### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00227- CR

Terr ance Dam ien F ord, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 644 16, TH E H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Terr ance Damien For d of the offe nse of possession of 400 g rams or more of a controlled substance with intent to deliver, and assessed his punishment at confine ment for 60 y ear s in the Texas Depa rtment of Criminal J ustice and a $250,000 fine. See Tex. Hea lth & Safety Code § 481.112(a) , (f)

. On appea l, appellant complains about th e d en i al of his pretria l motion to suppress, the admission o f ev idence of his prior criminal history , and the imposit ion of court-a

ppointed attorney ’s fee s. Sustaining appellant’ s third point of err or, we modify the judg ment of convic tion and, as modified, af firm the judg ment.

BACK GR OUND Offic ers from the Killeen Police Depa rtment went to 3701 YS Pak Court, Apar tment H , to se arc h for a fema le fug itive who had listed that a ddress on her bail bond rec ords. Two office rs approa ched the front door of the residenc e while another office r cover ed the rea r of theresidenc e. As they approa ched the front door, an adult male, later identified as appellant, opened the

inner door behind the outer secur ity door. The office rs could immediately smell the distinctive odor 1 of burning marijuana coming fr o m i n side the apar tment and could see linge ring smoke inside the room. The office rs, in standard police uniform, identified themselves to app el lant and advised him that they wer e looki ng for the fug itive female . Appellant informe d them that she did
not live there and he did not know who she was. To further investigate the fug itive’s wher eabouts,

one of the office rs, Offic er Richard Br adley , asked appellant to produce identification. The office r coul d s ee t wo other males, later identified as brothers Keith L amar Warren and Kevin L amar Warren, in the living room. After the office r’s reque st for identification, appellant walked back into the l iving room are a and Offic er Bra dley saw all three men i m m ed i at el y g o into the ki tchen. The

o ff i ce r co uld not see into the kitchen but hear d shuffling and movement noises coming from th e kitchen ar ea . Ap p el lant returne d to the door without identification. When Offic er Br adley ag ain asked f or identification, appellant went upstairs indicating he neede d to retrieve it from there

. Be coming conce rned for office r safe ty , Offic er Br adley tried the secur ity door and found it to be locked. Appellant then returne d downstairs, still without identific ation. The office r asked a third time f

or identification and appellant retrie ved a photo ide ntification from a cig ar box

on the television just inside the doorwa y . Appellant then remove d key s from his pocket, unlocked

The rec ord ref

lects that this outer secur ity door, called the “burg lar bar door” by the parties, 1 consisted of meta l bars and a mesh scre en that allowe d the passag e of a ir.

2the secur ity door, opened the door, stood aside, and motioned for the office rs to enter the apar tment. 2 The office rs enter ed the apar tment and Offic er Br adley ag ain advised the men that they wer e looking for the fema le fug itive. He also asked about the marijuana smoke in the room. At that point, appellant produce d a bag g ie of marijuana and g ave it to Offic er Br adley , stating that it wa s all that they had. The men indicated that they had bee n smoking it while watching a g ame on tele vision. Concerne d that all three men had quickly g one into the kitchen as soon as they hear d the name of the fug itive the police soug ht, and unawa re of whether other s wer e prese nt in the apar tment, Offic er Br adley we n t i n t o t h e kitchen are a to chec k for the fug itive and conduct a protec tive swee p. Upon enter ing the kitchen, the office r immediately saw a larg e Py rex measuring cup that contained a

milky white liquid nex t to the sink. He also observe d that one of the doors to

a ca binet above the stove was open and ins ide he saw a box of Z iploc bag g ies, a dig ital scale, a nd a clear plastic container

that had a white powder

residue on it. There was a portion of t he kit chen cabine try that formed an elbow or L shape and, based o n h i s prior experience of finding a person

conce aled in such a cabine t, Offic er Br adley believed it might be larg e enoug h to hide a person. He opened the cabine t door to chec k and saw an open shoe box containing four Py rex measuring cups with a white crusty residue on them. Fr om hi s y ea rs o f l aw enfor ceme nt experience , the office r

rec og nized the items he observe d in the kitchen as those used in the manufa cture of cra ck coca ine. At this time, Offic er Br adley terminated any further protec tive swee p of the kitchen and apar tment.

