged material contained child
pornography, the Center identified the IP address, name, and email for the individual who
allegedly uploaded the images, and the individual associated with the images was Nasipak. The
Center forwarded the information to a task force with the Attorney General. After verifying that
the images were child pornography, the task force sent the information to the Hays County
Sheriff’s Office for further investigation.
A Sheriff’s Office detective obtained a search warrant to search Nasipak’s home.
When the search warrant was executed, the investigating officers seized Nasipak’s cellphone.
While the search warrant was being executed, Nasipak told some of the officers that he would
like to talk to them. One of the officers drove Nasipak to the Sheriff’s Office, and two detectives
interviewed him. The interview was recorded and admitted into evidence at trial. During the
interview, Nasipak admitted that he started collecting and sharing child pornography two years
before the interview and that he viewed the images and videos on his cellphone. Nasipak stated
that the majority of his collected child pornography was stored on his account with Dropbox,
which is an online file-storage service. Nasipak sorted the images and videos into folders named
as follows: all, preteen 10, little little, young, and sexy. Nasipak told the officers that he
“received child pornography from individuals” and “distributed it to” others by using two social-
media applications.
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Following the interview, the investigating officers searched Nasipak’s cellphone
and his Dropbox account and found child pornography in both. Nasipak was charged with
possessing with intent to promote twenty-eight images or videos of child pornography that were
in his Dropbox account. The indictment listed the unique hash value for each image or video.
During the trial, several law-enforcement officers from two law-enforcement
agencies testified regarding information that they received from the Center and regarding their
investigation in this case. In addition, the recording of Nasipak’s interview was admitted into
evidence and played for the jury. During a hearing held outside the presence of the jury, the
State explained that it was going to go through the images and videos serving as the basis for
the indictment but also explained that it wanted to introduce into evidence approximately 150
other images and several videos that were discovered on Nasipak’s Dropbox account and on his
cellphone. Although the State explained that it wanted to introduce these additional images and
videos, it related that it would only publish three items: one redacted image and two videos,
including one referred to as video record three. Nasipak objected and argued that the prejudicial
value of the evidence outweighed any probative value and that he had not received proper notice,
as requested, of the State’s intent to introduce the images and videos. After considering the
parties’ arguments, the trial court overruled Nasipak’s objections.
One of the investigating officers testified regarding the contents of Nasipak’s
cellphone and his Dropbox account and explained that some of the items were child pornography
and that others were not technically child pornography but depicted children in sexualized
manners. During the officer’s testimony, images and portions of ten videos serving as the basis
for the counts in the indictment were published for the jury. Next, the officer discussed how the
investigating officers discovered other images and videos of child pornography on Nasipak’s
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Dropbox account and cell phone and also discovered images and videos that did not contain
child pornography but did depict children in sexualized manners. The officer explained that
the images and videos are on exhibits that were admitted into evidence. During the officer’s
testimony, the State published a redacted image in which a penis penetrated a child and
published two videos containing child pornography, including video record three. The officer
described video record three as an aggressive sexual assault of “a young female” and described
the other video as showing “an erect penis . . . sexually assaulting orally a four-year-old child.”
Nasipak did not testify or call any witnesses. After considering the evidence
presented, the jury found Nasipak guilty of all twenty-eight counts of possession with intent
to promote child pornography. Following the punishment phase, the trial court rendered its
judgments of convictions. Nasipak appeals the trial court’s judgments of conviction.
STANDARD OF REVIEW
On appeal, Nasipak challenges evidentiary rulings by the trial court. Appellate
courts review a trial court’s ruling regarding the admission or exclusion of evidence for an abuse
of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that
standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly wrong
as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex.
Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex.
Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court’s decision
“is reasonably supported by the record and is correct under any theory of law applicable to the
case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate
court reviews the trial court’s ruling in light of the record before the court “at the time the ruling
was made.” Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.).
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DISCUSSION
In his two issues on appeal, Nasipak contends that the trial court erred by
overruling his Rule 403 and Rule 404 objections and admitting into evidence video record three,
which he describes as “much worse than any other evidence admitted.” See Tex. R. Evid. 403,
404. However, during trial, Nasipak objected to the admission of all of the images and videos
of child pornography that were not listed in the indictment, and the trial court ruled on the
admissibility of all of that evidence together without making any specific ruling regarding video
record three. In addressing Nasipak’s issues, we will address the arguments as they pertain to the
admission of all of the evidence but will address video record three separately where appropriate.
