DocketNumber： 07-04-00103-CR
Filed Date： 9/22/2005
Status： Precedential
Modified Date： 4/17/2021
Before REAVIS and CAMPBELL and HANCOCK, JJ.
Following pleas of not guilty, appellant Richard Allen Click was convicted by a jury of sexual assault of a child in cause numbers 1016 and 1017. Punishment was assessed at cumulative sentences of 20 years confinement. Presenting two points of error, appellant questions whether (1) service of the indictment by a uniformed sheriff's deputy in the presence of the venire panel subverted his presumption of innocence, and (2) pursuant to article 38.072 of the Texas Code of Criminal Procedure, outcry statements of the alleged victims were proper. We affirm.
Only a brief recitation of the facts is necessary as there is no challenge to the sufficiency of the evidence to support appellant's conviction. Appellant is the biological father of victims A.C. and B.C. When B.C. was 14 years old, she confided incidents of sexual molestation committed by appellant against her to Jacqueline Huntington, a friend. At age 16, A.C. also told Jacqueline of acts of sexual abuse performed on her by appellant, including sexual intercourse.
By his first point, appellant maintains he was deprived of the right to a fair trial because the presumption of innocence was subverted when he was served with the indictment by an armed and uniformed deputy sheriff in the presence of the venire panel. We disagree.
By supplemental brief the State withdraws its assertion raised in its original brief that the record does not support service of the indictments in the presence of the venire panel and concedes appellant was served by a uniformed deputy sheriff in the presence of the venire panel. However, the State holds firm to its original contention that appellant's complaint is not preserved for review.
Appellant acknowledges he found no cases in support of his argument. However, relying on Randle v. State, 826 S.W.2d 943, 946 (Tex.Cr.App. 1992), and Scott v. State, 80 S.W.3d 306, 308-09 (Tex.App.-Fort Worth 2002, no pet.), he analogizes his complaint to cases where the presumption of innocence was impaired when a defendant appeared for trial in jail apparel. He argues that any indicia of guilt subverts the presumption of innocence. He further argues that impingement on his presumption of innocence is error of constitutional magnitude that requires review for harm under Rule 44.2(a) of the Texas Rules of Appellate Procedure.
As a prerequisite for appellate review, a defendant must make a timely request, objection, or motion stating the grounds with sufficient specificity to apprise the trial court of the complaint and obtain an adverse ruling. See Tex. R. App. P. 33.1(a). See also Martinez v. State, 91 S.W.3d 331, 337 (Tex.Cr.App. 2002) (discussing application of the "raise-it-or-waive-it" forfeiture rule). Additionally, the objection at trial must comport with the complaint on appeal. Trevino v. State, 991 S.W.2d 849 S.W.2d 854-55 (Tex.Cr.App. 1999); Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed. 2d 545 (1997).
The defendants in the cases relied on by appellant preserved their complaints for review. In Randle, counsel objected to his client being placed before the jury in jail clothes, and in Scott, a motion for continuance was presented requesting additional time to secure appropriate clothing. Both courts found the presumption of innocence had been subverted by requiring the defendants to proceed to trial in jail-issued garb.
In the instant case, the record reflects that after dispensing with pretrial motions and shortly before beginning voir dire, defense counsel announced to the trial court:
[t]he sheriff just served my client with a copy of the indictment, and there is a statutory period of presentation required, prior service of an indictment before you go to trial. And what I'm showing you, Judge, what I have just been served is a precept to serve copy of indictment . . . .
A brief discussion ensued on whether service of the indictment had been waived because it had not been raised during pretrial hearings. Counsel objected to any prior hearings on the ground he was not representing appellant at that time. No objection, however, was raised on impingement of appellant's presumption of innocence. We conclude appellant's complaint was not preserved for appellate review. (1) Point of error one is overruled.
