Jeffery Willard Sprayberry v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00315-CR
JEFFREY WILLARD SPRAYBERRY APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. Introduction
A jury convicted Appellant Jeffrey Willard Sprayberry of the Class B
misdemeanor offense of graffiti. In three points, Appellant asserts that the graffiti
statute is unconstitutional as applied to him, the evidence is insufficient to
support his conviction, and the trial court erred by failing to serve him with a copy
of either the complaint or the information. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Appellant pleaded not guilty to charges that he intentionally or knowingly
“ma[d]e markings” by spray painting with aerosol paint the word “crook” on a sign
owned by Larry Marrs without his effective consent, causing a loss of less than
$500. At trial, the State presented evidence that in the weeks before the offense,
Marrs and James Blyn placed political signs around the city that were
subsequently defaced with spray paint. 2 Blyn testified that in an attempt to catch
the culprit, he, his friend Josh Thatcher, and Marrs conducted a stakeout. On
May 6, 2009, Marrs and Blyn placed new signs out in the morning and went back
out at approximately 10:30 that evening to monitor the signs. Blyn and Thatcher
parked in a residential neighborhood near some of the signs. At approximately
1:30 a.m., a tall, heavyset individual wearing a backpack walked by, and he fit
the description Blyn and Thatcher had received from someone who had
witnessed earlier vandalism of some of the signs. Both Blyn and Thatcher
described the individual (later identified as Appellant) as wearing blue jean
shorts, a blue T-shirt, white socks, and dark-colored tennis shoes. After
Appellant had gone a block or so, Blyn exited the car and followed him with his
binoculars. At one point, Blyn saw Appellant put down his bag, rifle through it,
pull something out and set it on the ground, put the backpack back on, grab the
object on the ground, and continue on his path. Blyn then lost sight of Appellant.
2
Marrs was seeking re-election to the Richland Hills City Council, and Blyn
was a first-time candidate.
2
A short time later, Appellant walked back in Blyn’s direction, and Blyn hid in the
bushes and called the police.
In addition to corroborating much of Blyn’s testimony, Josh Thatcher
testified that he also exited the car after Appellant first walked by. Thatcher took
pictures of Appellant standing across the street from some political signs and
rifling through his backpack, and he saw Appellant pull from the backpack what
looked like a Coke can but could have been a spray paint can. Thatcher then
saw Appellant get “really close to” and kneel down in front of a sign placed in a
residential yard. As Thatcher moved toward Appellant, Appellant suddenly
turned and walked in Thatcher’s direction. The two men exchanged greetings,
and when Appellant disappeared behind him, Thatcher ran to the sign. The word
“crook” was written in dripping spray paint across one of Marrs’s signs. 3
Thatcher got paint on his knuckle when he ran it across the sign.
Richland Hills Police Sergeant Robert Dostie and Officer Zachary Gibson
responded to a dispatch regarding the instant offense. Sergeant Dostie found
Appellant (who matched the description given by the 911 caller) walking in the
area. When Sergeant Dostie stopped Appellant and asked if he had paint in his
bag, Appellant invoked his Fourth Amendment right to privacy. Sergeant Dostie
testified that Appellant had a video camera strapped around his neck and that he
3
The State introduced the sign and pictures of the front of the sign in
evidence. The sign—as depicted in the photographs in the reporter’s record—
states in printed lettering, “Re-elect Larry Marrs, Richland Hills, Texas, City
Council, Place 5,” with the word “crook” spray painted on top of it.
3
announced he was going to turn it on. 4 Thereafter, Blyn, Thatcher, and Marrs
approached, and Blyn and Thatcher identified Appellant as the person they had
seen earlier. Sergeant Dostie subsequently ordered Officer Gibson to arrest
Appellant, and Appellant refused to place his hands behind his back and became
“passive resistive.”5 When Officer Gibson “brought [Appellant] around to try to
put him down on the ground,” Sergeant Dostie saw a can of red spray paint
sticking out of one of the backpack’s pockets. Sergeant Dostie did not see any
paint on Appellant’s hands, however. 6 Sergeant Dostie testified that he spoke
with his commander over the phone and then decided to arrest Appellant.
