IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-1060

Filed: 1 September 2020

Forsyth County, Nos. 19 CRS 1781; 1789

STATE OF NORTH CAROLINA

v.

BILLY RUSSELL LAND

Appeal by Defendant from Orders entered 29 July 2019 by Judge Angela 

Puckett in Forsyth County Superior Court. Heard in the Court of Appeals 9 June 

2020.

Attorney General Joshua H. Stein, by Assistant Attorney General Wendy J. 

Lindberg, for the State.

Dylan J.C. Buffum for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

Billy Russell Land (Defendant) appeals from two Orders entered on 29 July 

2019, finding him in criminal contempt. The Record reflects the following:

Following a trial in Forsyth County District Court, Defendant was found guilty 

of: (I) operating a motor vehicle on a street or highway while displaying an expired 

registration plate on the vehicle knowing the same to be expired; (II) operating a 

motor vehicle on a street or highway without having a current electronic inspection 

authorization for the vehicle, such vehicle requiring inspection in North Carolina; 
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and (III) operating a motor vehicle on a street or highway with no liability insurance. 

Defendant appealed these convictions to Superior Court.

Defendant appeared for a calendar call in Forsyth County Superior Court on 

29 July 2019. Defendant, found indigent by the trial court, waived his right to counsel 

for the appeal of his traffic violations and appeared pro se. After a contentious 

calendar call—during which the trial court determined Defendant was continuously 

interrupting the court and Defendant was warned to stop doing so or face direct 

criminal contempt proceedings—and as Defendant was leaving the courtroom, he 

again interrupted the trial court. 

At this point, the trial court ordered Defendant be brought back before it, 

saying, “Sir, I’ve warned you and warned you. And I specifically just said do not 

interrupt my court again as I’m going on, and you made a comment as you went 

walking out the door very loudly.” The trial court informed Defendant it was 

beginning a summary direct criminal contempt proceeding against him. The trial 

court provided Defendant the opportunity to respond to the allegations of criminal 

contempt, asking Defendant if there was anything he wished to say. Defendant 

argued, “I’m under the Constitution. This is an expired plate matter. Under the 

Constitution, it says it carries no jail time.” The trial court explained Defendant was 

not being tried for the traffic citations at the moment but rather for direct criminal 

contempt. Defendant continued speaking over the trial court as it tried to ask if there 
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was anything else he wished to say in his defense. After Defendant concluded, the 

trial court found Defendant in direct criminal contempt, sentencing him to twentyfour hours in the Forsyth County jail. Defendant gave notice of appeal in open court. 

Defendant then asked, “How you gonna to [sic] place me under arrest, man?

Y’all doing some illegal shit, man. I’m under the Constitution. The Haile -- the Haile 

is my law.” The trial court warned Defendant if he interrupted the trial court again, 

it would hold him in contempt for a second time. Ignoring the trial court, Defendant 

went on, “I’m a Hebrew Israelite from the Tribe of Judah. I’m not a US citizen. Y’all 

not got a right to do this.” As the bailiff tried to escort Defendant from the courtroom, 

he continued, “Y’all doing some illegal shit in here.” At this point, the trial court 

called Defendant before it once more to commence a second criminal contempt 

proceeding. As the trial court moved through the proceeding, Defendant continued 

interrupting and speaking over the trial court. He again expressed wanting to file a 

notice of appeal, saying, “My lawyer’s Yahweh Yahweh Yahweh[.]” To the trial court, 

Defendant said:

I don’t know who you think you are, ma’am, but you supposed 

to follow the Constitution. Under Bryant [sic] versus United 

States, it says that the Court must be watchful for the 

constitutional rights of the people and the citizen. Now, you’re 

not doing that ma’am -- you’re up here being arrogant -- because 

I had a question to ask you about whether my court date was 

going to be today.
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Defendant continued speaking as the trial court concluded the proceeding and again 

found Defendant in contempt of court. This time, Defendant was sentenced to thirty 

days in the Forsyth County jail. As the bailiff took him away, Defendant repeatedly 

gave notice of appeal in open court. 

