Affirmed and Opinion filed November 20, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00457-CR

VALDEMAR BAUTISTA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 506th Judicial District Court

Waller County, Texas

Trial Court Cause No. 11-05-13821

OPINION

This case involves a challenge to a conviction for the offense of “continuous 

sexual abuse of a child.” Appellant argues that the conviction is not supported by 

sufficient evidence and asserts several additional errors that he alleges prevented 

him from adequately challenging the complainant’s credibility. In particular, he 

alleges that the trial court erred in failing to grant a continuance after the 

complainant testified that she had received a medical exam and also asserts that the 

State wrongly suppressed evidence of the exam. He also challenges the trial 
court’s denial of a motion for a new trial based on newly-discovered evidence that 

the complainant recanted post-trial. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant first made outcry when she was in the seventh grade by 

revealing incidents of sexual abuse to her school principal. The principal 

encountered the complainant’s younger sister crying in the hallway at school and 

learned that the sister was afraid to go home. The complainant’s sister disclosed 

that appellant Valdemar Bautista, her father, touched her and the complainant 

inappropriately. The sister stated that sometimes while she was asleep with the 

complainant, appellant would enter their room, get into their bed in between them, 

and touch them inappropriately. Upon hearing this information, the principal 

called the complainant out of class and queried her regarding her life at home. The 

complainant disclosed that appellant regularly came into the room she shared with 

her sister at night, laid down with them, and touched them inappropriately. During 

the interview, the girls were extremely distraught and held onto each other crying 

for a long time. As a result of the disclosures, the girls and their siblings were 

taken into custody by state authorities. The complainant was interviewed twice at 

the Child Advocacy Center. In her interviews, the complainant disclosed that 

appellant frequently required her to perform a variety of sexual acts. The 

complainant maintained her account throughout therapy and her interactions with 

the Texas Department of Family and Protective Services. 

Appellant was charged by indictment with the felony offense of “continuous 

sexual abuse of a child,” to which appellant pleaded “not guilty.” At a bench trial, 

the State offered testimony from several witnesses including the complainant, a 

woman who interviewed the complainant at the Child Advocacy Center, and the 

complainant’s school principal, therapist, and caseworker, among others. These 

2
witnesses stated that both the complainant and the complainant’s sister provided

consistent, detailed descriptions of a variety of sexual acts in which they claimed 

the appellant forced them to engage. Appellant presented the testimony of the 

complainant’s younger sister, who testified that she and the complainant fabricated 

the allegations because they were afraid of being disciplined. 

The trial court found appellant guilty as charged and sentenced him to a term 

of forty years’ confinement. Appellant filed a motion for new trial on the asserted 

grounds that favorable evidence was discovered after trial and that the State 

withheld evidence of medical exams. The trial court denied appellant’s motion for 

new trial. Appellant now appeals his conviction, raising five appellate issues in 

which he challenges the legal sufficiency of the evidence and various trial court 

rulings. 

II. ISSUES AND ANALYSIS

A. Sufficiency of the Evidence 

In his first issue, appellant asserts that the evidence is insufficient to support 

his conviction. In evaluating a challenge to the sufficiency of the evidence 

supporting a criminal conviction, we view the evidence in the light most favorable 

to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). 

The issue on appeal is not whether we, as a court, believe the State’s evidence or 

believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 

667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned 

unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson 

v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the 

sole judge of the credibility of the witnesses and of the strength of the evidence.” 

Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact

may choose to believe or disbelieve any portion of the witnesses’ testimony. 

3
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with 

conflicting evidence, we presume the trier of fact resolved conflicts in favor of the 

prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). 

Therefore, if any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 

S.W.2d 607, 614 (Tex. Crim. App. 1997).

A person commits the offense of “continuous sexual abuse of a child,” as 

applicable to the case under review, if (1) during a period that is 30 or more days in 

duration, the person commits two or more acts of sexual abuse; and (2) at the time 

of the commission of each of the acts of sexual abuse, the actor is 17 years of age 

or older and the victim is a child younger than 14 years of age. Tex. Penal Code. 