Officer Gibson testified that before he arrested Appellant, Appellant asked
why the officers were there. When Officer Gibson responded that a sign had
been spray painted, Appellant stated he did not know it was against the law to
spray paint a political sign. According to Officer Gibson, when Sergeant Dostie
told Appellant they were arresting him for criminal mischief, Appellant stated he
could not be arrested because his actions constituted a political statement.
4
Investigator Jonathan Robinson testified that he obtained a search
warrant for Appellant’s video camera, which the State published to the jury.
5
On cross-examination, defense counsel suggested that Appellant was
simply trying to protect his video camera, but Sergeant Dostie testified, “I don’t
know if he was protecting his camera. I think he was trying to keep his arm from
going behind his back to be handcuffed.”
6
Sergeant Dostie testified that a video camera on his patrol unit captured
Appellant’s arrest and that it fairly and accurately represented what occurred,
although it contained no audio. The State published the video to the jury.
4
Appellant then asked, “Isn’t [criminal mischief] only a ticket?”7 After arresting
Appellant and transporting him to the jail, Officer Gibson conducted an inventory
search of Appellant’s backpack and found one can of white and one can of black
spray paint.
Marrs testified that on May 6, 2009, he replaced several defaced political
signs with new signs in various areas of the city and that he placed the sign in
question in a residential yard with the owner’s permission. Marrs testified that
the sign in question cost approximately $3.77 and that its defacement caused
him a pecuniary loss of $500 or less. Marrs testified that, while he wanted
whoever was defacing his signs to be arrested, he did not tell the officers to
arrest Appellant.
During the trial, Appellant suggested that Marrs pressured the police into
arresting him because he was “investigating” some of the things Marrs was doing
in his official capacity and because the city manager and the city council set the
budget for the police department. In Appellant’s case in chief, Officer Dyrel
Collins testified that he classified an earlier, different instance of vandalism to a
political sign (as reported by a Richland Hills resident) as “noncriminal.”
The trial court’s jury charge instructed the jury to determine, in turn,
whether Appellant was guilty of the Class B misdemeanor offense of graffiti, the
7
Officer Gibson explained on cross-examination that an individual can be
arrested or given a citation for a Class C misdemeanor. See Tex. Code Crim.
Proc. Ann. art. 14.06 (West Supp. 2011).
5
Class C misdemeanor offense of criminal mischief, or not guilty. See Tex. Penal
Code Ann. § 28.03, 28.08 (West 2011). The jury found Appellant guilty of graffiti
with pecuniary loss of less than $500. The trial court assessed punishment at
120 days’ confinement in the Tarrant County jail and $1000 fine, but suspended
the imposition of the sentence and placed Appellant on community supervision
for eighteen months. As conditions of community supervision, the trial court
ordered Appellant to perform twenty-four hours of community service and to
serve seven days in jail.
III. Constitutionality of the Graffiti Statute
In his first point, Appellant asserts that the evidence is insufficient to
convict him of graffiti because his conduct consisted of protected free speech
under the Texas and United States constitutions. The State responds that
Appellant raises a First Amendment complaint for the first time on appeal and
that “he appears to make an ‘as applied’ claim—i.e., the graffiti statute is
unconstitutional as applied to him (presumably because he scrawled a ‘political’
message).”8 The State asserts that because Appellant did not object at trial that
his First Amendment rights were violated by his prosecution under the graffiti
8
There are two types of challenges to the constitutionality of a statute: as
applied or facial. See Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App.
2009) (Cochran, J., concurring) (“A facial challenge is based solely upon the face
of the penal statute and the charging instrument, while an applied challenge
depends upon the evidence adduced at a trial or hearing.”).