By his second point of error, appellant contends the use of hearsay statements of the child victims by outcry witness Jacqueline Huntington was improper under article 38.072 of the Texas Code of Criminal Procedure Annotated (Vernon 2005). Section 1 of article 38.072 provides for application of the article to a proceeding in the prosecution of an offense under certain provisions of the Penal Code if committed against a child 12 years of age or younger. Specifically, appellant asserts the victims were above age 12 at the time of the charged offenses making article 38.072 inapplicable. We agree the statute was not implicated, but for the following reasons, overrule appellant's contention.
A.C. testified that when she was 11 or 12 years old, appellant began molesting her by rubbing her private parts and digital penetration. At age 13, the abuse escalated to biweekly sexual intercourse until she was 16. Appellant was indicted in cause number 1016 for intentionally and knowingly causing penetration by his sexual organ of A.C.'s sexual organ. He was not, however, indicted for acts of indecency with her or penetration by his finger when she was 12 years of age or younger.
B.C.'s testimony reflects that when she was ten or 11 years old, appellant began touching her inappropriately and would frequently ask if he could see whether her breasts were developing and whether he could feel her vaginal area for pubic hair growth. She began to fear appellant and refused his advances. When she was 14 and refused to cooperate, appellant threw her down on her bed with enough force to break it, secured her hands over her head with one of his hands, and with his free hand pulled her shorts and underwear down and inserted his finger into her vagina. He was indicted in cause number 1017 for intentionally or knowingly causing penetration of B.C.'s sexual organ by means of his finger, but was not indicted for indecency with her for incidents that occurred when she was 12 years old or younger.
Both victims confided the acts of sexual abuse to Jacqueline Huntington and she was designated as an outcry witness under article 38.072. An outcry witness is the first adult to whom the child victim makes a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2). An outcry statement is an exception to the hearsay rule of exclusion. Dorado v. State, 843 S.W.2d 37, 38 (Tex.Cr.App. 1992) (en banc).
Article 38.072 applies to prosecutions of certain offenses committed against a child 12 years old or younger. The victim's age when the offense is committed triggers whether the statute will apply, not the victim's age at the time the outcry statement is made. See Harvey v. State, 123 S.W.3d 623, 627-29 (Tex.App.-Texarkana 2003, pet. ref'd). The evidence is uncontradicted that the charged offenses in the underlying cases occurred when both victims were older than 12. Thus, we conclude article 38.072 does not apply and Jacqueline's testimony was not admissible as outcry evidence. (2)
The State contends appellant waived his complaint. When Jacqueline was testifying defense counsel lodged the following objection, "Your, Honor, I'm going to object at this point unless this witness has been identified as the outcry witness. This is a hearsay statement." Appellant's complaint on appeal is improper application of article 38.072 due to the victims' ages. We agree the complaints are not similar, but a general hearsay objection is sufficient to preserve a complaint that proffered outcry statements are inadmissible hearsay. See Lankston v. State, 827 S.W.2d 907, 910-11 (Tex.Cr.App. 1992); Mosley v. State, 960 S.W.2d 200, 203 (Tex.App.-Corpus Christi 1997, no pet.).
The State suggests by footnote that the victims' hearsay statements may have been admissible under Rule 803(24) of the Texas Rules of Evidence as statements against [social] interest. We acknowledge that a trial court's ruling on admissibility of evidence will be sustained if it is correct on any theory of law even if the wrong reason is given; Harvey, 123 S.W.3d at 630; however; a less burdensome analysis is to resolve appellant's complaint by conducting a harm analysis on improper admission of the statements.
Improper admission of hearsay evidence is non-constitutional error reviewed for harm under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998). See also Dunn v. State, 125 S.W.3d 610, 614-15 (Tex.App.-Texarkana 2003, no pet.). We disregard the error as harmless if it does not affect appellant's substantial rights. See Tex. R. Evid. 103(a). Error in admission of improper outcry statements is harmless when other properly admitted evidence establishes the same facts. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Cr.App. 1999), cert. denied, 528 U.S. 956, 120 S. Ct. 384, 145 L. Ed. 2d 300 (1999); Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref'd).