Ann. § 21.02(b) (West 2014). 1 An “act of sexual abuse” is an act that violates one 

or more specified penal laws, including section 21.11(a)(1), entitled “Indecency 

with a Child,” and section 22.021, entitled “Aggravated Sexual Assault.” A person 

commits the offense of “Indecency with a Child” if the person “engages in sexual 

contact with the child or causes the child to engage in sexual contact.” See Tex. 

Penal Code Ann. § 21.11(a)(1) (West 2014). A person commits the offense of 

“Aggravated Sexual Assault” if the person intentionally or knowingly causes the 

penetration of the sexual organ of a child under the age of fourteen by any means. 

See Tex. Penal Code Ann §§ 22.021 (a)(1)(B)(i), (ii), (iii), (iv), (v), (a)(2)(B) (West 

2014). In this case, the indictment alleged that on more than one occasion 

appellant: 1) intentionally or knowingly engaged in sexual contact with the 

complainant by touching her genitals, 2) caused the complainant to touch 

1 We note that despite the use of the word “continuous” in the statute, only continual 

sexual abuse is required, i.e., two or more acts of sexual abuse during a period that is 30 days or 

more in duration; the statute does not require nonstop, incessant, unbroken, or unceasing sexual 

abuse as use of the term “continuous” would suggest. 

4

 
appellant’s genitals, 3) penetrated the complainant’s mouth with appellant’s sexual 

organ, and 4) caused the penetration of the complainant’s sexual organ with 

appellant’s sexual organ. The indictment alleges that during these acts appellant 

was 17 years of age or older and the complainant was a child younger than 14 

years of age.

At trial, the complainant’s school principal and school vice-principal

testified that they questioned the complainant and her sister separately regarding 

the appellant’s actions. The two girls made similar disclosures. Both sisters 

continued to allege, throughout their interactions with caseworkers and therapists, 

that appellant forced them to perform sexual acts. The complainant testified at trial 

that appellant began touching her breasts when she was around eight or nine, but 

that the touching escalated when she was around eleven, twelve, or thirteen. At 

that point in time, appellant began forcing her to engage in intercourse with him. 

The complainant explained that the first time appellant forced her to engage 

in intercourse she felt pain and found blood on her sheets, which she stated she 

threw away the next morning. The complainant testified that after that incident, 

appellant forced her to engage in intercourse frequently up until she disclosed the 

abuse. The complainant testified that in addition to forcing her to engage in

intercourse appellant would tell her to “scratch him on the sides of his private 

stuff.” When she would do this, appellant’s penis was hard, smelled, and was 

“nasty.” The complainant testified that she felt something wet and sticky. She 

could not identify the substance at the time, but she now knows that it was sperm.

The forensic interviewer from the Child Advocacy Center testified that in 

the first interview the complainant disclosed that appellant had touched the 

complainant inappropriately; later, the complainant disclosed that appellant forced 

her to engage in a variety of sexual acts. The interviewer stated that the 

5
complainant was shy, timid, and nervous in the first interview and more confident 

in the second. At the end of the interview, the complainant asked the interviewer if 

the complainant would be able to have children after these events. The 

complainant’s caseworker for the Texas Department of Family Services testified 

that she was present in family therapy sessions when the complainant and her sister 

disclosed the abuse to the rest of their family. The caseworker testified that 

initially the complainant was fearful and had to be prompted to speak in Spanish 

instead of English so that her mother could understand the disclosures. Both the 

complainant and her sister would make a disclosure and then cry.

The complainant admitted that she later told appellant’s attorney that the 

allegations she had made were untrue. She explained that she recanted because her 

younger sisters were crying and asking for appellant. She stated that additionally, 

she was relying on a statement by appellant’s attorney that appellant would not get 

close to her after getting out of jail. The complainant explained that the 

recantations were not true and that she eventually decided to tell the truth because 

that was the way to protect her sisters. The complainant’s therapist testified that 

the complainant was pressured to recant by her older siblings and members of her 

family’s church. 