Cf. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (noting that “[t]he point of error
on appeal must comport with the objection made at trial”).
Rule 403
Regarding Rule 403, Nasipak contends in his first issue that the State did not
need video record three and that the video had “little, if any, probative value” because the trial
court allowed the State to introduce between 100 and 150 images and videos not listed in the
indictment to show his intent to promote child pornography. Additionally, Nasipak argues that
video record three was much worse than any of the images and videos listed in the indictment
because it is a recording of a violent sexual assault of a young girl and could do “nothing but
inflame the jury,” and he points to a comment by the trial court stating that Nasipak had made a
good argument regarding the prejudicial value of the video because “[i]t’s just really bad” and
“so horrific that it’s just going to horrify” the jury. Similarly, Nasipak asserts that because the
video depicting the violent sexual assault was played in an unredacted form, it had the potential
to cause the jury to make its decision on an improper emotional basis. Relatedly, Nasipak urges
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that video record three was different from the other videos and images shown to the jury and
notes that the trial court commented that none of the other videos had the “exact kind” of content
present on video record three. Accordingly, Nasipak asserts that the jury could have given
additional weight to that video and been confused from the main issue. For these reasons,
Nasipak contends that the trial court erred by denying his Rule 403 objection and that the
admission harmed him by affecting his substantial rights.
Rule of Evidence 403 specifies that relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Tex. R. Evid. 403. “Under Rule 403, it is presumed that the probative
value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion
of evidence only when there is a clear disparity between the degree of prejudice of the offered
evidence and its probative value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.
2009) (footnotes and internal quotation marks omitted). Accordingly, “the plain language of
Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence
is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed
to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal
citation omitted).
Although this is not an exhaustive list, courts generally balance the following
factors when performing a Rule 403 analysis: “(1) how probative the evidence is; (2) the
potential of the evidence to impress the jury in some irrational, but nevertheless indelible way;
(3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the
evidence.” Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019); see Gigliobianco v.
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State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In this context, “probative value” refers
to how strongly evidence makes the existence of a “fact of consequence” “more or less probable”
and to how much the proponent needs the evidence, and “unfair prejudice” refers to how likely
it is that the evidence might result in a decision made on an “improper basis,” including “an
emotional one.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (quoting Casey v.
State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). For Nasipak to be convicted of the
charged offenses, the evidence had to show that he “knowingly or intentionally promote[d] or
possesse[d] with intent to promote” “visual material that visually depicts a child younger than 18
years of age at the time the image of the child was made who is engaging in sexual conduct” and
that he knew “that the material depicts the child as described.” Tex. Penal Code § 43.26(a), (e).
In this context, “‘[p]romote’ means to procure, manufacture, issue, sell, give, provide, lend, mail,
deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise
or to offer or agree to do any of the above.” Id. § 43.25(a)(5).1 Making child pornography
available for others to access and download through peer-to-peer file-sharing software qualifies
as “dissemination” or “distribution” of child pornography. See Wenger v. State, 292 S.W.3d 191,
198-99 (Tex. App.—Fort Worth 2009, no pet.).
Probative Value
During the hearing addressing the admissibility of the evidence of videos and
images from Nasipak’s Dropbox account and cellphone, the State explained that it intended to
1
In its brief, the State suggests that Nasipak has waived this issue by failing to object to
testimony and other evidence covering topics that the State asserts are similar to the contents of
video record three. However, we note that Nasipak asked for and obtained a running objection to
the admission of all of the evidence from his Dropbox account and cellphone. See Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (explaining that party does not have to
continue to object each time inadmissible evidence is offered if party obtains running objection).
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show the jury the twenty-eight images and videos serving as the basis for the indictment, and the
State further explained that it wanted to introduce evidence regarding other images and videos,
including video record three, that were also in his Dropbox account and cellphone. Further, the
State noted that Nasipak suggested during the hearing that some of the images listed in the
indictment might not depict children, and the State argued that the additional child-pornography
files help to establish that the images and videos listed in the indictment depicted children and
that Nasipak knew that they were children. Next, the State explained that proving Nasipak’s
guilt required the State to show that Nasipak possessed the images and videos listed in the
indictment with the intent to promote them and that the evidence regarding additional images
and videos helped to establish the promotion element because possession of an even larger
collection of child pornography circumstantially indicated that he intended to promote the files
listed in the indictment.