This testimony was contra dicted at the suppression hear ing b y ap p ell ant’s testimony

. 2 Appellant testified that he only unlocked and opened the secur ity door to provide the office r with his identification but Offic er Br adley put his foot in the door, pulled the door open, and, along with the other off icer who had he r g un draw n, forc ed his way into the apar

tment. 3After consulting with his serg eant, Offic er Br adley notified a detect ive with the

Killeen Police Org anized Crime Unit who, based in part on the observations of Officer Br adley , obtained a war

rant to sear ch appellant’s apartment. During the s ear ch con d u ct ed p u rsuant to that

war rant, office rs discovere d 3.2 kilogr ams of coca ine, 602 gra ms of marijuana , 330 g rams of promethazine, a hand gun, and various d ru g p ar ap h erna lia. This discovery , in combination with additional police investigation, p ro m p t ed the office rs to obtain a subsequent sear ch war rant for another ap ar t m en t located in the same complex, Apar tment C, wher e one of the Warren brothers resided. The sear ch conducte d pursuant to that war rant yielded an additional 30 g rams of coca ine, another handgun, and more drugpara pherna lia. Appellant and both Warren brothers wer e arr ested that night and subsequently eac h char g ed by indictment with posses s i o n o f 400 g rams or more of a controlled substance, namely

coca ine, with intent to deliver. All three filed separ ate pretria l motions to suppress, and eac h adopted the motions filed by his co-de fenda nts. The motions wer e consolidated for the suppression hear ing. 3 The trial court denied all of the defe nse motions t o s u p p re s s. A jury subsequently convicted ap p el l an t o f the offe nse as char g ed in the indictment, and assessed his punishment at 60 y ear s ’ imprisonment and, in addition, assessed a $250,000 f ine.

The trial court actua lly conducte d two hear ings on the m o t i o ns to suppress. In the first 3 h ear ing, the defe ndants soug ht to suppress evidenc e derive d from the war rantless entry int o appellant’ s apar

tment. I n the second hear ing, conducte d on two separ ate day s, the defe ndants soug ht to suppress evidence seized during the s ear ches of appellant’ s apar t m en t and Warren’ s apar tment that wer e conduc ted pursuant to the subseque ntly obtained sea

rch w arr ants. 4DISCUSSIO N Denial of Motion to Supp ress I n his f irst point of err or, appellant contends that the trial court err ed in de nying his motion to suppress beca

use the evidenc e was seized as a result of an unlawful war rantless entry into his apartment “ without consent, probable cause , or exige nt circumstanc es.”

We revie w a trial court’s ruling o n a m o t i o n to suppress evidenc e for an abuse of discretion, applying a bifurca ted standard of revie w wher e we g ive almost total defe renc e to a trial judge ’s finding s of historical fac t and cre dibilit y deter minations that are supported by the rec ord, but revie w questions of law de novo. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013); Crain v. State , 315 S.W .3d 43, 48 (Tex. Crim. App. 2010). We will affirm the tria l court’s ruling if it i s re asonably supported by the record and is corr ect under any theory of l aw applicable to the

case . Y oung v. State , 283 S.W .3d 854, 873 (Tex. Crim. App. 2009). The Four th Amendment to the United States C o n s t i t ution prohibits unrea sonable

sear ches and seizures. Limon v. State , 340 S.W .3d 753, 756 (Tex. Crim. App. 2011); see U.S. Const.

am en d

. I V; Illinois v. Rodriguez , 497 U.S. 177, 179 (1990). The entry into a residenc e by po l i ce office rs is a “sea

rch” for purposes of the Four th Amendment. Limon , 340 S.W .3d at 756; Valtierra

v. State , 310 S.W .3d 442, 448 (Tex. Crim. App. 2010). A war rantless police entry into a residenc e is presumed unre asonable unless the entry falls within one of a

well-de fined g roup of e x ceptions. Limon , 340 S.W .3d at 756; Valtierra , 310 S.W .3d at 448.