The State presented sufficient evidence to support appellant’s conviction. 

See Tex. Code Crim. Proc. Ann. Art. 38.07 (West 2011); Villalon v. State, 791 

S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding a child-complainant’s 

testimony established element of penetration beyond a reasonable doubt). 

Appellant argues that the evidence is insufficient to support his conviction. He 

asserts that the evidence shows the complainant and her sister fabricated 

allegations to avoid corporal punishment for wearing pants to school, an act that is 

prohibited by appellant’s religion. In support of this argument, appellant notes 

6
that:

• There was no physical evidence of abuse.

• Appellant has no prior history of sexual abuse.

• Appellant worked long hours, usually seven days a week.

• No other witness claimed to have witnessed the inappropriate behavior.

• The first outcry came shortly after appellant observed the complainant’s 

sister wearing pants to school.

• The complainant recanted her testimony and stated that she was not 

pressured to recant.

• The complainant had a reputation in the family for “telling untruths.”

• The complainant’s testimony was inconsistent with her sister’s testimony 

with respect to whether appellant slept in their bed, her allegation that 

appellant abused her sister, and her statement that she informed her sister 

about the bloody sheets. The complainant’s mother also testified she did not 

notice a missing sheet.

• The complainant testified that her mother was frequently out of the house at 

parties or in Oklahoma but the complainant’s sister testified that their mother 

did not party and visited Oklahoma only once a year.

• The complainant’s account was inconsistent with respect to whether her 

mother knew about the abuse and her testimony was inconsistent with her 

mother’s testimony regarding the mother’s knowledge.

Appellant’s arguments that he worked long hours, has no prior history of 

sexual abuse, and that no other witnesses claimed to have witnessed the 

inappropriate behavior do not refute the complainant’s testimony. Appellant’s 

argument that there was no physical evidence of the abuse is insufficient to 

overturn his conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. 

App. [Panel Op.] 1978) (holding that victim’s testimony is sufficient to prove 

sexual contact occurred even in absence of physical evidence); Tinker v. State, 148 

S.W.3d 668, 669 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (same). 

The rest of appellant’s arguments amount to an attack on the complainant’s 

7
credibility. The trier of fact is the sole judge of the credibility of the witnesses. 

Fuentes, 991 S.W.2d at 271. We presume that the trial court, as trier of fact, 

credited the outcry statements and discredited the recantations. See Chambers v. 

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (stating that recantation does 

not destroy probative value of outcry statement and that the factfinder is free to 

disbelieve recantation); Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.—

Eastland 2010, no pet.) (holding sufficient evidence supported conviction where 

victim made outcry statement and then recanted at trial). 

We conclude that sufficient evidence supports appellant’s conviction. See

Villalon, 791 S.W.2d at 134. Accordingly, appellant’s first issue is overruled.

B. Denial of Motion for New Trial Based Upon Newly-Discovered 

Evidence

In his second issue, appellant argues that the trial court abused its discretion 

in denying his motion for new trial based upon newly-discovered evidence. In 

particular, appellant states that the complainant issued a post-trial recantation. At 

the hearing on the motion for new trial, the complainant testified that her trial 

testimony was untrue. She stated that she lied during the trial because she was 

afraid that the prosecution would separate her from her family if she admitted that 

her allegations were fabricated.

A ruling on a motion for new trial will not be disturbed absent an abuse-ofdiscretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). Texas 

Code of Criminal Procedure Article 40.001, entitled “New Trial on Material 

Evidence,” provides that “[a] new trial shall be granted an accused where material 

evidence favorable to the accused has been discovered since trial.” Tex. Code 

Crim. Proc. Ann. art. 40.001 (West 2014). Newly-discovered evidence satisfies 

the “materiality” standard in the statute if: 

8
(1) the newly discovered evidence was unknown or unavailable to the 

movant at the time of his trial; (2) the movant’s failure to discover or 

obtain the evidence was not due to lack of diligence; (3) the new 

evidence is admissible and is not merely cumulative, corroborative, 

collateral, or impeaching; and, (4) the new evidence is probably true 

and will bring about a different result on another trial. 