6
statute, he failed to preserve error. See Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995).
A challenge to the sufficiency of the evidence need not be raised in the trial
court to be preserved for appellate review. Moff v. State, 131 S.W.3d 485, 488–
89 (Tex. Crim. App. 2004); Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App.
2001). An “as applied” challenge to the constitutionality of a statute, however,
cannot be raised for the first time on appeal. Curry, 910 S.W.2d at 496; see
Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the
“well-established requirement that appellant must preserve an ‘as applied’
constitutional challenge by raising it at trial”); Ibenyenwa v. State, No. 02-10-
00142-CR, 2012 WL 955401, at *1–2 (Tex. App.—Fort Worth Mar. 22, 2012, no
pet. h.) (op. on reh’g).
Although Appellant’s stated point is that “the evidence is insufficient to
convict,” he argues that “if what [he] did was protected speech then it cannot be a
crime.” See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976).9 He advises that
the Texas and United States constitutions guarantee the right of free speech, and
he contends that the message he “allegedly spray painted on [Marrs’s] sign”
constitutes protected First Amendment speech. We agree with the State that
9
In Buckley, the United States Supreme Court considered constitutional
challenges to various provisions of the Federal Election Campaign Act of 1971.
See 424 U.S. at 39, 96 S. Ct. at 644.
7
Appellant challenges the constitutionality of the graffiti statute as applied to him.10
Because Appellant did not raise his challenge in the trial court, we hold that he
has forfeited his claim for review. We therefore overrule his first point.
IV. Sufficiency of the Evidence
In his second point, Appellant asserts that the trial court reversibly erred in
accepting the jury’s guilty verdict as to the graffiti offense because if he is guilty
at all, he is guilty only of the lesser included offense of criminal mischief.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); see Adames v. State, 353 S.W.3d 854,
859 (Tex. Crim. App. 2011), cert. denied, 80 U.S.L.W. 3462 (U.S. Mar. 19, 2012)
(No. 11-944). We defer to the jury’s determinations of credibility and may not
substitute our judgment for that of the factfinder. See Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). We “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper v.
10
While Appellant contends that graffiti “by its very nature conveys, literally
and figuratively, expression which is speech,” he also notes that “not all speech
is protected.” In arguing that his actions were protected, he relies on the facts in
his case; specifically, that “instead of one political thought being expressed on a
political sign, i.e.: ‘elect me’; two were expressed, i.e.: this candidate is a ‘crook’.”
8
State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in
favor of the prosecution and therefore defer to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The trial court’s charge instructed the jury to find Appellant guilty of the
offense of graffiti with pecuniary loss of less than $500 if it found beyond a
reasonable doubt that he
did intentionally or knowingly make markings, to-wit: spray painted
the word “crook” with aerosol paint on the tangible property, to-wit: a
sign of another, namely, Larry Marrs, without the effective consent of
Larry Marrs, the owner of the tangible property, and said markings
caused a pecuniary loss of less than $500 to the said owner . . . .
See Act of June 9, 1997, 75th Leg., R.S., ch. 593, § 1, 1997 Tex. Gen. Laws
2072, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 695, § 1, 1999 Tex.
Gen. Laws 3297, 3297–98, amended by Act of June 19, 2009, 81st Leg., R.S.,
ch. 639, § 4, 2009 Tex. Gen. Laws 1435, 1435–36 (effective Sept. 1, 2009, the
legislature removed the “aerosol” qualifier from the types of paint necessary to
commit an offense) (current version at Tex. Penal Code Ann. § 28.08 (West
Supp. 2011)).11
Appellant alleges that no one saw him spray paint any signs. He explains
that his comments at the scene are the only evidence connecting him to this
11
At the time of the instant offense, a person committed the offense of
graffiti if he (1) intentionally or knowingly made markings (2) on the tangible
property of another (3) without the effective consent of the owner (4) with aerosol
paint, an indelible marker, or an etching or engraving device. Id.