On 29 June 2019, the trial court entered two Orders finding Defendant in 

criminal contempt. In the first Order (19 CRS 1781 Order), the trial court sentenced 

Defendant to thirty days’ imprisonment. In the second Order (19 CRS 1789 Order), 

the trial court also sentenced Defendant to thirty days’ imprisonment, which was to 

run consecutively to Defendant’s sentence in the 19 CRS 1781 Order. 

Issues

On appeal, Defendant does not challenge the underlying bases of the Orders 

finding him in criminal contempt; rather, he focuses his arguments on whether he 

was deprived of the right to counsel in those proceedings and on errors in the entry 

of the Orders themselves. Thus, the dispositive issues are whether (I) the right to 

counsel granted under N.C. Gen. Stat. § 7A-451(a)(1) applies in a summary direct 

criminal contempt proceeding and (II) the trial court erred or committed clerical 

errors in entering its sentences in both the 19 CRS 1781 and 19 CRS 1789 Orders.

Analysis

I. Statutory Right to Counsel
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Defendant first argues the trial court deprived him of his statutory right to 

counsel. “[A]lleged statutory errors are questions of law and as such, are reviewed de 

novo.” State v. Johnson, 253 N.C. App. 337, 345, 801 S.E.2d 123, 128 (2017) (citation 

and quotation marks omitted). “Under a de novo review, the court considers the 

matter anew and freely substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and 

quotation marks omitted).

The trial court held Defendant in direct criminal contempt. Pursuant to 

Section 5A-13(a), direct criminal contempt occurs when the act: 

(1) Is committed within the sight or hearing of a presiding judicial

official; and

(2) Is committed in, or in immediate proximity to, the room where 

proceedings are being held before the court; and

(3) Is likely to interrupt or interfere with matters then before the 

court.

N.C. Gen. Stat. § 5A-13(a)(1)-(3) (2019). In addition, “[t]he presiding judicial official 

may punish summarily for direct criminal contempt according to the requirements of 

[N.C. Gen. Stat. § 5A-14.]” Id. § 5A-13(a). The requirements of N.C. Gen. Stat. § 5A14 for imposing contempt in a summary proceeding are:

(a) The presiding judicial official may summarily impose 

measures in response to direct criminal contempt when necessary 

to restore order or maintain the dignity and authority of the court 

and when the measures are imposed substantially 

contemporaneously with the contempt.
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(b) Before imposing measures under this section, the judicial 

official must give the person charged with contempt summary 

notice of the charges and a summary opportunity to respond and 

must find facts supporting the summary imposition of measures 

in response to contempt. The facts must be established beyond a 

reasonable doubt.

Id. § 5A-14(a)-(b) (2019).

Defendant contends he was entitled to counsel pursuant to N.C. Gen. Stat. § 

7A-451(a)(1), which provides: “An indigent person is entitled to the services of counsel 

in . . . (1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), 

or more, is likely to be adjudged.” Id. § 7A-451(a)(1) (2019). The issue of whether 

Section 7A-451(a)(1)’s right to counsel applies in a summary direct criminal contempt 

proceeding is a question of first impression for our courts. In answering this question, 

we do, however, begin to find guidance for our analysis in our Supreme Court’s 

decision in Jolly v. Wright. See 300 N.C. 83, 265 S.E.2d 135 (1980), overruled on other 

grounds by McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993).

In Jolly, the sole question before the Court was “whether an indigent defendant 

has a statutory or constitutional right to be represented by appointed counsel in civil

contempt proceedings[.]” Id. at 85, 265 S.E.2d at 138 (emphasis added). The 

defendant in Jolly contended Section 7A-451(a)(1), the subsection at issue in the 

present case, granted him a right to counsel in civil contempt proceedings because in 

such a proceeding, defendant argued, he was subject to imprisonment. Id. 
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Accordingly, our Supreme Court, although not discussing direct criminal contempt,

analyzed Section 7A-451(a)(1) in answering the question before it. 