Vo l u n t ar y consent is one such exception. Rodriguez , 497 U.S. at 181; Limon , 3 40 S.W .3d at 756; Valtierra , 310 S.W .3d at 448. An owner ’s or occupa nt’s voluntary consent

5makes the entry into a residenc e by police office rs constitutionally “re asonable .” Rodriguez ,

497 U.S. at 181; Valtierra , 310 S.W .3d at 448. Consent may be given orally or by action, or may be sho wn b y ci rcumstantial evidenc e. State v. W eave r , 349 S.W .3d 521, 526 (Tex. Crim. App. 2011); Valtierra , 310 S.W .3d at 448. The va lidity of an alleg ed consent to sear ch is a question of fac t to be deter

mined from the totality of the circ umstances. Oh i o v. R o b i nette , 519 U.S. 33, 40 (1996); W eave r , 349 S.W .3d at 526; Valtierra , 310 S.W .3d at 448. The State must prove voluntary
consent by clea

r and convincing evidenc e. W eaver , 349 S.W .3d at 526; Valtierra , 310 S.W .3d at 448. At the suppression hear ing, the trial court hear d testimony from Offic er Br adley that appell an t invited the officers into his apar tment by unlocking the s ecur ity door, opening the door, motioning for the office rs to come in, and ste pping ba ck to ac commodate their entry

. I n his brief, appellant asser

ts that the office rs came into his apar tment without permission, presumably based on his testimony

at the suppre ssion hear ing. Howeve r, at a suppression hear ing, the trial judg e is the sole trier of fac t and ex clusive j udg e of the credibility of t he witnesses and the weight to be given
to their testimony

. St. George v. State , 237 S.W .3d 720, 725 (Tex. Crim. App. 2007); Guzman

v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). Fur ther, unless the trial court abuses its discretion by making a finding unsupported by the record, we defer to the trial court’s findings of fac t and will not disturb them on appea l. State v. Johnson , 336 S.W .3d 649, 657 (Tex. Crim. App. 2011); Guzman , 955 S.W .2d at 89; Miller v. State , 335 S.W .3d 847, 854 (Tex. App.—Austin 2011,

no pet.). The trial court made fac t finding s and conclusions of law that Offic er Br adley was lawfully at appellant’s apar

tment to look for the fe male fug itive and that he pr operly enter ed the apartment

6only afte r being invited into the residenc e by appellant. See Gallups v. State , 151 S.W .3d 196, 201

(Tex. Crim. App. 2004) (conse nt to enter home could be inferred fr o m d efendant’s action of motioning offic er to c ome forw ard) . These f indings a re suppor ted by the re cord. Consent to enter a residenc e, howeve r, does not, without more , provide consent for

a police office r to sear ch the entire residenc e or objects there in. Valtierra , 310 S.W .3d at 448. The scope of a sea

rch is usually

define d by

its ex presse d object. Florida v. Jimeno , 500 U.S. 248, 251 (1991); W eave r , 349 S.W .3d at 526. The “standa rd for measuring the scope of a suspect’s consent under the Four

th Amendment is that of ‘objec tive’ rea s o n ab l eness—what would the ty pical

rea sonable person have understood by the exchang e betwee n the office r and the suspect? ” Jimeno , 500 U.S. at 251; W

eave r , 349 S.W .3d at 526. Her e, appellant invited the pol ice officer s into his apartment during a conversation in which he was advised that the police wer e at his apar tment looking for a fema le fug itive. Ba sed

on the exchang e betwee n Offic er Br adley and appellant, a rea sonable person would have understood that t h e p u rp o se for which the office rs entered the apar tment, with appellant’ s permission, was to

sear ch for the fug itive. After enter ing the apar tment, Offic er Br adley reiter ated the office rs’ purpose of s ea rc h i n g fo r the fug itive. He then went into the kitchen—the are a wher e he saw the men g o immediately afte r he initially advised appellant that they wer e looking for the fug itive and wher e he then hear d shuffling and movement—to chec k for the fug itive. The office r saw contra band in plain view and observe d a kit chen cabinet that he thought might possi bly conce al a person. He o p ened the cabine t to chec k for the fug itive a nd found additional contra band, and immediately cea sed this activity

. He did not sear ch the kitchen or apar tment any further

. His sear ch was consistent with the

7consent a

ppellant g ave when he invited the office rs into his apar tment know ing they

wer e looking for the fug itive. See Miller v. State , 393 S.W .3d 255, 266 (Tex. Crim. App. 2012) (“I f an office r is invited or permit t ed t o come into a house for a particula r purpose (such as to look for a particula r person or object), the scope of the consent to enter normally includes consent to sear ch those are as in which the person or object would rea sonably be found.” (quoting Valtierra , 310 S.W .3d at 450)).