9
crime and that he made it clear to the officers that if he had committed any crime
it was criminal mischief. Appellant also asserts that the State failed to prove that
Marrs was the actual owner of the sign because the sign “proclaims that it is
owned by the campaign to elect Larry Marrs.”12 He also asserts that “although
the ‘elect me’ message was diminished[,] it[] was not destroyed by the further
political message of ‘Crook’ added to it” and therefore the value of the sign was
not diminished.
Viewed in the light most favorable to the verdict, the evidence
demonstrated that Appellant was the only person walking in the proximity of
Marrs’s reelection sign at approximately 1:30 in the morning, that Appellant had a
can of red aerosol spray paint in his possession, and that the reelection sign had
the word “crook” scrawled across it in dripping wet red paint seconds after
Appellant had been seen kneeling down in front of the sign. Marrs testified that
his reelection sign cost approximately $3.77 and that he placed it in a residential
yard (with permission) the day before the offense. Marrs further testified that the
vandalism to his sign caused him pecuniary loss because he was not able to use
it again. Finally, Appellant stated to Officer Gibson that he did not know it was
against the law to spray paint a political sign. The trial court’s charge instructed
the jury that “pecuniary loss” means the cost of repairing or restoring the
12
Appellant cites no evidence or record reference in support of this
statement. From what we can see in the photographs of Marrs’s sign, the front of
the sign (at the bottom in small print) appears to state, “Political Advertisement
Paid for by Larry Marrs.”
10
damaged property within a reasonable time after damage occurred”; that “owner”
means “a person who has title to the property or possession of the property”; and
“possession” means actual care, custody, control or management of the property.
The jury could have reasonably found that Appellant defaced the sign, that Marrs
was the owner of the sign, and that Marrs suffered a pecuniary loss of less than
$500.
Appellant argues that because graffiti and criminal mischief have the same
or similar elements, he should have been convicted of Class C criminal mischief,
if at all.13 Although the facts of the case differ from this one, we find the following
language from the court of criminal appeals instructive:
The task in conducting a sufficiency review is not to determine
which offense the appellant should or could have been charged with;
it is to determine whether a rational fact finder could have found
beyond a reasonable doubt that the defendant was guilty of the
elements of the offense with which she was actually charged. Our
criminal laws are numerous, and some of them are quite broad. It is
not infrequently the case that an act that violates one penal statute
may violate another statute as well. When statutory provisions
13
The primary difference between the graffiti and criminal mischief statutes
(as applicable in this case) is that the graffiti statute required the markings to be
made with aerosol paint. Compare Tex. Penal Code Ann. § 28.03(a)(3) (criminal
mischief), with Act of June 9, 1997, 75th Leg., R.S., ch. 593, § 1, 1997 Tex. Gen.
Laws 2072, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 695, § 1,
1999 Tex. Gen. Laws 3297, 3297–98, amended by Act of June 19, 2009, 81st
Leg., R.S., ch. 639, § 4, 2009 Tex. Gen. Laws 1435, 1435–36.
Sergeant Dostie testified that the word “crook” on Marrs’s sign was spray
painted on with aerosol paint from a spray can. Additionally, while the Class B
graffiti pecuniary loss is “less than $500” and the Class C criminal mischief
pecuniary loss is “less than $50,” neither has a minimum amount that must be
satisfied.
11
overlap in this way, there is no inherent reason to infer that the
Legislature intended them to be mutually exclusive. A legislature
may decide that overlap is in some ways desirable; it allows
prosecutors the discretion to charge the offense that they believe is
most descriptive of a particular action, or that has the most
appropriate penalty range for a particular action.
Avery v. State, 359 S.W.3d 230, 239 (Tex. Crim. App. 2012) (citations omitted).
Because we hold that the jury could have found beyond a reasonable doubt that
Appellant committed the charged offense, i.e. graffiti, Appellant’s argument that
he is guilty only of criminal mischief is without merit. We overrule Appellant’s
second point.
