Gary McGruder v. State

IN THE
TENTH COURT OF APPEALS
No. 10-19-00064-CR
GARY MCGRUDER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 17-04501-CRF-85
MEMORANDUM OPINION
In three issues, appellant, Gary Wayne McGruder, challenges his conviction for
burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (West 2019).
Specifically, McGruder contends that: (1) the trial court erred by failing to suppress
statements made as a result of custodial interrogation prior to his arrest; (2) the trial court
erred by refusing to instruct the jury on the lesser-included offense of theft; and (3) there
is not sufficient evidence to support his conviction. Because we overrule all of
McGruder’s issues on appeal, we affirm.
I. MCGRUDER’S MOTION TO SUPPRESS
In his first issue, McGruder asserts that he was subjected to extensive interrogation
before he had been advised of his rights not to speak to officers and to have an attorney
present during questioning. Because of this purported constitutional violation,
McGruder contends that the trial court erred by failing to suppress statements made as a
result of the alleged custodial interrogation.
A. Standard of Review
We review a trial court's ruling on a motion to suppress evidence for an abuse of
discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the
zone of reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.
2014); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give almost complete
deference to the trial court's determination of historical facts, but we review the court's
application of the law to those facts de novo. Story, 445 S.W.3d at 732; Dixon, 206 S.W.3d
at 590.
B. Applicable Law
In deciding whether an individual was in custody, we take the findings that are
supported by the record and determine whether they constitute a Miranda custody
situation as a matter of law. State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013).
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Central to this issue is whether McGruder demonstrated that his questioning by law
enforcement at the scene was a “custodial interrogation.” The defendant bears the
burden of proving that a statement was the product of a custodial interrogation. Herrera
v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Custodial interrogation refers to
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Miranda
v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda provides that
a defendant's statements “stemming from custodial interrogation” are inadmissible as
evidence against him unless he is advised of certain constitutional rights under the Fifth
Amendment. Id. (“Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or appointed.”);
see U.S. CONST. amend. V.
The state counterpart is article 38.22 of the Code of Criminal Procedure, which
similarly provides that a defendant's oral statement “made as a result of custodial
interrogation” is inadmissible in a criminal proceeding unless a recording is made of the
statement, the defendant is warned during the recording but before making the statement
that “any statement he makes may be used as evidence against him in court,” and he
knowingly, intelligently, and voluntarily waives those rights. TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 3(a)(1)-(2) (West 2018); see Herrera, 241 S.W.3d at 526 (stating that
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construction of “custody” for purposes of article 38.22 of Texas Code of Criminal
Procedure is consistent with meaning of "custody" for purposes of Miranda and Fifth
Amendment). Statements that do not “stem from custodial interrogation” are not
precluded by article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5.
In Dowthitt, the Court of Criminal Appeals identified four situations that may
constitute custody: (1) when the suspect is physically deprived of his freedom of action
in any significant way; (2) when a law-enforcement officer tells the suspect that he cannot
leave; (3) when law-enforcement officers create a situation that would lead a reasonable
person to believe that his freedom of movement has been significantly restricted; and (4)
when there is probable cause to arrest and law-enforcement officers do not tell the suspect
that he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).
Regarding the first through third situations, the restriction on the suspect's freedom of
movement must be to the degree associated with an arrest as opposed to an investigative
detention. Id.
Noncustodial investigative detentions and arrests both involve a restraint on an
individual's freedom of movement, but an arrest involves a comparatively greater
restraint. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). No bright-line
test distinguishes investigative detentions from arrests; rather, courts consider several
factors to determine whether an individual is in custody, including the amount of force
displayed; the duration of the detention; the efficiency of the investigative process and
McGruder v. State Page 4
whether it is conducted at the original location or the individual is transported to another
location; the officer's expressed intent, i.e., whether he told the individual that he was
under arrest or was being detained only for a temporary investigation; and any other
relevant factors. Id. at 291. A detention is not an arrest if the degree of incapacitation is
no more than necessary to safeguard the officers and assure the suspect's presence during
a period of investigation. See id. Ultimately, courts must determine whether, given the
circumstances surrounding the interrogation, a reasonable person would have perceived
detention by law-enforcement officers to be a restraint on his movement comparable to
the restraint of formal arrest. Berkemer v. McCarty, 468 U.S. 420, 441, 104 S. Ct. 3138, 82 L.