Jacqueline's testimony concerning the victims' statements was vague regarding the specific acts of sexual abuse. It established how the abuse surfaced when A.C. realized appellant might be committing acts against her younger sister, B.C. A.C. recounted the abuse she suffered to B.C., which caused her to become extremely upset. B.C. went to the diner where Jacqueline worked and confided that appellant had touched her private parts inappropriately. Jacqueline telephoned A.C. to come to the diner and discuss the matter. After more details were disclosed, Jacqueline called the victims' mother and the sheriff.
More explicit facts were testified to by A.C. and B.C. than those offered by Jacqueline. A.C. testified that appellant began molesting her by rubbing her arms, stomach, and private parts both over and under her clothes. He also penetrated her with his finger. When she was 13 he began rubbing her and then said he wanted to try something else that would not hurt her. He pulled her pants and underwear down and laid on top of her and had sexual intercourse with her. She testified she was scared and that appellant required her to have sex with him as a condition of being allowed to see her boyfriend.
B.C. testified she began to fear appellant when she was in the fourth grade. He would repeatedly ask to see her breasts and check for pubic hair growth. He heeded her refusals until she was 14 when he threw her down on her bed and forcibly penetrated her with his finger. Given the testimony of A.C. and B.C., Jacqueline's testimony is rendered harmless. Point of error two is overruled.
Accordingly, the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
1. Service of an indictment is not evidence of guilt. 2. Our conclusion pretermits a discussion of appellant's complaint that he was denied
a reliability hearing under section 2(b)(2) of the statute. Moreover, appellant did not object
to the trial court's failure to conduct a reliability hearing, which is a prerequisite for appellate
review. Diaz v. State, 125 S.W.3d 739, 743 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).
Ruston suffered from recurrent experiences, or episodes, of depressive behavior and anxiety accompanied by an ongoing struggle with abstinence from chemical dependency. Davis concluded that Ruston’s bipolar disorder and drug dependence could interfere with his interaction with C.H.S. Although Ruston was engaged in a program of self help, individual therapy, and medical intervention, Davis opined there could be a problem if he did not maintain stability in his behavior and treatment program.
After his initial assessment, Davis referred Ruston to Randolph for individual therapy and Patel for medication management. Davis believed a continuing relationship between Ruston and his medical providers was important in terms of Ruston’s visitations with C.H.S. because of Ruston’s problematic interactions with Holly, his desire to see C.H.S., and his report of failed treatment for substance abuse and discontinuance of his medication for his bipolar condition. He recommended Ruston continue interaction with Patel and Randolph until he and his doctors concurrently agreed that Ruston no longer needed medication and/or individual therapy.
At trial, Randolph testified Ruston initially started individual psychotherapy for his bipolar disorder in January 2003. However, in December 2003, Ruston terminated his therapy with Randolph until Davis referred him in May 2007. Randolph indicated that, since Davis’s referral, Ruston had been regularly attending AA meetings at least four times a week as well as pursuing a spiritually-based treatment. He further testified Ruston was compliant with his psychotherapy and actively participating in cultural, charitable, and religious organizations. Randolph considered Ruston’s vocational success managing a brokerage firm as a strong indicator of the success of his treatment. As a result of Ruston’s progress, their sessions became less frequent. Randolph opined his therapy sessions were no longer necessary.
Patel testified he first saw Ruston following his December 2005 relapse. At that time, Ruston was struggling with symptoms of severe depression and anxiety. His initial diagnosis was bipolar disorder–type one, generalized anxiety disorder and substance abuse. In his opinion, Ruston was always going to have his symptoms which would reappear if he ceased medicating and there would always be a concern he would use drugs again. He described Ruston’s illness as life-long.