The Court first noted, “[t]he intent of the Legislature controls the 

interpretation of a statute.” Id. at 86, 265 S.E.2d at 139 (citation omitted). The Jolly

Court then described its holding in State v. Morris, which was decided in the wake of 

Gideon v. Wainwright,

1—“the Sixth Amendment right to appointed counsel was 

applicable to all felony and misdemeanor cases where the authorized punishment 

exceeded six months in prison and a $500 fine.” Jolly, 300 N.C. at 87, 265 S.E.2d at 

139 (citing State v. Morris, 275 N.C. 50, 59, 165 S.E.2d 245, 251 (1969)). Morris’s 

holding was codified by our General Assembly in the original version of Section 7A451(a)(1). Id. 

In Argersinger v. Hamlin, however, the Supreme Court of the United States 

expanded on Gideon, holding the Sixth Amendment required: “absent a knowing and 

intelligent waiver, no person may be imprisoned for any offense, whether classified as 

petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 

U.S. 25, 37, 32 L. Ed. 2d 530, 538 (1972) (emphasis added) (footnote omitted). As 

recognized by the Jolly Court, our General Assembly amended Section 7A-451(a)(1) 

into its current form in a direct response to Argersinger. Jolly, 300 N.C. at 87, 265 

S.E.2d at 139 (citation omitted).

 

1 372 U.S. 335, 9 L. Ed. 2d 799 (1963).
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The Jolly Court stated: “It is clear, then, that the purpose of [Section] 7A451(a)(1), as presently written, is to state the scope of entitlement to court appointed 

counsel in Sixth Amendment cases in light of current constitutional doctrine.” Id. at 

87, 265 S.E.2d at 140 (footnote omitted). “Use of the phrase ‘[a]ny case’ [in Section 

7A-451(a)(1)] is responsive to the precise holding of Argersinger, which states that the 

Sixth Amendment precludes imprisonment of a person for ‘any offense,’ however 

classified, unless he was represented by counsel at his trial. The words ‘[a]ny case’

in [Section] 7A-451(a)(1) must therefore be construed as any criminal case to which 

Sixth Amendment protections apply.” Id. at 87-88, 265 S.E.2d at 140 (alterations in 

original) (emphasis added).

The Court in Jolly also pointed out beyond Subsection (a)(1), Section 7A-451

sets out a number of specific situations in civil cases in which an indigent party has 

a right to counsel and civil contempt is not one such situation. Id. at 90, 265 S.E.2d 

at 141. In concluding its statutory analysis, the Jolly Court determined, “[a] joint 

review of legislative history and case law developments in the area of the Sixth 

Amendment right to appointed counsel leaves no doubt that the purpose of [Section 

7A-451(a)(1)] is to state the scope of an indigent’s entitlement to court appointed 

counsel in criminal cases subject to Sixth Amendment limitations.” Id. at 86-87, 265 

S.E.2d at 139 (emphasis added).
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The Jolly Court continued: “Given the civil nature of civil contempt, it follows 

that the Sixth Amendment right to counsel as set forth in Argersinger is inapplicable 

to civil contempt because that right is confined to criminal proceedings. Accordingly, 

if there is a right to counsel in a civil contempt action, its source must be found in the 

Due Process Clause of the Fourteenth Amendment[.]” Id. at 92, 265 S.E.2d at 142 

(footnote and citations omitted). On the specific question before it, the Court in Jolly

ultimately held, “due process requires appointment of counsel for indigents in 

nonsupport civil contempt proceedings only in those cases where assistance of counsel 

is necessary for an adequate presentation of the merits, or to otherwise ensure 

fundamental fairness.” Id. at 93, 265 S.E.2d at 143.