V. Service of a Copy of the Information
In his third point, Appellant asserts that the trial court reversibly erred by
proceeding to trial “without having personally served a copy of the charge on
[him].” He contends that the due course clause of the Texas constitution 14 and
the due process clause of the 14th amendment of the United States Constitution
require that he be given “notice of the charge against him.”15 See U.S. Const.
amends. V & XIV; Tex. Const. art. 1, § 10. In addition, he asserts that because
he was not personally served with a copy of the complaint and information, the
14
Article 1, section 10 of the Texas constitution provides that “[i]n all
criminal prosecutions the accused . . . shall have the right to demand the nature
and cause of the accusation against him, and to have a copy thereof.” Tex.
Const. art. I, § 10; see Tex. Code Crim. Proc. Ann. art. 1.05 (West 2005) (stating
same).
15
Appellant does not cite to the Sixth Amendment, but it provides in part
that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be
informed of the nature and course of the accusation . . . .” U.S. Const. amend.
VI.
12
trial court erred by proceeding with the trial because (1) article 26.01 required a
pretrial arraignment,16 and article 26.03 dictates there can be no arraignment
until two full days after the service of the charging instrument; 17 and (2) article
27.11 allows Appellant ten days after service of the charging instrument to
prepare for trial.18
The State responds that the law does not require that Appellant be served
with a copy of the information charging him with a misdemeanor offense. See
Tex. Code Crim. Proc. Ann. art. 25.04 (West 2009) (“In misdemeanors, it shall
not be necessary before trial to furnish the accused with a copy of the indictment
or information; but he or his counsel may demand a copy, which shall be given
as early as possible.”).19 The State contends additionally that Appellant forfeited
16
Article 26.01 provides, “In all felony cases, after indictment, and all
misdemeanor cases punishable by imprisonment, there shall be an arraignment.”
Tex. Code Crim. Proc. Ann. art. 26.01 (West 2009).
17
Article 26.03 provides, “No arraignment shall take place until the
expiration of at least two entire days after the day on which a copy of the
indictment was served on the defendant, unless the right to such copy or to such
delay be waived, or unless the defendant is on bail.” Id. art. 26.03 (West 2009).
18
Article 27.11 provides, “In all cases the defendant shall be allowed ten
entire days, exclusive of all fractions of a day after his arrest, and during the term
of the court, to file written pleadings.” Id. art. 27.11 (West 2006). Article 27.12
provides, “In cases where the defendant is entitled to be served with a copy of
the indictment, he shall be allowed the ten days time mentioned in the preceding
Article to file written pleadings after such service.” Id. art. 27.12 (West 2006).
19
See Golden v. State, 92 Tex. Crim. 553, 554, 244 S.W. 816, 817 (1922)
(“The enactment of [now article 25.04] was doubtless to enforce the provision of
the Bill of Rights wherein it is said that one accused of crime ‘shall have the right
13
any error because he did not request extra time before trial. See Gallegos v.
State, 425 S.W.2d 648, 650 (Tex. Crim. App. 1968).
Our rules of appellate procedure require, as a prerequisite to presenting a
complaint for appellate review, that the record show that the complaint is
preserved, i.e., that the complaining party made a timely request, objection, or
motion in the trial court that stated the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint, and that the
trial court ruled on the request, objection, or motion, either expressly or implicitly.
See Tex. R. App. 33.1; Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App.
2004). The requirement of preservation of error generally applies to
constitutional errors. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.
2008) (stating that “almost all error—even constitutional error—may be forfeited if
the appellant failed to object”), cert. denied, 555 U.S. 1105 (2009); see also
Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (“[N]umerous
constitutional rights, including those that implicate a defendant’s due process
rights, may be forfeited for purpose of appellate review unless properly
to demand the nature and cause of the accusation against him, and to have a
copy thereof.’ Const. art. 1, § 10.”).