Holly, a pediatrician, testified that, while they were dating, Ruston hid his drug dependence problem and diagnosis of bipolar disorder. The month after their wedding, the couple sought marital counseling after Ruston yelled at her concerning money matters, called her obscene names, and began throwing things in the house. After Ruston started seeing Patel and reestablished a medication regimen for his bipolar disorder, his mood became more stable; however, Holly remained concerned. She began counting his medicine and determined there were times when he was not taking his medication. Holly testified Ruston indicated he didn’t think he needed his medication and that these pronouncements were usually followed by mood swings, agitation, distraction, destructibility, and pressured speech.
During the divorce proceedings, Holly sought a court order that would monitor Ruston’s compliance with his treatment for his bipolar disorder and substance abuse to assure C.H.S. would be going to a safe environment on visitations. Determining whether Ruston was compliant with his medication and treatment was paramount to Holly.
Ruston, a vice-president and general manager of operations of a food brokerage, testified he discontinued his treatment in December 2003 because, at the time, he did not want to accept his diagnosis. Ruston could not explain why he relapsed in December 2005. He testified that since he started seeing Patel he had followed his prescription drug program with the exception of a period of time following surgery when he ceased taking his medication due to doctors’ orders. He also acknowledged that he had a substance abuse problem and was bipolar.
On May 29, 2008, the trial court signed a Decree of Divorce dissolving the marriage between Ruston and Holly. The decree appointed Ruston and Holly as joint managing conservators of C.H.S., with Holly having the right to establish the child’s primary residence. The decree also contained provisions pertaining to counseling for Ruston and Ruston’s possession of and access to the child.
Discussion
Ruston asserts that the decree’s provisions governing his possession of and access to C.H.S. between the ages of three and five are invalid because the imposition of a limited possession schedule is unsupported by the record. He next asserts the trial court exceeded its authority by (1) requiring him to continue taking medications prescribed for his bipolar disorder, (2) requiring him to continue counseling with a mental health professional, (3) requiring him to continue to attend Alcoholics Anonymous or Narcotics Anonymous weekly, and (4) requiring a mental health professional to submit a written report every six months.
Holly asserts the record contains adequate evidence to support the modified order of possession and access. She also asserts the trial court did not exceed its authority by requiring Ruston to “continue” therapy, medication, and periodic reporting that was in place during the divorce proceedings.
I. Standard of Review
A trial court has broad discretion to fashion the terms of a decree related to custody, visitation, and possession; see In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and may be reversed only if it appears that the court abused its discretion in light of the record as a whole. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). See In Interest of Doe, 917 S.W.2d 139, 141 (Tex.App.–Amarillo 1996, writ denied). Furthermore, we may not reverse the trial court’s judgment simply because we disagree with the outcome. Rather, we must conclude that the decision lacked basis in fact or law or involved a misapplication of fact to law. In re C.R.T., 61 S.W.3d 62, 65 (Tex.App.–Amarillo 2001, pet. denied).
Under the abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, “but are relevant factors in assessing whether the trial court abused its discretion.” Ditraglia v. Romano, 33 S.W.3d 886, 889 (Tex.App.–Austin 2000, no pet.) (quoting Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.–Austin 1997, no pet.). Further, there is no abuse of discretion where the record contains some evidence of a substantive and probative character in support of the trial court’s decision. Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.App.–Houston [14th Dist.] 2007, no pet.).
II. Conservatorship – Possession and Access
A. Statutory Scheme
In matters of conservatorship, the public policy of this State is to assure continuing contact between children and parents who have established the ability to act in their child’s best interest, provide a safe, stable, and nonviolent environment for the child and encourage parents to share in their child’s development after separation or divorce. Tex. Fam. Code Ann. § 153.001 (Vernon 2008). When determining issues related to conservatorship or possession of and access to the child, the best interest of the child is the primary consideration. § 153.002. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
If, as here, both parents are appointed as the child’s conservators, the trial court specifies the rights and duties that are to be exercised by the parents. § 153.071. While the guidelines established in the standard possession order are intended to guide courts as to the minimum possession for a joint managing conservator; § 153.251(a), there is a rebuttable presumption that the standard possession order provides the reasonable minimum possession of a child for a parent named as a joint managing conservator; § 153.252(1), and that the order is in the child’s best interest. § 153.252(1) & (2).
