Jaime Ricardo Perez v. State

Affirmed and Memorandum Opinion filed February 21, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01102-CR
JAIME RICARDO PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1746613
MEMORANDUM OPINION
Appellant presents four issues in this case, each relating to the trial court’s
admission of medical records. We must decide whether the trial court erred by
admitting those records after the conclusion of closing argument, whether the
admission violated appellant’s right to confrontation, and whether the trial court
violated appellant’s right to counsel by denying his request for additional closing
argument. We conclude that the trial court erred by admitting the records at such a
late stage in the proceedings. However, because the contents of the records were
proved by other properly admitted evidence, we conclude that the error was
harmless. We affirm the judgment of the trial court.
BACKGROUND
Appellant was charged with assaulting his wife, the complainant. The
incident allegedly occurred on March 23, 2011, after appellant woke up to find that
the complainant was not by his side in bed. She had slept overnight, as she had
recently been doing, in the guest bedroom adjacent to her son’s bedroom. The
complainant preferred to sleep with her two-year-old son nearby, in case he had an
asthma attack during the night. This sleeping arrangement was the source of some
disagreement in the family, appellant believing that his son should be weaned from
his mother’s excessive attention.
When her son woke up earlier than usual on the day of the incident, the
complainant went to his room, lay down in front of his crib, and tried to comfort
him back to sleep. Appellant entered the bedroom later that morning and angrily
told the complainant that she must stop sleeping with their child. As the
complainant attempted to leave, appellant grabbed her body and slammed her
forehead into the door frame. He yelled at her again, ordering her to get ready for
the day. The complainant went to her bathroom, where she crouched down as if to
protect herself. Using both hands, appellant pulled her up by the hair, then slapped
her in the face with an open palm. As the complainant stepped into the shower,
appellant hit her once more in the back of the head. He then left for work.
That morning, the complainant contacted a divorce attorney, who advised
that she see a doctor. The complainant visited her family physician that same
afternoon. The day after her examination, the complainant went to the police
station and gave a statement to the authorities. During the police interview, a
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deputy constable took photographs of the complainant’s face. The pictures show
bruising around her eye, but no other marks or abrasions.
In a hearing conducted the morning of trial, appellant objected to the
prospective admission of State’s Exhibit 1, a 90-page collection of the
complainant’s medical records. The records spanned several years of treatment,
dating as far back as 2007. In pertinent part, the records documented that on the
day of the incident, the complainant had presented with an “injury to head”
because of an “assault by husband.” The records specified that the injury was
inflicted on the right side of the complainant’s head, that she was bruised, and that
there was mild tenderness around the orbital bone. The records also showed that
after examining these injuries, the complainant’s doctor recommended that she
have x-rays and a CT scan performed, which she did. Appellant objected that many
pages from the exhibit were irrelevant because they predated the charged offense.
He also objected that no one was available to interpret the records, in light of the
State’s indication that it would not call the complainant’s family physician.
The prosecutor responded that she had subpoenaed all of the complainant’s
medical records because she anticipated a defensive claim that the complainant
suffered from depression. The prosecutor explained that should the defense make
such a claim, all of the records would be relevant because they showed that the
complainant never complained of depression or of any similar disorder. The
prosecutor stated that if the defense did not challenge the complainant’s
psychological history, she would agree to limit the admission of evidence to only
those records generated since the day of the incident. As the prosecutor explained,
these selected records would be offered simply “to back up the assertion that [the
complainant] went to [the doctor’s office], got treated, made an outcry, there was a
diagnosis made as a result of that, and she was seen in the days after that as well.”
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Appellant objected that even if the exhibit were admitted for a limited purpose, the
records still contained prejudicial language.
The parties eventually arrived at a mutual agreement for admitting the
records as evidence. The agreement called for a multi-step procedure, beginning
with the admission of the entire exhibit for record purposes only—i.e., for
inclusion in the record, but not for publication to the jury. Following that limited
admission, the parties agreed to meet and mutually decide which portions of the
records to furnish to the jury. To assuage appellant’s concerns, the prosecutor also
agreed to redact any prejudicial language from the portions ultimately selected.