Ed. 2d 317 (1984); Herrera, 241 S.W.3d at 525. Assessment of whether an individual is in
custody is made on an ad hoc, case-by-case basis. Dowthitt, 931 S.W.2d at 255.
C. Discussion
At the hearing on McGruder’s motions to suppress, Officer Jason Arnold of the
College Station Police Department testified that he was serving as a courtesy officer for
the Cedar Ridge apartment complex. During his night patrol, at 4:30 a.m., Officer Arnold
saw a male, later identified as McGruder, in dark clothing walking quickly from Building
5. Officer Arnold noticed that McGruder was carrying a flat-screen television and was
quickly trying to exit the apartment complex. When Officer Arnold caught up with
McGruder, Officer Arnold noticed that McGruder also “had things stuffed in his shirt”
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and suspected that McGruder was “burglarizing the complex.” Officer Arnold detained
McGruder “due to his furtive movements.”
In the interest of officer safety, Officer Arnold requested that McGruder remove
the items stuffed in his shirt. McGruder complied and removed an Apple TV box, a DVD
player, a pair of flip flops, and a cell phone from under his shirt. Officer Arnold recounted
that both the Apple TV box and DVD player had wires connected to them, “as if they had
just been removed from whatever device they were connected to.”
At this point, Officer Arnold requested identification from McGruder.
McGruder’s driver’s license indicated that he did not live at the Cedar Ridge apartment
complex. Next, Officer Arnold asked dispatch to run a criminal history on McGruder,
which took some time. While waiting for dispatch, Officer Arnold interviewed
McGruder “about his night, his whereabouts, where he was coming from, where he was
trying to go, where he had obtained the items from.” Officer Arnold recounted that he
told McGruder that he was being detained and not arrested at this time. McGruder
acknowledged that he understood and consented to a search of his person. No other
contraband was found on McGruder’s person.
Thereafter, Officer Arnold turned on the cell phone and determined that
McGruder was not the owner of the cell phone. Officer Arnold, his partner, Officer
Kofoet, and other officers who arrived began canvassing the apartment complex “looking
for entered vehicles, entered residences,” so that the property could be returned to its
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rightful owner. Officers eventually discovered an open window to one of the apartments.
Suspecting that the items in McGruder’s possession were stolen from this apartment,
officers sought to contact the apartment occupant, Jiacheng Lu. They had difficulty
contacting Lu at first, but eventually were able to do so with the help of a neighbor. Lu
identified as hers the flat-screen television, the Apple TV box, and the DVD player. The
cell phone and flip flops belonged to someone else.
In any event, Lu indicated that she wished to press charges, and McGruder was
subsequently placed under arrest. Officer Arnold testified that the detention of
McGruder lasted approximately an hour and a half, but that entire detention involved a
continuous investigation of the situation. It was during the detention and continuous
investigation that McGruder made certain recorded statements to Officer Arnold, which
were the subject of the motions to suppress.
Based on the evidence adduced during the suppression hearing, we cannot say
that McGruder’s statements to officers were the product of custodial interrogation, which
required Officer Arnold to administer Miranda warnings prior to questioning McGruder.
Our conclusion is premised on the following facts: (1) Officer Arnold had reasonable
suspicion to detain McGruder for an investigative detention; (2) Officer Arnold
specifically told McGruder that he was not under arrest, but rather was being detained
for purposes of the investigation; (3) McGruder’s detention occurred in the parking lot
where McGruder was discovered with the items and did not involve him being
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handcuffed or placed in a patrol vehicle; rather, he merely sat on the ground while the
police investigated the suspected burglary; and (4) the length of the detention involved a
continuous investigation of the situation to determine whether a crime had been
committed. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 889 (1968); Sheppard,
271 S.W.3d at 289 (noting that while a person is not free to leave during a temporary
detention, the detention allows for an officer to investigate whether a crime had been
committed and does not constitute a custodial arrest); see also Akins v. State, 202 S.W.3d
879, 885 (Tex. App.—Fort Worth 2006, pet. ref’d) (noting that investigative detention
must last no longer than necessary to effectuate the purpose of the stop and must involve
actual investigation).