If there is sufficient evidence to rebut this presumption, however, the trial court may deviate from the standard possession order. § 153.256. See Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex.App.–Dallas 2004, no pet.). When deviating from the standard possession order, the trial court may consider: (1) the age, developmental status, circumstances, needs, and the best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor. § 153.256. Further, a reviewing court’s holding that a trial court did not abuse its discretion implies that the evidence contained in the record rebutted the presumption that the standard possession order was reasonable and in the child’s best interest. See Gray v. Gray, 971 S.W.2d 212, 216 n.2 (Tex.App.–Beaumont 1998, no pet.) (citing In Interest of Doe, 917 S.W.2d 139 (Tex.App.–Amarillo 1996, pet. denied)).
B. Standard Possession Order–Best Interest of The Child
In determining the issues of conservatorship and possession of a child, the trial court is given wide latitude in determining the best interest of the child and will be reversed only for an abuse of discretion. In re C.R.T., 61 S.W.3d at 65 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). This is, in part, because the trial court is in a better position having “faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent.” Coleman v. Coleman, 109 S.W.3d 108, 111 (Tex.App.–Austin 2003, no pet.) (citing Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex.App.–El Paso 1997, no writ)). Thus, when the testimony of witnesses is conflicting, this Court will not disturb the credibility determinations made by the trial court or jury and we will presume that the factfinder resolved any conflict in favor of the verdict. See Coleman, 109 S.W.3d at 111; Minjarez v. Minjarez, 495 S.W.2d 630, 632 (Tex.Civ.App.–Amarillo 1973, no writ).
Ruston asserts that the record does not adequately support the trial court’s final decree restricting his possession of and access to C.H.S. between the ages of three and five years old. Specifically, he asserts the restrictions are unreasonable because his drug relapses occurred more than two years prior to the final hearing, his cessation of his bipolar medication in March 2006 was at the request of his doctors after he suffered a bad reaction following surgery, and he has successfully served as J.S.’s primary caretaker since March 2005.
Having reviewed the hearing transcript, the final decree, and the trial court’s findings of fact and conclusions of law, we find the trial court restricted Ruston’s possession and access to C.H.S. due to issues related to Ruston’s drug dependence, diagnosis of a type one bipolar disorder, history of drug relapses, and past medication cessation. During a five year period preceding the final hearing, Ruston had undergone four drug relapses where he used methamphetamine. His relapses in 2002-2003 occurred when he was attending AA meetings and after he began receiving treatment from a physician for his bipolar condition. There was also evidence that Ruston did not take his bipolar diagnosis seriously and quit his medication, AA meetings, and medical treatment by September 2005 at the latest. Thereafter, he suffered two additional drug relapses in mid-to-late December 2005.
Holly testified Ruston hid his drug dependence and underplayed his bipolar diagnosis while they were dating and after they were married. When Ruston suffered his two drug relapses in mid-to-late December 2005, he simply disappeared and abandoned his parenting responsibilities. She also testified that, after Ruston began seeing Patel in December 2005, there were times Ruston indicated he didn’t need his medication and would subsequently suffer from mood swings, agitation, distraction, destructibility, and pressured speech. She counted his pills and determined he was not taking his medication as prescribed. She also testified that Ruston provided little care for C.H.S. after he was born. During the interview process with Davis, Ruston reported he was angry and verbally aggressive with Holly and described recurrent angry exchanges with her during their relationship.
Given this evidence, we cannot say that the trial court abused its discretion by issuing a modified possession order. Whether evidence of substance abuse is too remote is generally left to the sound discretion of the trial court. Kortla, 718 S.W.2d at 855 (custody not in the best interest even though appellant had not used drugs for two years); Standifer v. Schmidt, 366 S.W.2d 947, 948 (Tex.Civ.App.–San Antonio 1963, no writ) (custody not in the best interest even though divorced spouse had not used narcotics for two years and evidence showed spouse was “otherwise a fine person”). Finally, although Ruston produced evidence that he has successfully served as J.S.’s caretaker following his first divorce, the ages of the two children are substantially dissimilar–at the time of trial, C.H.S. was less than two years old while J.S. was in excess of six years old.