The trial court approved this arrangement, and stated further that “nothing is going
in front of the jury unless we come to an agreement or I make a ruling on it.” The
court proposed that the trial proceed as planned, that testimony be heard until the
end of the day, and that both sides come to a consensus on the records before the
jury returned the following morning. Both sides assented to that procedure.
For its first witness, the State called the custodian of records from the
complainant’s doctor’s office. In the presence of the jury, the custodian laid the
foundation for the complainant’s medical records to be admitted as business
records. The prosecutor then offered the records to opposing counsel, which
prompted the following comments and ruling:
STATE: Your Honor, may I tender to opposing counsel?
COURT: You may.
DEFENSE: Your Honor, the Defense has no objection for record
purposes.
COURT: Then State’s Exhibit No. 1, at this time, will be admitted
as record purposes only.
The State passed the custodian of records without discussing the contents of
the exhibit. Appellant did not cross-examine the witness.
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The State later called the deputy constable who had interviewed the
complainant. The deputy testified about his encounter with the complainant the day
after the incident as well as the photographs that were taken of her. The
complainant testified next, and she discussed the details of the assault at greater
length. The State rested without publishing the medical records to the jury, and the
complainant’s family physician was never called to testify. Consequently, the State
never proved the relevancy of the records, either in whole or in part.
The defense proceeded with appellant’s testifying on his own behalf.
Appellant denied that he had ever assaulted his wife. He argued that the
complainant had fabricated her story, speculating that she had brought these
allegations to build a case for divorce. Under this theory, appellant claimed that the
complainant was going to seek sole custody of their son, then relocate to Germany,
her country of origin. The defense neither suggested that the complainant had
suffered from depression, nor moved to strike or otherwise complain about the
medical records for any reason.
Both sides rested at the end of the first day of trial. Before the jury was
released, the trial court allowed each side to deliver its closing argument. The
prosecutor briefly mentioned the medical records in her first closing argument.
Without discussing the contents of the records, the prosecutor remarked that the
complainant had visited her physician on the day of the incident, and that the
records were one of the first things discussed at trial. Appellant did not object to
the prosecutor’s statements, and in his argument that followed, he did not refer to
the complainant’s medical records or the effect of their limited admission.
After closing arguments had concluded, the court released the jury with
instructions to begin deliberations the following morning. Once the jury was
excused, the trial court recalled that the parties had not yet met to discuss which
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portions of the exhibit to admit as evidence. The record reflects the following
exchange:
COURT: Okay, guys, good job. We’ll be in recess until tomorrow
morning.
DEFENSE: What time do you want us back?
COURT: 9:30.
DEFENSE: 9:30?
COURT: Unless – actually, guys – okay. I’ll give you a choice.
You can work on the medicals right now; you can work
on them early in the morning. Okay? So you can come
here early and do them, or you can wait and do them to
see which one – what part you’re going to let in. I need
photos – copies of those photos here in the morning. So,
I’ll leave that up to you: Work late, come early. It’s your
choice.
The court immediately recessed for the evening.
After deliberations began the next day, the jury sent the trial court a note
requesting to see the complainant’s medical records and the photos taken of her
shortly after the incident. In a hearing outside the presence of the jury, the trial
court announced that the attorneys for both sides had reduced the medical records
to eight pages for submission to the jury. Although the prejudicial portions from
those records had been redacted, appellant still asserted various objections to their
admission. Appellant first objected to the records as a whole, claiming that they
had been offered without the foundation of an expert, in violation of his right to
confrontation. Appellant also objected that all evidence in the case had been closed
and that it was too late to publish new evidence to the jury. The trial court
overruled the objections, noting that “the medical records . . . were already in,” and
that the parties had previously reached an agreement regarding their admission as
evidence.