Applying Jolly to the case at hand starts with a fundamental premise: 

“criminal contempts are crimes, and accordingly, the accused is entitled to the 

benefits of all constitutional safeguards.” O’Briant v. O’Briant, 313 N.C. 432, 435, 

329 S.E.2d 370, 373 (1985) (citation omitted). However, our courts and the United 

States Supreme Court have consistently held the Sixth Amendment’s right to counsel 

does not apply in summary direct criminal contempt proceedings. In In re Williams, 

the defendant was summarily punished for direct criminal contempt and sentenced 

to ten days in jail. 269 N.C. 68, 76, 152 S.E.2d 317, 323 (1967). On appeal, the 

defendant argued he was erroneously denied representation by counsel; however, our 
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Supreme Court held the trial court was under no obligation to appoint counsel for the 

defendant. Id. Specifically, the Court said:

We find no merit in the contention that the sentence was 

originally imposed when the contemner was not represented by 

counsel, or in the contention that the court was under a duty to 

appoint counsel for him. Summary punishment for direct 

contempt committed in the presence of the court does not 

contemplate a trial at which the person charged with contempt is 

represented by counsel. . . . There is no basis for the contention 

that to carry out the sentence would deprive him of his liberty 

without due process of law on the ground that he was denied a 

hearing or denied representation by counsel of his choice.

Id. at 76, 152 S.E.2d at 323-24. 

In In re Oliver, the Supreme Court of the United States ruled due process of 

law requires one charged with criminal contempt “have the right to be represented 

by counsel[.]” 333 U.S. 257, 275, 92 L. Ed. 682, 695 (1948). However, the Court 

acknowledged there was a narrowly limited exception allowing trial courts to forego 

constitutional due process requirements, defined as:

[C]harges of misconduct, in open court, in the presence of the 

judge, which disturbs the court’s business, where all of the 

essential elements of the misconduct are under the eye of the 

court, are actually observed by the court, and where immediate 

punishment is essential to prevent demoralization of the court’s 

authority before the public.

Id. (quotation marks omitted). In re Oliver therefore stands for the proposition

defendants summarily punished for direct criminal contempt have no constitutional 

right to counsel. See id.; see also Levine v. United States, 362 U.S. 610, 616, 4 L. Ed. 
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2d 989, 995 (1960) (stating summary direct “[c]riminal contempt proceedings are not 

within ‘all criminal prosecutions’ to which [the Sixth] Amendment applies” (citations 

omitted)). 

Accordingly, because Jolly recognized Section 7A-451(a)(1)’s “any case” 

language is construed as any criminal case to which Sixth Amendment protections 

apply and because our courts and the United States Supreme Court have consistently 

recognized no right to counsel under the Sixth Amendment exists in summary direct 

criminal contempt proceedings, application of Jolly here leads to the conclusion

Section 7A-451(a)(1) does not apply to summary proceedings for direct criminal 

contempt. 

Defendant astutely observes both (1) In re Williams pre-dated Section 7A451(a)(1) by two years—thus, obviously not addressing a statutory right to counsel 

discussed in Jolly—and (2) Jolly was subsequently overruled by our Supreme Court 

in McBride. In McBride, our Supreme Court determined its prior analysis in Jolly

was misplaced as it related to whether due process required appointment of counsel 

in civil contempt. Pointing to the United States Supreme Court’s decision in Lassiter 

v. Department of Social Services, the McBride Court explained: 

[I]n determining whether due process requires the appointment 

of counsel for an indigent litigant in a particular proceeding, a 

court must first focus on the potential curtailment of the 

indigent’s personal liberty rather than on the “civil” or “criminal” 

label placed on the proceeding. Where due process is concerned, 
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“it is the defendant’s interest in personal freedom . . . which 

triggers the right to appointed counsel.” 

McBride, 334 N.C. at 126, 431 S.E.2d at 16 (alteration in original) (quoting Lassiter

v. Department of Social Services, 452 U.S. 18, 25, 68 L. Ed. 2d 640, 648 (1981)). The

McBride Court, in overruling Jolly’s specific holding, concluded: “In light of the 

Supreme Court’s opinion in Lassiter, we now hold that principles of due process 

embodied in the Fourteenth Amendment require that, absent the appointment of 

counsel, indigent civil contemnors may not be incarcerated for failure to pay child 

support arrearages.” Id. at 131, 431 S.E.2d at 19.