Keeter, 74 S.W.3d at 37. A new trial should be granted where a witness testifies to 

material exculpatory facts against an accused and recants after the verdict, but 

before a motion for new trial has been acted upon, only if the new evidence is

“probably true.” Id. It is within the trial court’s discretion to discern the 

credibility of the witness and whether the new evidence is “probably true.” Id. 

The trial court does not abuse its discretion in denying a motion for a new trial 

based on a recantation so long as the record provides some basis for disbelieving 

the testimony. Id. One basis for disbelieving a recantation is evidence that the 

recanting witness was subject to pressure by family members. Id.

The record reveals several reasons to disbelieve the complainant’s post-trial 

recantation. The complainant had issued a pre-trial recantation, which was the 

subject of a substantial amount of trial testimony. At trial, the forensic interviewer 

testified that recantation is a stage of disclosure, and the Director of the Fort Bend 

Child Advocacy Center testified that sometimes children feel pressured to recant 

because the consequences of having disclosed abuse seem more difficult to endure 

than the abuse. She also testified that siblings can have a huge impact on a childvictim’s response and that sometimes siblings are harsh to the victim in their 

attempt to keep the family together. 

At trial, the complainant’s sister, who previously had disclosed being abused

by appellant, testified that she was afraid to go home on the day she first disclosed 

the abuse to her school principal, but after the principal described the role of

Children’s Protective Services, her “heart broke.” The sister testified that she 

9
thought she was going to a wonderful place, but that she ended up separated from 

her siblings and she never thought any of those consequences would occur as a 

result of her statements. The sister stated that she cried to the complainant and told 

her she wanted to go home because she missed her family. Two other siblings 

testified in support of their father and accused the complainant of lying. The 

complainant testified that she originally recanted in an effort to protect her younger 

sisters, who would cry and ask for their father, but the complainant then explained 

that she decided to testify truthfully at trial because she realized that telling the 

truth was the real way to protect them. The complainant’s therapist testified that 

the complainant also had been pressured to recant by her older siblings and 

members of her father’s church.

The record evidence would enable the trial court to conclude that the 

complainant was subject to pressure by family members, including her siblings. 

This evidence provided the trial court with a sound basis to determine that the posttrial recantation likewise was a result of pressure and that it was not “probably 

true.” Accordingly, the trial court did not abuse its discretion by denying 

appellant’s request for a new trial on the basis of the newly-discovered evidence of 

recantation. See Keeter, 74 S.W.3d at 37. We overrule appellant’s second issue.

C. Denial of Motion for Continuance

In his third issue, appellant asserts that the trial court abused its discretion in 

denying his motion to continue trial based on the complainant’s testimony that she

underwent a forensic medical exam. Specifically, the complainant testified at trial

that while she was in the custody of state authorities she went to a hospital and a 

woman ran tests on her. The complainant did not know the results of the tests. 

We review a trial court’s ruling on a motion for a continuance under an 

abuse-of-discretion standard. See Duhamel v. State, 717 S.W.2d 80, 83 (Tex. 

10
Crim. App. 1986). Under the Texas Code of Criminal Procedure, the trial court is 

permitted to grant a continuance “when it is made to appear to the satisfaction of 

the court that by some unexpected occurrence since the trial began, which no 

reasonable diligence could have anticipated, the applicant is so taken by surprise 

that a fair trial cannot be held.” Tex. Code of Criminal Proc. Ann. art. 29.13 (West 

2014). When reviewing the trial court’s denial of a motion for continuance, we 

examine the circumstances presented to the trial court and determine whether the 

trial court abused its discretion in denying the motion. Rodriguez v. State, 21 

S.W.3d 562, 565 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). 