This evidence touches on virtually all of the Sheppard factors and demonstrates that
officers employed minimal force; the length of the detention was only as long as
necessary to investigate whether a crime had been committed; the detention was
conducted where Officer Arnold first saw McGruder; and Officer Arnold specifically
informed and McGruder acknowledged that this was merely an investigative detention
and not a formal arrest. Sheppard, 271 S.W.3d at 290; see Rhodes v. State, 945 S.W.2d 115,
117 (Tex. Crim. App. 1997) (“The officer’s testimony is a factor to be considered, along
with the other facts and circumstances of the detention, in determining whether an arrest
has taken place.”); but see Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San Antonio
1998, pet. ref’d) (stating that a police officer’s subjective view does not bear upon the
McGruder v. State Page 8
question of whether a suspect is in custody for purposes of Miranda if the subjective view
is not disclosed by the officer to the suspect). Therefore, viewing the evidence in the light
most favorable to the trial court’s ruling, we conclude that McGruder’s statements were
the product of a temporary detention, not a custodial interrogation. Thus, Miranda
warnings were not required. See Dowthitt, 931 S.W.2d at 263. And based on the foregoing,
we conclude that the trial court did not abuse its discretion by denying McGruder’s
motion to suppress. See Story, 445 S.W.3d at 732; see also Dixon, 206 S.W.3d at 590. We
overrule McGruder’s first issue.
II. THE JURY CHARGE
In his second issue, McGruder argues that the trial court erred by refusing to issue
an instruction in the jury charge on the lesser-included offense of theft. Specifically,
McGruder asserts that there was more than a scintilla of evidence supporting a finding
that he did not enter the victim’s residence; therefore, the jury should have been
instructed on theft.
We review a trial court's refusal to include a lesser-included-offense instruction
for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
2004). An offense is a lesser-included offense if, among other things, it is established by
proof of the same or less than all the facts required to establish the commission of the
offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Hall v. State,
225 S.W.3d 524, 527 (Tex. Crim. App. 2007). The Court of Criminal Appeals has set forth
McGruder v. State Page 9
a two-step analysis to determine whether a defendant is entitled to a lesser-included-
offense instruction. Hall, 225 S.W.3d at 535-36; Jones v. State, 241 S.W.3d 666, 670 (Tex.
App.—Texarkana 2007, no pet.). Under the "cognate-pleadings" test, as set forth in Hall,
the first step concerns whether a lesser-included offense exists based on a comparison of
the greater offense, as contained in the charging document, and the lesser offense,
without looking to the evidence adduced in that particular case. Hall, 225 S.W.3d at 526;
Jones, 241 S.W.3d at 670. “This is a question of law, and it does not depend on the evidence
to be produced at trial.” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Only
after the first step is answered positively do we proceed to the second step of conducting
an inquiry concerning whether there was sufficient evidence at trial to have required the
court to submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at
670-71.
The State concedes, and we agree, that the offense of theft can be a lesser-included
offense of burglary. See Phillips v. State, 178 S.W.3d 78, 82 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d) (“The offenses of theft and criminal trespass can be lesser-included
offenses of burglary.” (internal citations omitted)). We therefore proceed to the second
step in the Hall analysis.