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Appellant then objected that he had not been given an opportunity to argue
to the jury about the medical records because they had been admitted for record
purposes only. The court overruled this objection as well, stating “you knew the
records were there, we already had notice that they were going to be back up, and
you had the opportunity to argue if you so chose.” The trial court also denied
appellant’s request for additional closing argument to address the medical records.
After receiving the redacted medical records, the jury found appellant guilty
of the charged offense. Punishment was assessed at 180 days’ confinement, which
the trial court probated for one year of community supervision. Appellant now
appeals.
UNTIMELY ADMISSION
We begin with appellant’s third issue, which focuses on the timing of the
records’ admission. Appellant argues that the trial court erred by admitting the
records during jury deliberations, citing the rule that no new evidence may be
admitted after the parties have delivered their closing arguments. The State
challenges the premise of this argument. It contends that the records were not
“new,” that they had already been admitted as evidence during its own case-in-
chief, and that the trial court did not err by sending that evidence to the jury upon
its request.
We disagree with the State’s characterization. When State’s Exhibit 1 was
offered during trial, the court clearly ruled that the exhibit was admitted “as record
purposes only.” The exhibit was not published to the jury at that time, the court did
not indicate that the exhibit was admitted for all purposes, and it did not say that
the exhibit was admitted subject to a condition. By limiting the scope of the
admission to record purposes only, the court effectively ruled that no part of the
exhibit would be considered as evidence until further ruling. See Alridge v. State,
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732 S.W.2d 395, 398 (Tex. App.—Dallas 1987, pet. ref’d) (holding that jury could
not consider exhibits admitted for record purposes when determining the truth of
an enhancement paragraph).
The record shows that the trial court fully understood the impact of this
ruling. During the pretrial hearing, the exhibit’s limited admission had been
discussed approvingly by the trial court. The court agreed to let the parties defer
until a later time a decision as to which portions of the exhibit should be offered as
relevant and admissible. During trial, the court admitted the exhibit for record
purposes “at this time,” a comment suggesting that the limited admission was only
temporary. The court also indicated that it anticipated a second ruling when it
instructed the parties to “work on the medicals,” an instruction delayed until after
closing arguments had concluded. Based on this record, we agree with appellant
that no part of the exhibit had been admitted as evidence by the end of closing
argument.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The
trial court abuses its discretion when its decision is arbitrary, unreasonable, or
without reference to guiding rules or principles. Makeig v. State, 802 S.W.2d 59,
62 (Tex. Crim. App. 1990).
Appellant contends that the trial court abused its discretion by admitting the
records because the admission came during jury deliberations. For authority,
appellant cites article 36.02 of the Texas Code of Criminal Procedure, which
provides as follows: “The court shall allow testimony to be introduced at any time
before the argument of a cause is concluded, if it appears that it is necessary to a
due administration of justice.” Tex. Code Crim. Proc. art. 36.02. Although this
provision has existed in various forms since 1856, its language has remained
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unchanged. See Peek v. State, 106 S.W.3d 72, 75 n.8 (Tex. Crim. App. 2003)
(providing citations to earlier forms). For more than a hundred years, Texas courts
have construed it as a blanket prohibition on the introduction of evidence after both
sides have concluded their closing arguments. See Pena v. State, 353 S.W.3d 797,
808 (Tex. Crim. App. 2011) (“The introduction of evidence after the conclusion of
closing arguments is prohibited.”); Beeler v. State, 374 S.W.2d 237, 239 (Tex.
Crim. App. 1964); Reed v. State, 76 Tex. Crim. 335, 338, 174 S.W. 1065, 1066
(1915); Galan v. State, 76 Tex. Crim. 619, 629, 177 S.W. 124, 129 (1915),
overruled on other grounds by Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274
(1944); Lockett v. State, 55 S.W. 336, 336 (Tex. Crim. App. 1900); Lorance v.
State, 37 Tex. Crim. 453, 453, 36 S.W. 93, 93 (1896); Williams v. State, 35 Tex.
Crim. 183, 189, 32 S.W. 893, 894 (1895); Ming v. State, 24 S.W. 29, 29 (Tex.