Accordingly, the trial court could have reasonably concluded that the other
images and videos, including video record three, had probative value and could help establish
Nasipak’s guilt. See Gerron v. State, 524 S.W.3d 308, 321 (Tex. App.—Waco 2016, pet. ref’d)
(explaining that “the discovery of the approximately 11,000 photographs of children” had
significant probative force where “defensive theor[y] was the lack of proof of the very issue
these items tended to prove, that being that the girls depicted in the photographs for which he
was indicted were under the age of 18”); Cox v. State, 495 S.W.3d 898, 902, 904 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d) (determining that defendant’s possession of “2,000 images
and videos” of “child pornography constitutes some proof that [he] intended to solicit more
child pornography”); see also Leita v. State, No. 13-14-00567-CR, 2016 WL 6541843, at *8
(Tex. App.—Corpus Christi-Edinburg Aug. 25, 2016, pet. ref’d) (mem. op., not designated for
8
publication) (explaining that evidence of defendant’s possession of large amount of child
pornography “made more probable [defendant]’s knowledge that the files on his computer were
being shared, which is a fact of consequence”).
Need for the Evidence
Before the hearing, a recording of Nasipak’s interview with the police was
played for the jury. On the recording, Nasipak admitted that he possessed child pornography
on his cellphone and in his Dropbox account, and he also admitted that he exchanged child
pornography through two social-media applications. However, Nasipak made no specific
admission regarding the images and videos listed in the indictment, and the State explained
during the hearing that it had no direct evidence that Nasipak intended to promote the twenty-
eight images and videos serving as a basis for the indictment and asserted that it needed the
evidence regarding other child pornography also found in Nasipak’s Dropbox account and
cellphone, including video record three, to help establish his intent to promote. Moreover, as set
out above, Nasipak argued that it was not clear that some of the images and videos alleged in the
indictment displayed a child, and the State argued that it needed the evidence of other images
and videos to help establish that the images and videos listed in the indictment displayed children
and that Nasipak knew they were children.2
For these reasons, the trial court could have reasonably determined that the State’s
need for this evidence weighed in favor of admission of the evidence of additional child
pornography, including video record three. Cf. Petruccelli v. State, 174 S.W.3d 761, 766 (Tex.
2
Although Nasipak asserts on appeal that the State did not need video record three
because it was allowed to introduce other images and videos not listed in the indictment, he
objected at trial to the admission of all of the images and videos not listed in the indictment, and
accordingly, the trial court ruled on the admissibility of all of the evidence together.
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App.—Waco 2005, pet. ref’d) (determining that State’s need for photographs was clear where
they were “directly relevant and probative to counter the defense’s theory”); see also Leita,
2016 WL 6541843, at *8 (determining that “the State’s need for . . . evidence was strong” where
there was no “direct evidence of [the defendant] promoting child pornography”).
Time Needed to Develop the Evidence
During the hearing, the State explained that it would focus its presentation on the
images and videos forming the basis for the indictment and would not take an inordinate amount
of time to go through the other images and recordings. Further, although the State requested the
admission of several images and videos, it explained that it would publish only one image and
two videos. Moreover, we note that the guilt-innocence portion of the trial was held over three
days, that the record is hundreds of pages in length, and that the State played portions of ten
videos listed in the indictment. In contrast, the testimony concerning the other images and
videos discovered during the investigation was less than fifteen pages, and the testimony
regarding video record three was just a few pages in length. Moreover, as it indicated it would,
the State published only one additional image and two additional videos. The first video was
only published for thirty-nine seconds. Video record three was played in its entirety, but the
recording was less than a minute long.
Accordingly, the trial court could have reasonably determined that the time
needed to develop the other evidence, including video record three, heavily weighed in favor of
admission. See Brickley v. State, 623 S.W.3d 68, 82 (Tex. App.—Austin 2021, pet. ref’d)
(determining that time factor weighed in favor of admission where guilt-innocence phase was
held over three days, where record was hundreds of pages long, and where testimony regarding
extraneous offense was fewer than five pages); Robisheaux v. State, 483 S.W.3d 205, 221 (Tex.