Another exception to the nece ssity of a sear ch war ra n t i s a “prote ctive swee p” perf ormed by police off

icer s. Maryland v. Buie , 494 U.S. 325, 327 (1990). A protec tive swee p is

a “quick and limit ed sear ch of premises

. . . conducte d to protec t the safe ty of police office rs or others.” Reasor v. State , 12 S.W .3d 813, 8 1 5 (T ex. Crim. App. 2000). The swee p must not be a “full sear ch of the premises” and the sear ching office rs must possess “a rea sonable belief based on specific and articula

ble fac ts that the are a to be swept harbor s an individual posing a dang er to those on the ar rest sce ne.” Id. at 816. Offic er Br adley testified that as he approa ched the apar tment, th e i n n er d oor was opened an d h e s m el l ed the odor of burning marijuana and saw linge ring smoke inside. Once he advised appellant that they wer e looking for the fema le fug itive, he saw appellant and the two other

m en move quickly into the kitchen, wher e he was unable to observe them, and he then hear d shuffling and movement. After entry into the apar tment on appellant’ s invitation, the three men admitted smoking marijuana and appellant relinquished possession of more of the illega l substance. Offic er Br adley expressed that under these circ umstances—the quick retre at to the k i t ch en in response to the mention of the fug itive’s name, the noises he subsequently hear d coming from that

are a, and the prese nce of narc otics—he deter mined that he neede d to pe rfor m a sec urity

swee p for

8office r safe ty

. The office r testified to specific and articula ble fac ts permitting the trial court to find that the officer had an objectively rea sonable belief t hat a person in the ki tchen p o s ed a dang er to him or other persons in the apar tment, justify ing his entry into the kitchen for a brief sear ch for any other persons prese nt. See Ramirez v. State , 105 S.W .3d 730, 743 (Tex. App.—Austin 2003, no pet.) (off icer was permitted to swee p g ara g e room in order to establish that no individuals wer e prese nt). Offic er Br adley ’s sear ch was limit ed to a protec t i v e swee p of the kitchen are a—whe re the men

scurr ied and he hear d the suspicious activity —and was limit ed to those place s wher e he believed a person may

be found. I n addition to the fac t finding s and conclusions of law discussed previously , the trial
court made fac t finding s and conclus ions that Offic er Br adley (1) proper ly opened the kitchen cabine t door to sear ch for a conce aled person, (2) conducte d a proper protec tive swee p of the interior

o f the apar

tment, and (3) made proper plain-view observations of narc otics and nar co t i cs para pherna lia. The court further conclude d that the observations Offic er Br adley made established p ro b ab l e ca use for the sear ch war rant of appellant’ s apar

tment and that the subsequent sear ch of ap p e llant’s apar

tment, along with the investigation conducte d in connec tion with that sear ch, yielded additional information and evidenc e that established probable cause to sear ch Apar tment C, Kevin Warren’ s apar

tment. See State v. Duarte , 389 S.W .3d 349, 354 (Tex. Crim. App. 2012) (proba ble

cause exis ts when, under totality of circ umstances, there is fair probability that co ntraba nd or evidenc e of crime will be found at specifie d location at time war rant is issued). The rec ord supports these finding s and conc lusions.

9Viewe d in the light most favor able to the trial court’s ruling , the rec ord ref lects that appellant invited the police into his apar tment when they advised him that they wer e sea rchingfor the fema le fug itive and that once inside Offic er Br adley ’s sear ch did not exceed the permissi ble scope of appell an t ’s consent nor that of a protec tive swee p. The sear ch conducte d during the protec tive swee p and pursuant to appellant’ s consent yielded evid en ce s u fficie nt to establish probable cause to obtain a search warr ant for appellant’ s apar tment. The ex ecution of t hat s ear ch

war rant yielded further evidenc e that, toge ther with information obtained in the course of the

connec ted police investigation, established probable cause to obtain a sear ch war rant for Warren’ s apar tmen t

. T h ere fore , we conclude that the trial court did not abuse its discretion in denying appellant’ s motions t o suppress. We overrule appellant’ s first point of err or. 4

P uni shme nt Evid ence I n his second point of err or, appellant asser ts that the trial court er re d in admitting evidenc e of his prior conv i ct ions during the punishment phase of trial beca use the evidenc e was insufficient to prove that he wa s the person c onvicted.