Accordingly, we find the trial court did not abuse its discretion by entering the modified possession order. See In re Walters, 39 S.W.3d at 286-87. Issue one is overruled.
III. Continuing Medical Treatment and Reporting Requirement
The Texas Family Code provides that, if the trial court determines that the parties have a history of conflict in resolving an issue of conservatorship or possession and access, the court may order a party to participate in counseling with a mental health professional. § 153.010. See Brook v. Brook, 865 S.W.2d 166, 174 (Tex.App.–Corpus Christi 1993), aff’d, 881 S.W.2d 297 (Tex. 1994). Moreover, regarding the trial court’s ability to fashion an order regarding possession and access, the Texas Supreme Court has stated as follows:
we are of the view that a suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child. The courts are given wide discretion in such proceedings. [citations omitted]. Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. [citations omitted]. It is beside the point that in the instant proceeding the trial court, whether erroneously or not, construed the pleadings of petitioner as seeking only a modification of visitation rights; the point is that once the child is brought under its jurisdiction by suit and pleading cast in terms of custody and control, it becomes the duty of the court in the exercise of its equitable powers to make proper disposition of all matters comprehended thereby in a manner supported by the evidence.
Leithhold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (emphasis added).
At the final hearing, Davis testified that Ruston’s bipolar disorder and drug dependence would interfere with his interaction with C.H.S. if Ruston did not maintain stability in his behavior and treatment program. He opined that Ruston required ongoing treatment with Randolph and Patel because of his problematic interactions with Holly, his desire to see C.H.S. and his history of failed treatment for substance abuse and bipolar disorder. Davis recommended that Ruston continue interaction with Randolph and Patel until Ruston and his doctors concurrently agreed that he no longer needed medication and/or individual therapy.
Patel described Ruston’s illness as life-long. He indicated there would always be a concern that Ruston’s symptoms would reappear if he ceased medicating and used drugs again. In fact, he testified that it is common for a person with a history of substance abuse intermixed with a bipolar condition, once in awhile, to experience substance abuse relapses. Although Ruston had a “very good record” over the past two years of compliance with his prescription drug program and had not used illegal drugs since he started treatment, Patel testified “[t]he concern is always there, once a person has issues with drugs and alcohol, the concern is always there.”
Given Ruston’s history of discontinued treatment for bipolar disorder, drug relapses and his future prognosis, we cannot say it would be an abuse of discretion to impose the conditions ordered, i.e., continued counseling and prescription medical treatment for his bipolar condition, weekly attendance at AA meetings, and a status report every six months from a mental health professional, as a condition of possession and access. See Brook, 865 S.W.2d at 174 (not an abuse of discretion to order psychological counseling indefinitely). That’s not, however, what the decree of divorce ordered.
Ruston contends the trial court’s decree deprives him of the protections afforded incapacitated persons under the Texas Probate Code because the order is not related in any manner to the child the subject of this suit. See Tex. Prob. Code Ann. §§ 601-726 (Vernon 2003). We agree. The conditions now appear in the decree as stand-alone orders of indefinite duration. They are not conditions precedent to possession and access, and compliance is not a requirement in order to obtain or enhance Ruston’s rights of possession and access. As such, they do not fall within the broad discretion of the trial court afforded by § 153.010 of the Texas Family Code. Accordingly, Ruston’s second issue is sustained.
Conclusion
Because we are unable to determine how the trial court would exercise its discretion in relating the requirements imposed to the rights of possession and access granted, we reverse the trial court’s judgment in part and delete the two paragraphs set forth in footnote 3 supra, and remand this cause for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
Patrick A. Pirtle
Justice
.