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App.—Austin 2016, pet. ref’d) (finding time factor weighed in favor of admission where
evidence regarding extraneous offense came in though one witness, where guilt-innocence phase
lasted three days, and where testimony about extraneous offense “was only eight pages long”).
Potential to Influence Jury
Unquestionably, the other images and videos and particularly video record three
were inflammatory. See Pawlak, 420 S.W.3d at 809 (explaining that “[e]vidence showing sexual
misconduct involving children is inherently inflammatory”). The trial court described video
record three as “really bad” and “horrific,” and the recording shows an aggressive sexual assault
of a young child. However, the State explained during the hearing that the jury would see the
images and videos of child pornography forming the basis for the indictment before seeing the
other images and videos and that its case would focus on the images and videos serving as the
basis for the indictment. Moreover, in order to minimize the amount of prejudice, the trial court
instructed the State to mute video record three and the other video when they were played
and agreed to provide a limiting instruction before the evidence was played and to include
another one in the jury charge. See Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (noting that “the impermissible inference can be minimized through a
limiting instruction”); see also Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
(noting that courts presume that jury followed instructions absent evidence indicating otherwise).
Similarly, the only image not listed in the indictment that was published to the jury was
published in a redacted form. Further, the additional images and videos did not address a
complex subject matter that might distract the jury from determining whether Nasipak was guilty
of the charged offenses. See Brickley, 623 S.W.3d at 82; see also Gigliobianco, 210 S.W.3d
11at 641 (explaining that scientific evidence is type of evidence that might mislead jury not
properly equipped to consider probative value).
In light of the preceding, the trial court could have reasonably determined that the
evidence of other images and videos, including video record three, would not impress the jury
in an irrational manner or, at least, that the potential was sufficiently minimized to warrant
admission given the probative value of the evidence, the State’s need for it, and the minimum
time needed to develop it. See Brickley, 623 S.W.3d at 82.
For these reasons, we conclude that the trial court did not abuse its discretion by
overruling Nasipak’s Rule 403 objection and admitting the other images and videos, including
video record three, into evidence and, therefore, overrule Nasipak’s first issue on appeal. See
Cox, 495 S.W.3d at 903-09 (concluding that trial court did not abuse its discretion by admitting
thousands of images of child pornography where potential to impress jury in irrational way
weighed in favor of exclusion but other factors weighed in favor of admission); see also Leita,
2016 WL 6541843, at *7-9 (determining that trial court did not abuse its discretion by admitting
50 extrinsic videos and 87 extrinsic images of child pornography in promotion-of-child-
pornography case where factors weighed in favor of admission).
Rule 404
In his second issue on appeal, Nasipak contends that the trial court erred by
overruling his Rule 404 objection. Although Nasipak acknowledges that Rule 404 allows for the
admission of evidence of extraneous offenses, he notes that the State did not provide reasonable
notice of its intent to introduce the evidence as required by Rule 404. See Tex. R. Evid. 404.
Further, Nasipak notes that the State argued during the hearing that Rule 404 does not require
notice when the evidence pertains to an extraneous offense arising in the same transaction as the
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charged offense, but Nasipak contends that video record three is not same-transaction contextual
evidence because it is not so connected with the State’s proof for the charged offenses that
avoiding reference to the video would render the State’s case incomplete. More specifically,
Nasipak argues that video record three was not so connected with the charged offenses “as to
form an indivisible criminal transaction and was not needed to complete the State’s case or make
it understandable to the jury.” To the contrary, Nasipak urges that video record three “was more
apt to have confused the jury’s perception of the offenses alleged” due to its violent nature.
Rule 404 provides that extraneous-offense evidence “is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character” but may be admissible for other purposes, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Id. If a defendant makes a timely request, the State “must provide reasonable notice
before trial that [it] intends to introduce such evidence” unless the extraneous-offense evidence
“aris[es] in the same transaction” as the charged offense. Id.“Rule 404(b) . . . is a rule of inclusion rather than exclusion,” Chaparro v. State,
505 S.W.3d 111, 115-16 (Tex. App.—Amarillo 2016, no pet.), and the “enumerated exceptions”
listed under Rule 404(b) “are neither mutually exclusive nor collectively exhaustive,” Torres v.