Crim. App. 1893); Allman v. State, 164 S.W.3d 717, 719 (Tex. App.—Austin
2005, no pet.). The statute is “mandatory,” and permits no exceptions. See Lockett,
55 S.W. at 336; Allman, 164 S.W.3d at 719. It provides a bright line rule, bringing
predictability to the criminal trial pattern, and ensuring that the jury may not be
unduly influenced by the introduction of newly discovered evidence. See Williams,
35 Tex. Crim. at 189, 32 S.W. at 894 (“There must be an end to the introduction of
evidence somewhere . . . .”).
The State suggests that appellant cannot complain about the records’
untimely admission because appellant agreed to meet with the prosecutor and
mutually decide which portions of the exhibit were relevant and admissible.
According to the State, appellant’s assent to this procedure demonstrated a tacit
acknowledgment that the jury was entitled to review this evidence. The parties’
agreement is not determinative, however. Even with the court’s approval, the
parties cannot agree to disregard a mandatory statute. The meeting and resolution
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of evidentiary disputes should have taken place before closing argument. After
closing argument, the court had no discretion to admit any further evidence. The
untimely admission was therefore erroneous. See Tex. Code Crim. Proc. art. 36.02;
Pena, 353 S.W.3d at 808; Allman, 164 S.W.3d at 721.
A violation of Article 36.02 is subject to a harm analysis for
nonconstitutional error. See Allman, 164 S.W.3d at 721. Under this standard, error
must be disregarded unless it affects a defendant’s substantial rights. Tex. R. App.
P. 44.2(b). An error affects a defendant’s substantial rights when the error has a
substantial and injurious effect or influence on the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight
influence on the verdict, the error is harmless. Id.
The eight pages of medical records submitted to the jury do not contain any
facts not already established by other properly admitted evidence. In material part,
the records reflect that the complainant presented with an assault by her husband
and that there was bruising to her right eye. The records do not detail any
particulars of the alleged assault, other than to say that the complainant’s head was
hit against a door frame. These same facts were established by the complainant’s
own testimony and the testimony of the deputy constable who took her statement
and observed her injuries. These facts were also evidenced by the pictures of the
complainant taken by the deputy a day after the incident. Because the contents of
the records were proved by other properly admitted evidence, we conclude that the
records’ admission, though improper, was harmless. See Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999) (“Moreover, any error in admitting the
evidence was harmless in light of other properly admitted evidence proving the
same fact.”); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). Appellant’s third issue is overruled.
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CONFRONTATION CLAUSE
In his fourth issue, appellant argues that the trial court violated his Sixth
Amendment right to confrontation by admitting the complainant’s medical records
without the testimony of her family physician. Appellant contends that the records
were prepared in anticipation of litigation, and therefore, that he was entitled to
cross-examine the doctor who created them. To reach appellant’s constitutional
argument, we must first determine whether the medical records are “testimonial”
and subject to the Confrontation Clause. See Davis v. Washington, 547 U.S. 813,
821 (2006) (holding that only testimonial statements are subject to the
Confrontation Clause); Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding
that the testimonial statements of a witness who did not appear at trial are
inadmissible unless the witness was unavailable to testify and the defendant had a
prior opportunity for cross-examination). Our review is bifurcated. We consider de
novo all questions of law. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.
2006). If resolution on the ultimate question turns upon an issue of fact, we review
for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).
The Supreme Court has not crafted an exclusive definition for classifying
which types of statements are testimonial in nature. See Davis, 547 U.S. at 822
(providing one standard “[w]ithout attempting to produce an exhaustive
classification of all conceivable statements”). However, in Crawford, the Court
held that the Confrontation Clause applies only to witnesses who “bear testimony,”
and testimony, in turn, is typically a “solemn declaration or affirmation made for
the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51.
In the interrogation context, the Court has specifically noted that statements
are nontestimonial “when made in the course of police interrogation under
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circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at
822; see id. at 822 n.1 (cautioning that a court should not imply that statements
made in the absence of interrogation are necessarily nontestimonial). Statements
are testimonial, on the other hand, “when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Id.