Notwithstanding the analysis utilized by McBride and Lassiter, these 

principles have not been extended to summary direct criminal contempt proceedings 

in the Sixth Amendment context. Indeed, to the contrary, the United States Supreme 

Court has subsequently held: “the Due Process Clause does not automatically require 

the provision of counsel at civil contempt proceedings to an indigent individual who 

is subject to a child support order, even if that individual faces incarceration (for up 

to a year).” Turner v. Rogers, 564 U.S. 431, 448, 180 L. Ed. 2d 452, 466 (2011). In 

fact, in its discussion, the Turner Court itself recognized the existing exception to the 

right to counsel in summary direct criminal contempt proceedings: “This Court has 

long held that the Sixth Amendment grants an indigent defendant the right to stateappointed counsel in a criminal case. And we have held that this same rule applies 
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to criminal contempt proceedings (other than summary proceedings).” Id. at 441, 180 

L. Ed. 2d 461-62 (emphasis added) (emphasis and citations omitted).

Thus, in light of the existing precedent from both the United States and North 

Carolina Supreme Courts establishing there is no Sixth Amendment right to counsel 

in summary proceedings for direct criminal contempt and our Supreme Court’s 

discussion in Jolly establishing the right to counsel under Section 7A-451(a)(1) 

extends only as far as the Sixth Amendment right to counsel, we conclude, in the case 

sub judice, Defendant had no statutory right to counsel under Section 7A-451(a)(1). 

We find further support for our conclusion from the contemporaneous nature 

of summary proceedings for direct criminal contempt. As the United States Supreme 

Court recognized in Cooke v. United States:

To preserve order in the court room for the proper conduct of 

business, the court must act instantly to suppress disturbance or 

violence or physical obstruction or disrespect to the court when 

occurring in open court. There is no need of evidence or assistance 

of counsel before punishment, because the court has seen the 

offense. Such summary vindication of the court’s dignity and 

authority is necessary.

267 U.S. 517, 534, 69 L. Ed. 767, 773 (1925) (emphasis added). Further, “[w]here the 

contempt is committed directly under the eye or within the view of the court, it may 

proceed upon its own knowledge of the facts and punish the offender, without further 

proof, and without issue or trial in any form[.]” Id. at 535, 69 L. Ed. at 773 (citations

and quotation marks omitted); see also State v. Yancy, 4 N.C. 133, 133 (1814) (“The 
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punishment, in [summary direct criminal contempt] cases, must be immediate, or it 

would be ineffectual, as it is designed to suppress an outrage which impedes the 

business of the court.”). 

Here, the trial court found, based on its direct observation, Defendant was 

continuously interrupting the trial court, causing a disturbance to the trial court’s 

ability to properly conduct business. The trial court immediately acted in summary 

fashion to maintain authority over its courtroom. See Cooke, 267 U.S. at 534, 69 L. 

Ed. at 773 (“To preserve order in the court room for the proper conduct of business, 

the court must act instantly to suppress disturbance or violence or physical 

obstruction or disrespect to the court when occurring in open court.”). Since the trial 

court saw the contemptuous conduct first-hand, there were no questions of fact to be 

decided or evidence to be presented, where assistance of counsel could be especially 

useful. See id. (“There is no need of evidence or assistance of counsel before 

punishment, because the court has seen the offense.”). As such, the trial court was 

free to conduct summary proceedings and dictate punishment immediately based 

upon its own knowledge of the events. See id. at 535, 69 L. Ed. at 773 (citations 

omitted). Therefore, the trial court did not err in summarily punishing Defendant for 

direct criminal contempt without affording Defendant counsel because Section 7A451(a)(1)’s right to counsel does not apply in summary direct criminal contempt 

proceedings. 
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In reaching this conclusion—and without questioning the propriety of the use 

of summary proceedings for direct criminal contempt in this case—we do, however, 

echo the Supreme Court of Florida, which in reaching a similar conclusion observed:

That said, the very absence of the usual constitutional 

protections for an individual charged with direct criminal 

contempt and the extraordinary power to summarily punish an 

individual found in direct criminal contempt to incarceration for 

a period of up to six months without an attorney highlights what 

has been emphasized in our jurisprudence. Namely, courts must 

exercise restraint in using this power, especially where 

incarceration is being considered or imposed. The purpose of 

permitting a court to act immediately in cases of direct criminal 

contempt is that the misconduct of an individual in front of the 

court could interfere with the court’s inherent authority to carry 

out its essential responsibilities.