Appellant asked to subpoena the records of “Texas Department of Family 

and Protective Services, CASA, medical physicians, psychiatrists, counselors,

[and] therapists.” Appellant agreed with the trial court’s recommendation to

remove the request that physicians disclose their records out of the fear that the 

Texas Department of Family and Protective Services would not comply with any 

portion of the request if it determined that providing medical records would violate

the Health Insurance Portability and Accountability Act (HIPAA). In appellant’s 

motion for this discovery, though, he stated that physicians had information 

relevant to the complainant and her siblings. It is apparent from the face of this 

motion that appellant knew medical exams may have been performed.

The record also reveals that appellant’s counsel had access to the 

complainant and that she was cooperative with appellant’s counsel in the months 

leading up to trial. Appellant had ample time to ask the complainant if she had 

undergone any medical exams and to seek the trial court’s assistance in obtaining 

relevant results, but instead, appellant apparently waited until trial to ask the 

complainant that question. See Williams v. State, 768 S.W.2d 337, 341 (Tex. 

App.—Houston [14th Dist.] 1989, pet. ref’d) (holding that trial court did not err in 

11
denying motion for continuance to examine bloody jacket because defendant could 

have examined jacket before trial); Hernandez v. State, 825 S.W.2d 765, 768 (Tex. 

App.—El Paso 1992, no pet.) (holding that reasonable diligence would have 

eliminated any surprise in trial testimony). The evidence in this record supports 

the trial court’s determination that appellant was not surprised by the testimony. 

The trial court did not abuse its discretion in denying appellant’s motion for a 

continuance after the start of trial on the basis that appellant was not surprised by 

the complainant’s testimony about the medical exams. See Tex. Code Criminal 

Proc. art. 29.13 (West 2014); Williams, 768 S.W.2d at 341. Accordingly, we 

overrule appellant’s third issue.

D. State’s Alleged Wrongful Withholding of Evidence

In appellant’s fourth issue, he asserts that he was denied due process of law 

because the State withheld evidence tending to establish his innocence. In 

particular, appellant alleges that the State possessed evidence of a medical exam 

that he speculated showed the complainant’s hymen had not been ruptured. 

Appellant argues that possessing and failing to disclose this evidence violates the 

requirements of United States v. Bagley, 473 U.S. 667, 669, 105 S.Ct. 3375, 3376 –

77 (1985) and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963).

The State violates an accused’s right to due process of law if it suppresses 

favorable evidence that is material to either guilt or punishment. Brady, 373 U.S. 

at 87, 83 S.Ct. 1194. To establish reversible error under Brady and Bagley, a

defendant must show that: (1) the State failed to disclose evidence, regardless of 

the prosecutor’s good or bad faith; (2) the withheld evidence is favorable to him; 

and (3) the evidence is material, that is, there is a reasonable probability that had 

the evidence been disclosed, the outcome of the trial would have been different. 

Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012); Hampton v. State, 

12
86 S.W.3d 603, 612 (Tex. Crim. App. 2002). The State has a constitutional duty to 

disclose to a defendant material, exculpatory evidence in its possession. Pena v. 

State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011). This duty also requires the 

State to learn of Brady evidence known to others acting on the State’s behalf in a 

particular case. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). But,

Brady and its progeny do not require prosecuting authorities to disclose 

exculpatory information to defendants that the State does not have in its possession 

and that is not known to exist. Id. at 407. The State does not have such a duty to 

disclose evidence if the defendant actually was aware of the evidence or could 

have accessed it from other sources. Pena, 353 S.W.3d at 810. 

The District Attorney’s Office in Waller County maintained an open-file 

policy. The prosecuting attorneys informed defense counsel of this policy during 

pre-trial status conferences and defense counsel did not advise the trial court that 

he had any difficulty accessing the State’s files. At the motion for new trial, 

appellant presented an unsworn, unauthenticated document purporting to be a 

paragraph copied from an e-mail from an individual associated with the Texas 

Department of Family and Protective Services. The purported e-mail explains that 

the complainant and two of her sisters had forensic interviews and forensic medical 

interviews, but “it is suspected” that the complainant and her sisters never had 

“well-woman” appointments. The e-mail states, “[o]utcomes of appointments 

obtained by Waller County Sheriff’s Department — Sharlonda Rutledge and fwd 

to Laurie Sellers.” 