Step two of the Hall analysis involves the consideration of whether there is some
evidence that would permit a rational jury to find that, if McGruder is guilty, he is guilty
only of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012);
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see also Hall, 225 S.W.3d at 536. “This second step is a question of fact and is based on the
evidence presented at trial.” Cavazos, 382 S.W.3d at 383. A defendant is entitled to a
lesser-included-offense instruction if some evidence from any source raises a fact issue
on whether he is guilty of only the lesser offense, regardless of whether such evidence is
weak, impeached, or contradicted. Id. However, a defendant is not entitled to a lesser-
included-offense instruction simply because the evidence supporting the greater offense
is weak, the evidence supporting the greater charge is discredited or weakened during
cross-examination, or the jury might disbelieve crucial evidence pertaining to the greater
offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). That is, “there must
be some evidence directly germane to a lesser included offense for the factfinder to
consider before an instruction on a lesser included offense is warranted.” Id. “The
evidence must establish the lesser-included offense as ‘a valid, rational alternative to the
charged offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).
Contrary to McGruder’s assertion, the record does not contain evidence
demonstrating that if McGruder is guilty, he is guilty only of the lesser included offense
of theft. Specifically, McGruder relies on the fact that the record does not show that he
used burglar tools or nondescript clothing during the commission of the offense.
However, the failure to recover evidence is not sufficient to warrant an instruction on the
lesser-included offense. See Cavazos, 382 S.W.3d at 385 (holding that a defendant is not
entitled to a jury instruction on a lesser-included offense based on mere speculation; “it
McGruder v. State Page 11
requires affirmative evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense”); see also Hampton v. State, 109 S.W.3d 437, 441
(Tex. Crim. App. 2003) (holding that the trial court erred in submitting an instruction on
the lesser-included offense of sexual assault because the failure to find or retrieve a knife
matching the description given by the complainant is not “affirmative evidence” that no
knife was used during the assault). We cannot say that McGruder proffered more than a
scintilla of evidence supporting the requested instruction.
Additionally, Officer Arnold testified that McGruder denied taking the items from
someone and stated that he got the items from a dumpster, despite the fact that none of
the items were grimy, McGruder’s clothes did not appear to be soiled, and several of the
items had cords and brackets hanging from them. McGruder’s statement to police
regarding the items found in a dumpster amounts to a denial that any criminal offense
occurred at all. Indeed, by asserting that he found the items in the dumpster, McGruder
suggested that these items were abandoned property and, thus, negated all of the
elements of burglary and theft. Accordingly, we cannot say that McGruder’s statements
to police regarding the items found in the dumpster constitutes affirmative evidence that
he was guilty of only theft. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001)
(“A defendant’s own testimony that he committed no offense, or testimony that
otherwise shows that no offense occurred at all, is not adequate to raise the issue of a
lesser-included offense.”). We therefore conclude that, based on our review of the
McGruder v. State Page 12
evidence, McGruder has failed to establish the second step in Hall. See Cavazos, 382
S.W.3d at 383; Hall, 225 S.W.3d at 536; Bignall, 887 S.W.2d at 24. Accordingly, we cannot
say that the trial court abused its discretion by refusing to issue an instruction in the
charge of the lesser-included offense of theft. See Threadgill, 146 S.W.3d at 666. We
overrule McGruder’s second issue.
III. SUFFICIENCY OF THE EVIDENCE
In his third issue, McGruder contends that the evidence supporting his conviction
is insufficient because the State failed to establish beyond a reasonable doubt that he was
the individual who entered Lu’s residence where the stolen property had been. We
disagree.
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, 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, 61 L. Ed. 2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer “to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. We may not re-weigh the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). The court conducting a sufficiency review must
not engage in a “divide and conquer” strategy but must consider the
cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
McGruder v. State Page 13
juries may not speculate about the meaning of facts or evidence, juries
are permitted to draw any reasonable inferences from the facts so long
as each inference is supported by the evidence presented at trial. Cary
v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting
inferences from the evidence in favor of the verdict, and we defer to that
resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
This is because the jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be given to the testimony.
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction
so long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to
support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State's burden of
proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was
tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim.