Even though the complainant’s physician was not engaged in a police
interrogation at the time of her examination, the foregoing standards are still
instructive. See De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)
(applying same standards from Davis when determining whether medical records
created by non-governmental employees were testimonial in nature). We therefore
consider the primary purpose of the physician’s encounter, objectively evaluating
its circumstances and the statements and actions of the parties involved. See
Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).
The complainant provided the only testimony regarding the circumstances
surrounding her medical examination. She testified that, following the alleged
incident, she first spoke with a divorce attorney, and “because of [her] injuries,”
the attorney “advised [her] to see a doctor.” There was no testimony about the
physician’s reasons for creating the medical records. An inference could be made
that the records were created primarily for the purpose of establishing or proving
events related to the assault. In the nonredacted version of the records, the
physician noted that the complainant “contacted [a] lawyer” and “will make a
police report.” These notations could support a finding that the records were made
in anticipation of litigation, and therefore, are testimonial.
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But a plausible inference could also be made that the records were created
simply for the purpose of medical diagnosis. As the complainant testified, the
divorce attorney instructed her to see a physician “because of [her] injuries,” and
the records show that the doctor recommended further tests based upon her
examination of the complainant. Under this theory, the trial court could have found
that the records were nontestimonial because they were made in the physician’s
ordinary course of business, and for the objective purpose of evaluating the
complainant’s condition and defining the scope of her care. See Tex. R. Evid.
803(6) (creating hearsay exception for such records); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009) (explaining that business records are not
testimonial because they are generally created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some fact at trial); id. at
312 n.2 (noting that “medical reports created for treatment purposes . . . would not
be testimonial under our decision today”); see also Berkley v. State, 298 S.W.3d
712, 715 (Tex. App.—San Antonio 2009, pet. ref’d) (holding medical records
nontestimonial); Smith v. State, No. 05-09-01408-CR, 2011 WL 3278528, at *2
(Tex. App.—Dallas Aug. 2, 2011, pet. ref’d) (not designated for publication)
(same).
An appellate court reviewing the trial court’s decision on the admissibility of
evidence may reverse it only for an abuse of discretion—i.e., only when the trial
court’s decision lies outside the zone of reasonable disagreement. Shuffield v.
State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). The trial court here was not
presented with any direct evidence explaining the reasons for the physician’s
creation of medical records. Inferences could be made both ways as to whether the
records were produced in anticipation of litigation. In such a situation, the trial
court could reasonably find that the records were nontestimonial and created
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primarily for the purpose of medical diagnosis. Cf. Goodman v. State, 302 S.W.3d
462, 470 (Tex. App.—Texarkana 2009, pet. ref’d) (concluding that trial court did
not abuse its discretion in deciding that blood results were nontestimonial where
“[t]here was evidence cutting both ways” regarding the reason for the blood draw).
We find no abuse of discretion. Appellant’s fourth issue is overruled.
CLOSING ARGUMENT
In his first and second issues, appellant contends that the trial court violated
his right to effective assistance of counsel by denying him the right to argue his
version of the case as a whole. Claims regarding deprivations of constitutional
rights present questions of law, which we review de novo. See Lilly v. Virginia,
527 U.S. 116, 137 (1999).
In every criminal prosecution, the accused enjoys a right to effective
assistance of counsel guaranteed by both the federal and state constitutions. See
U.S. Const. amend. VI; Tex. Const. art. 1, § 10. These constitutional guarantees
have been interpreted to mean that the accused has a right to be heard in argument
both as to the law and the facts of the case at the conclusion of testimony. See
Herring v. New York, 422 U.S. 853, 863 (1975); Ruedas v. State, 586 S.W.2d 520,
522 (Tex. Crim. App. [Panel Op.] 1979); Ferguson v. State, 133 Tex. Crim. 250,
253–54, 110 S.W.2d 61, 63 (1937); Anselin v. State, 72 Tex. Crim. 17, 18, 160
S.W. 713, 714 (1913); Spangler v. State, 42 Tex. Crim. 233, 252–53, 61 S.W. 314,
322 (1900).