At trial, Officer Sharlonda Rutledge testified that she was present for 

forensic interviews and requested medical exams. She also testified that she did 

not think medical exams were conducted, although she was not sure if they were

done. She testified that she never received any medical records and that she did 

13
not have any notice that medical exams were completed. She stated that to obtain 

medical records she either had to call the clinic or get the records via a grand jury 

subpoena, depending on the facility. Officer Rutledge testified that records were 

not subpoenaed, that she attended two sets of forensic interviews, wrote a report, 

and presented the report to the prosecutor.

Presuming for the sake of argument that the e-mail the e-mail presented by 

appellant in his motion for new trial was authenticated, it does not prove that the 

District Attorney’s office had the results of any medical exam. First, the e-mail 

states that the children had “forensic medical interviews.” It is unclear if a medical 

interview is an exam. Then, the e-mail states that it is suspected the children never 

had “well-woman appointments.” Finally, the e-mail conveys merely that 

“outcomes of appointments” were obtained by the Waller County Sheriff’s 

Department. The e-mail is ambiguous both with respect to whether a physical

exam occurred and as to whether results from any medical exam were sent to the 

State. It is unclear what the State received, if anything, in terms of “outcomes.” 

The e-mail is consistent with the State possessing the information that the State 

claimed to possess—results from forensic interviews with the children. The State 

maintained an open file policy and granted appellant access to its records. 

Appellant has not presented evidence that the State had access to additional 

medical records and withheld those records from him. 

Even if appellant had established that the State had access to medical 

records, appellant has not proven that those records contained any information 

favorable to him. Appellant speculates that the records may have shown that the 

complainant’s hymen was intact, but offers no proof that the records contained this 

information. Even if the records did contain this information, however, appellant 

bears the burden of showing that, in light of all the evidence, it is reasonably 

14
probable that the outcome of the trial would have been different had the prosecutor 

made a timely disclosure of this evidence. See Hampton, 86 S.W.3d at 612. The 

mere possibility that an item of undisclosed information might have helped the 

defense or might have affected the outcome of the trial does not establish 

“materiality” in the constitutional sense. Id. Thus, appellant has not proven that 

the complainant could not have suffered sexual abuse and maintained an intact 

hymen. Appellant has not established that the evidence withheld was both 

favorable and material. See id. 

After examining the trial record, we conclude appellant has not shown that 

he was denied due process of law because the State withheld material, exculpatory 

evidence. Therefore, we overrule appellant’s fourth issue. 

E. Denial of Motion for New Trial Based on Alleged Brady and Bagley

Violations.

In his fifth issue, appellant asserts that the trial court erred in denying his 

motion for new trial on the basis of the alleged Brady and Bagley violations. As 

discussed above, appellant has not shown the State withheld material, exculpatory 

evidence. Accordingly, the trial court did not abuse its discretion in denying 

appellant’s motion for new trial. See Harm, 183 S.W.3d at 409. We overrule 

appellant’s fifth issue.

15
III. CONCLUSION

Appellant’s conviction is supported by sufficient evidence. The trial court 

did not abuse its discretion in denying appellant’s motion for new trial based on the 

complainant’s post-trial recantation where the record provided the trial court a 

basis for believing that the recantation was not “probably true” evidence. Nor did 

the trial court abuse its discretion in denying appellant’s motion to continue where 

the evidence did not create a surprise. Finally, the trial court did not abuse its 

discretion in denying appellant’s motion for new trial on the basis of his Brady and 

Bagley claims. Appellant did not prove that the State withheld exculpatory, 

material evidence. 

The judgment of the trial court is affirmed.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.

Publish — TEX. R. APP. P. 47.2(b).

16