Section 3(a) of Article 37.07 of the Texas Code of Criminal Procedur e g overns the admissibili ty o f evidenc e at the punishment phase of a non-ca pital criminal trial and allows the

I n his brief, appellant also argues that the State failed to demonstrate both probable cause 4 and exigent circ umstances to justify the war rantless entry into his apar tment. The trial court made no fac t find in g s o r conclusions conce rning exigent circ umstances. Be cause we conclude that the trial court’s ruling was corr ect under b o t h the consent and protec tive swee p exceptions to the war rant require ment, we do not addre ss exigent circumstance s. See Y oung v. Stat e , 283 S.W

. 3 d 8 5 4 , 8 7 3 (Tex. Crim. App. 2009) (a p p el late court will aff irm trial court’s ruling on motion to suppress if it is rea sonably supported by rec ord and is corr ect under any theory of law applicable to case ); see also Tex. R. App. P . 47.1. 10admission of any evidenc e the trial court “deems relevant to sentenc ing, including but not limit ed

to the prior cr iminal recor d of the de fenda nt, . . . [ and] evidence of an e x trane ous crime or bad ac t that is shown bey ond a reasonable dou b t by evidenc e to have been committ ed by the defendant.” See Tex. Code C ri m . Proc. art. 37.07, § 3(a) (1). We revie w a trial court’s decision to admit punishment evidence for a n abuse of discretion. Davis v. State , 329 S.W .3d 798, 802 (Tex. Crim. App. 2010). “To e stablish that a defe ndant has been convicted of a prior offe nse, the State must prove bey ond a reasonable doubt that (1) a pr ior conviction ex ists, and (2) the defendant is linked
to that conviction.” Flowers v

. State , 220 S.W .3d 919, 921 (Tex. Crim. App. 2007). “No specific document or mode of proof is require d to prove these two elements.” Id. The State may prove both of these elements in a number of way s, including documentar y proof that con t ains sufficie nt information to establish both the exis tence of a prior conviction and the defe ndant’s identity as the person convicted. Id. at 921–22. Any ty pe of evidenc e, documentar y or testimonial, might suffice

. Id. at 922. The fac tfinder looks at the totality of the evidenc e to deter mine whether the State proved the prior c onviction bey ond a re asonable doubt. Id. at 923.

Her e, the State offe red three exhibi ts contain i n g cer tified rec ords from the S u p erior/St ate Court of Doug herty County , Geor g ia. See Tex. R. Evid. 803(22) (judg ment of previous conviction not excluded by hear say rule), 902(1) (p ub l i c documents under seal are self-a uthenticating ). The do cuments in State’s Ex hibit 72 show that “Te rra nce D. For d,” a black male with a date of birth of J une 25, XXXX and social secur ity number ending in 1927, was found

11g uilty of three counts of Terr oristic Threa ts on May 6, 1996. The documents in State’s Ex hibit 73 5 show that “Te rra

nce D. For d,” a black male with a date of birth of J une 25, XXXX and social secur ity number ending in 1927 , wa s fo u n d gu ilty of the offe nse of Sale of Marijuana on May 12, 1998. T h e d o cu m ents in State’s Ex hibit 74 show that “Te rra nce D. For d,” a black male with a date of birth of J une 25, XXXX and social secur ity number ending in 1927, was found g uilty of four offe nses—Ter

ro ri s t i c T h rea

ts and Acts, Simpl e Battery , Obstruction of an Offic er, and I nterfe renc e with a 911 Eme rg ency Call—on September 8, 1999. Another exhibi t, State’s Ex hibit 75, admitted without objection, contains book-in documents maintained by the Bell County jail. The first pag e contains a photog raph of appellant, taken at the time of his book-in for this offe nse, and the d o cuments provide the following information: “Na