Appellant argues that his constitutional rights were violated because the trial
court denied his request for additional closing argument to address the untimely
admitted medical records. Appellant does not cite any direct authority for this
argument. Cases examining the right to closing argument have found reversible
error where a trial court completely denies an opportunity for closing summation.
14
See Ruedas, 586 S.W.2d at 524; Anselin, 72 Tex. Crim. at 18, 160 S.W. at 714.
Reversible error has also been found where a court unreasonably limits the time
available for closing argument, and where a court permits closing argument but
restricts counsel from arguing a legitimate inference from the record. See Dang v.
State, 154 S.W.3d 616, 622 (Tex. Crim. App. 2005); Lemos v. State, 130 S.W.3d
888, 892–93 (Tex. App.—El Paso 2004, no pet.). We are aware of no authority
where error was predicated on the denial of additional closing argument after the
trial court improperly admitted new evidence.
Appellant argues that we should find error, nonetheless, based on an analogy
to Murray v. State, 857 S.W.2d 806 (Tex. App.—Fort Worth 1993, pet. ref’d). The
issue in Murray focused not on the admission of additional evidence, but on
changes made to the jury charge after closing argument had concluded. In that
case, defense counsel discovered that an important instruction had been omitted
from the jury charge. Id. at 807. When counsel delivered his closing argument, he
claimed that because of the omission, his client could not be found guilty as
charged. Id. After the jury commenced deliberations, the trial court decided to
supplement the charge with the omitted instruction. Id. at 808. The defendant
argued on appeal that the change was tantamount to the denial of argument. The
court of appeals agreed, holding that the change had effectively “repudiated”
counsel’s closing argument and allowed the jury to convict the defendant on a
theory not available for comment. Id. at 811–12.
Murray is distinguishable because the decision in that case was based on the
trial court’s “repudiation” of counsel’s closing argument. The reviewing court
found reversible error because the supplemental instruction was equivalent to the
trial court’s “answering defense counsel’s oral argument with a written rebuttal.”
Id. at 811 (quoting Moore v. State, 848 S.W.2d 920, 923 (Tex. App.—Houston [1st
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Dist.] 1993, pet. ref’d)). Appellant has not demonstrated how the trial court’s
admission of medical records, though improper, had the same effect of
“repudiating” his counsel’s closing argument.
Counsel made a compelling argument addressing all of the material evidence
in the case. Counsel argued that appellant was the victim of a scheme for divorce.
He referenced the complainant’s encounter with her divorce attorney, her intent to
be awarded sole custody of their son, and her desire to leave the country with her
son. Counsel also noted that the photographic evidence of assault was problematic.
He observed that there were no marks on the complainant’s forehead, which cast
doubt on her accusation that she had been pushed into a doorway. He also argued
that the evidence of bruising around the eye was inconsistent with an accusation
that the complainant was hit with an open-handed slap. While the medical records
tended to lend support to the State’s case, their untimely admission did not
eviscerate or repudiate counsel’s closing argument in the same manner or to the
same degree as the supplemental charge in Murray. The complainant’s credibility
was still at issue, even after the records’ admission.
Even assuming that the trial court erred by denying additional closing
argument, appellant has not demonstrated harm. Appellant’s only argument
regarding harm is that he was not given an opportunity to minimize the impact of
the medical records during closing argument. But appellant never identified to the
trial court, or to this court on appeal, what his argument would have been had he
been allowed to address the jury for a second time. Moreover, the medical records
were cumulative of other evidence introduced at trial, which appellant thoroughly
addressed in his closing summation. The record does not indicate what additional
argument, if any, could be made that had not already been covered. We overrule
appellant’s first and second issues.
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CONCLUSION
The trial court erred by admitting new evidence after the parties had
delivered their closing arguments. However, the error was not reversible because it
did not affect appellant’s substantial rights. Having overruled appellant’s
remaining points of error, we affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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