Notably, in a felony case, an accused is to be served by the sheriff with a
certified copy of the indictment if the accused is in custody “or as soon as he may
be arrested,” and if the accused is on bail when the indictment is presented, the
defendant need not be served; however, upon request, the clerk is to deliver a
copy of it to the defendant or his counsel. Tex. Code Crim. Proc. Ann. arts.
25.01, 25.03 (West 2009).
14
preserved.”). But rule 33.1 does not apply to rights that are waivable only20 or to
absolute systemic requirements, the violation of which may still be raised for the
first time on appeal.21 See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim.
App. 2009).
Appellant does not specifically address the preservation issue,22 although
he notes that “[t]he record does not reflect a waiver of the right to be served with
a copy of the complaint or the information by either, or both, the Appellant and
his counsel.” We have found no authority to support an argument that the trial
court disregarded a systemic or absolute requirement or that the trial court
denied Appellant a waivable-only right. Thus, we hold that rule 33.1 applies to
Appellant’s complaint.
20
“Waivable only” rights are litigants’ rights that must be implemented by
the system unless expressly waived. Anderson, 301 S.W.3d at 280. For
instance, the right to the assistance of counsel and the right to trial by jury are
“waivable only” rights. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App.
2002).
21
Systemic or absolute requirements are laws that a trial court has a duty
to follow even if the parties wish otherwise. Mendez, 138 S.W.3d at 340; see
Anderson, 301 S.W.3d at 279. Systemic requirements include jurisdiction of the
person or subject matter, a constitutional requirement that a district court conduct
its proceedings at the county seat, and a constitutional prohibition against ex post
facto laws. Saldano, 70 S.W.3d at 888–89.
22
Appellant asserts instead that “the fact that the end result was
deprivation of due course and due process of law is not only ‘structural’ but
‘Constitutional’ error which cannot be harmless beyond a reasonable doubt.
TRAP, Rule 44.2.”
15
Notably, Appellant does not assert that he demanded but was not provided
a copy of the complaint or information in violation of article 25.04 and the
constitutional provisions. Indeed, our review of the record reveals that Appellant
lodged no objections to the lack of service, he did not demand a copy of the
information, and he did not ask for extra time to prepare for trial.
A sister court has held that because the appellant did not complain in the
trial court that his state or federal constitutional rights were violated by the State’s
failure to serve him with copies of his indictments, he forfeited any error premised
on those grounds. See Alexander v. State, 137 S.W.3d 127, 130–31 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d). Moreover, two sister courts have held
that article 26.03 claims are forfeited without timely objections. See Cordero v.
State, No. 07-00-00237-CR, 2003 WL 1698889, at *6–7 (Tex. App.—Amarillo
Mar. 31, 2003, no pet.) (mem. op., not designated for publication) (holding that
appellant failed to preserve article 26.03 error because he did not timely object to
insufficient time between indictment and arraignment); Cardona Cruz v. State,
Nos. 05-00-00541-CR, 05-00-00542-CR, 2001 WL 1069219, at *2 (Tex. App.—
Dallas Sept. 14, 2001, pet. ref’d) (not designated for publication) (holding that
appellant did not preserve his article 26.03 claim because he did not object at
trial to a lack of time between service of the indictment and arraignment).
Similarly, the court of criminal appeals, this court, and a sister court have held
that the additional time to file pleadings allowed under articles 27.11 and 27.12
must be properly requested and refused in order show reversible error. See
16
Oliver v. State, 646 S.W.2d 242, 245 (Tex. Crim. App. 1983); Trevino v. State,
900 S.W.2d 815, 817 (Tex. App.—Corpus Christi 1995, no pet.); Young v. State,
752 S.W.2d 235, 237 (Tex. App.—Fort Worth 1988), aff’d, 796 S.W.2d 195 (Tex.
Crim. App. 1990). Because Appellant forfeited his right to raise his complaints on
appeal, we overrule his third point.
VI. Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 26, 2012
17