App. 2013). The “law as authorized by the indictment” includes the
statutory elements of the offense and those elements as modified by the
indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
B. Discussion
Under section 30.02 of the Penal Code, a person commits burglary of a habitation
“if, without the effective consent of the owner, the person . . . enters a habitation, or a
building (or any portion of a building) not then open to the public, with intent to commit
McGruder v. State Page 14
a felony, theft, or an assault . . . .” TEX. PENAL CODE ANN. § 30.02. Direct evidence of entry
is not required; that element may be established by inference, just as inferences may be
used to prove the elements of any other offense. Poncio v. State, 185 S.W.3d 904, 905 (Tex.
Crim. App. 2006); see Reyes v. State, 422 S.W.3d 18, 24 (Tex. App.—Waco 2013, pet. ref’d).
A defendant’s unexplained possession of property recently stolen from a residence
permits an inference that the defendant is the one who committed the burglary. Poncio,
185 S.W.3d at 905; see Reyes, 422 S.W.3d at 24.
Generally, if a defendant offers an explanation for his possession of the stolen
property, the record must demonstrate that the explanation is false or unreasonable.
Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977); see Reyes, 422 S.W.3d at 24.
Whether a defendant’s explanation for possession of recently stolen property is true or
reasonable is an issue to be determine by the trier of fact. Adams, 552 S.W.2d at 815; see
Reyes, 422 S.W.3d at 24. The falsity or unreasonableness of an explanation may be shown
by circumstantial evidence. Adams, 552 S.W.2d at 815; see Reyes, 422 S.W.3d at 24.
In the instant case, Jiacheng Lu testified that she left her apartment around 8:00 or
9:00 p.m. on the night of September 14, 2017, to visit a friend. When she left, one of the
windows in her apartment was open and her property was inside where she left it.1 When
1 Lu recounted that she left her apartment that evening because maintenance workers at the
apartment complex had repaired her bathtub and advised her to stay somewhere else for three days due
to the bad smell of chemicals used during the repair. Lu left a window open in the apartment to dissipate
the chemical smell faster.
McGruder v. State Page 15
contacted by the police in the early morning hours of September 15, 2017, Lu told police
that several items were missing from her apartment. She later identified the flat-screen
television, the Apple TV box, and the DVD player in McGruder’s possession as being
those taken from her apartment. Lu stated that she did not give McGruder consent to
enter her apartment, and she denied throwing her property away in a dumpster.
Further, as mentioned earlier, McGruder was detained by police while carrying
Lu’s flat screen television across the apartment complex at night. Moreover, McGruder
was in possession of Lu’s DVD player and Apple TV box concealed under his shirt.
Officer Arnold recounted that neither McGruder nor the items in his possession were
dirty, grimy, or appeared as if they had been in a dumpster. Furthermore, the devices
still had cords and brackets attached, thus supporting an inference that they had been
hastily removed.
In addition to the foregoing, the jury was shown surveillance video of McGruder
wandering around the apartment complex and approaching apartment doors, apparently
seeking an easy target. McGruder was observed approaching Lu’s apartment on the
surveillance video, and a short time later, Officer Arnold saw McGruder carrying Lu’s
flat-screen television.
Based on the above evidence, the jury was permitted to disbelieve McGruder’s
explanation that he found Lu’s property in a dumpster and to infer that McGruder
committed the burglary based on his possession of Lu’s recently-stolen property. See
McGruder v. State Page 16
Poncio, 185 S.W.3d at 905; Adams, 552 S.W.2d at 815; see also Reyes, 422 S.W.3d at 24.
Therefore, viewing the evidence in the light most favorable to the jury’s verdict, a rational
factfinder could have found beyond a reasonable doubt that McGruder burglarized Lu’s
apartment. See TEX. PENAL CODE ANN. § 30.02; see also Jackson, 443 U.S. at 318-19, 99 S. Ct.
at 2781; Zuniga, 551 S.W.3d at 732-33. Accordingly, we hold that the evidence supporting
McGruder’s conviction is sufficient. See TEX. PENAL CODE ANN. § 30.02; see also Jackson,
443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33. We overrule McGruder’s
third issue.
IV. CONCLUSION
Having overruled all of McGruder’s issues on appeal, we affirm the judgment of
the trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 22, 2020
Do not publish
[CRPM]
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