me: For d, Terr ance Damien;” “DOB : [XXXX]-06-25;” “Ge nder: M;” “Rac e: B;” “POB : Albany , Geor g ia;” and “Primary SSN: [XXX-XX- 1927].” Charles Cox , custodian of rec ords for the jail, testified that this information was obtained from appellant at the time of his book-in for this offe nse. He further testified that appellant’ s birth date is J une 25, XXXX, his place of birth was Albany , Geor g ia, and his social se curity number is XXX- XX-1927. Thus, State’s Ex hibits 72, 73, and 74, ref lect that a person with the same first name, middle initial, last name, g ender , rac e, date of birth, and social secur i ty number as appellant was convicted in Ge org ia of the of fense s listed. Combined with S tate’s Exhibit 75 and Offic er Cox ’s

6

The exact date of birth, including the y ear , and all digits of the social secur ity number are 5 contained w ithin the ex hibits i n the re cord; howe ver, w e do not list them in our opinion. We also note that Ex hibits 72, 73, and 74 eac h contain a signature of the person convicted. 6 The trial court observe d that the exh i bits contained “Te rra nce For d’s” signature and the State reminded the court that State’s Ex hibit 48, the lease ag ree ment for appellant’ s apar tment, admitted 12testimony , these documents wer e sufficie ntly linked to appellant, who was born in Geor g ia, such that

the trial court could conclude that these exhibi ts contain sufficie nt information to establish both the exis tence of prior c onvictions and appe llant’s identity as the pe rson convicte d. The trial court did not abuse its discretion in admitting this evidenc e. We over rule a ppellant’s sec ond point of err or.

Attor ney’s F ees I n his third point of err or, appellant contests the trial court’s order for the repa y ment of court-a ppointed attorney ’s fee s in the judgme nt of conviction. Wh en t h e t ri al court sentenc ed appellant in open court af ter rece iving the jury ’s puni shment verdic t, she ordered him to pay “any
court appointed attorney ’s fee s if y ou are able to pay those upon y our rele ase.” The written judgme nt of convic tion reflec ts the imposit ion of “$4,500.00 Attorne y Fe es.” A trial court’s authority to order a defe ndant to repa y the cost of court-a

ppointed leg al counsel is expressly con d i t i o n ed on the court deter mining that the defe ndant has the financ ial

resour ces and ability to pay . Tex. Code Crim. Proc. art. 26.05(g ). Th e defe ndant’s financ ial

resour ces and ability to pay are expli cit critica l elements under articl e 2 6

. 0 5 (g) that must be supported by

the re cord e vidence

. Maye r v. State , 309 S.W .3d 552, 556 (Tex. Crim. App. 2010). The rec ord ref

lects that the trial court found appellant to be indige nt prior to trial and appointed counsel t o re p re s en t h im. Once an acc used is found to be indige nt, he is presumed to

rema in so throug h the proce eding s absent proof of a materia l change i n h i s ci rcumstances. Tex. Code Crim. Proc. art. 26.04(p); Maye r , 309 S.W .3d at 557. As the State acknow ledg es, nothing in

during the g uilt-innocence phase, c ontained appe llant’s signa ture. 13the rec ord indicates a chang e in a ppellant’s financ ial circ umstances or demonstrates that appellant has the ability to pay court-a ppointed attorney ’s fee s. Thus, as t h e State conce des, the trial court

err ed in order ing the pay

ment of attorney ’s fee s in its oral pronounce ment o f s entence and in its written judg ment of convic tion. W e sustain appe llant’s third point of error

.

When the evidenc e d o es not support the order to pay attorney ’s fee s, the proper

reme dy is to delete the order

. Maye r , 309 S.W .3d at 557. Acc ording ly , we modify the judgme nt of conviction to delete the order for r epay ment of $4,500.00 attorne y ’s fe es.

CONCLUSION We find no abuse of discretion in the denial of appellant’ s motion to suppress or the admission of evidence of his criminal hi story , but d o fi n d t h at the t rial court err ed in order ing the repa y ment of court-a

ppointed attorney ’s fee s. Acc ording ly , we modify the judgme nt as noted above and, as modified, a ffirm the judg ment of convic tion.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Modified and, a s Modified, Aff irmed Filed: Mar ch 20, 2014 Do Not Publish

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