State, 543 S.W.3d 404, 420 (Tex. App.—El Paso 2018, pet. ref’d). Also, “extraneous offense
evidence may be admissible as contextual evidence.” Swarb v. State, 125 S.W.3d 672, 681 (Tex.
App.—Houston [1st Dist.] 2003, pet. dism’d). There are two forms of contextual evidence:
“(1) ‘same transaction contextual evidence,’ which refers to other offenses connected with
the primary offense; and (2) ‘background contextual evidence’ which includes all other general
background evidence.” Blakeney v. State, 911 S.W.2d 508, 514 (Tex. App.—Austin 1995, no
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pet.) (internal footnote omitted) (quoting Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App.
1991), superseded on other grounds by Tex. Code Crim. Proc. art. 38.37).
“[S]ame transaction contextual evidence may be admissible where ‘several crimes
are intermixed, or blended with one another, or connected so that they form an indivisible
criminal transaction, and full proof by testimony . . . of any one of them cannot be given without
showing the others.’” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Rogers
v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). “[S]ame-transaction contextual evidence is
admissible only when the offense would make little or no sense without also bringing in that
evidence.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). “[T]he jury is entitled
to know all the relevant surrounding facts and circumstances of the charged offense; an offense
is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). “It is
well settled that where one offense or transaction is one continuous episode, or another offense
or transaction is a part of the case on trial or blended or closely interwoven therewith, proof of all
the facts is proper.” Mitchell v. State, 650 S.W.2d 801, 811 (Tex. Crim. App. 1983).
In Wilson v. State, our sister court of appeals was confronted with a similar issue
to the one presented here. 419 S.W.3d 582 (Tex. App.—San Antonio 2013, no pet.). In that
case, the defendant was charged with ten counts of possessing child pornography in his
computer. Id. at 583, 584-85. During the trial, the trial court allowed the State to introduce
additional images of child pornography found on his computer beyond those specified in the
indictment and that were also found under his profile on the computer. Id. at 593. The
defendant argued that the trial court erred by admitting the additional images, but our sister court
reasoned that the admission was proper because “the additional photographs at issue were same
transaction contextual evidence.” Id. at 593-94.
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We believe that a similar conclusion is warranted under the facts of this case.
Before the hearing, one of the investigating officers explained that Nasipak generally related the
process by which he would obtain and promote the child pornography in his possession by
admitting during his interview that he used his cellphone to view and obtain child pornography,
that he would store the child pornography on his cellphone and Dropbox account, and that he
used two social media applications to share the images and videos with others. Nasipak’s
recorded interview with the police contained similar information. Although Nasipak generally
admitted to possessing a large quantity of child pornography, he did not make admissions
regarding the twenty-eight images and videos forming the basis for the indictment. Moreover,
Nasipak admitted in the interview that he organized his collection of child pornography into
files on his Dropbox account. The investigating officer explained that during her review of
the contents of Nasipak’s cellphone and Dropbox account, she saw images and videos showing
child pornography. Another officer involved in the case testified that his department received
a report regarding the uploading of known images of child pornography that were associated
with Nasipak.
Based on this testimony and other evidence, the trial court could have reasonably
concluded that the images and videos of child pornography on Nasipak’s Dropbox account that
served as the basis for the indictment were so intermixed with the other child pornography on his
cellphone and Dropbox account, including video record three, as to form an indivisible criminal
transaction. See Wyatt, 23 S.W.3d at 25. Although the evidence may not have been “absolutely
necessary to the jury’s understanding of the charged offense,” it is not readily “divisible in the
way that evidence involving” different victims can be. See Worthy v. State, 312 S.W.3d 34,
40 (Tex. Crim. App. 2010). Accordingly, we conclude that the trial court did not abuse its
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discretion by concluding that the other images and videos, including video record three, were
same-transaction contextual evidence and that the notice provision of Rule 404 did not apply and
by overruling Nasipak’s Rule 404 objection. See Wilson, 419 S.W.3d at 593-94.
For these reasons, we overrule Nasipak’s second issue on appeal.
CONCLUSION
Having overruled Nasipak’s two issues on appeal, we affirm the trial court’s
judgments of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: November 18, 2022
Do Not Publish
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