Plank v. State, 190 So. 3d 594, 604-05 (Fla. 2016).

II. Sentencing Errors

Defendant next argues, and the State concedes, the trial court committed 

clerical errors in both the 19 CRS 1781 and 19 CRS 1789 Orders. See State v. Taylor, 

156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (defining a clerical error as “an 

error resulting from a minor mistake or inadvertence, esp. in writing or copying 

something on the record, and not from judicial reasoning or determination” (citations

and quotation marks omitted)). “When, on appeal, a clerical error is discovered in the 

trial court’s judgment or order, it is appropriate to remand the case to the trial court 

for correction because of the importance that the record speak the truth.” State v. 
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Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citation and quotation 

marks omitted).

Here, when announcing its ruling in 19 CRS 1781, the trial court sentenced 

Defendant to twenty-four hours in jail. However, the trial court’s 19 CRS 1781 Order 

provided a thirty-day sentence of imprisonment. Thus, the trial court’s sentence in 

the 19 CRS 1781 Order reflects a clerical error. See State v. Lawing, 12 N.C. App. 21, 

23, 182 S.E.2d 10, 11-12 (1971) (holding a clerical error exists when a judgment does 

not reflect what was announced in open court). Accordingly, we remand for correction 

of the clerical error found in the 19 CRS 1781 Order. See Smith, 188 N.C. App. at 

845, 656 S.E.2d at 696 (citation omitted).

As for the 19 CRS 1789 Order, Defendant first argues the trial court committed 

a clerical error by imposing the thirty-day sentence to run consecutively with the 

sentence in 19 CRS 1781 where the trial court in orally announcing its ruling did not 

specify whether the sentence should run concurrently or consecutively. See N.C. Gen. 

Stat. § 15A-1340.15(a) (2019) (“Unless otherwise specified by the court, all sentences 

of imprisonment run concurrently with any other sentences of imprisonment.”). In 

the alternative, Defendant argues the trial court’s imposition of a consecutive 

sentence in 19 CRS 1789 constituted a substantive change to his sentence made 

outside of his presence, thereby violating his right to be present during sentencing. 

See State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (citations 
STATE V. LAND

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omitted). We agree with Defendant’s second argument and believe Crumbley controls 

our analysis. 

In Crumbley, the defendant was convicted of multiple offenses, and the trial 

court orally rendered sentences for each conviction. Id. at 61, 519 S.E.2d at 96. These 

sentences were rendered in the defendant’s presence in open court. Id. The trial 

court later entered a written and signed judgment imposing the same sentences as 

previously rendered but further stating the sentences would run consecutively, which 

had not been indicated in the previously orally rendered sentences. Id. On appeal, 

this Court vacated the sentence and remanded the matter for entry of a new 

sentencing judgment because the defendant was not present at the time the written 

judgment was entered and “[t]his substantive change in the sentence could only be 

made in the [d]efendant’s presence, where he and/or his attorney would have an 

opportunity to be heard.” Id. at 66-67, 519 S.E.2d at 99; see also State v. Pope, 257 

N.C. 326, 330, 126 S.E.2d 126, 129 (1962) (“The right to be present at the time 

sentence or judgment is pronounced is a common law right, separate and apart from 

the constitutional or statutory right to be present at the trial.” (citation omitted)). 

Likewise, in the case sub judice, the 19 CRS 1789 Order reflected a substantive

change from the sentence orally rendered by the trial court in Defendant’s presence. 

This is so because where the trial court does not announce a sentence is to run 

consecutively with another sentence, a defendant’s sentences are to run concurrently. 
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See N.C. Gen. Stat. § 15A-1340.15(a). “Because there is no indication in this record 

that Defendant was present at the time the written [19 CRS 1789 Order] was entered, 

the sentence must be vacated and this matter remanded for the entry of a new 

sentencing [order].” Crumbley, 135 N.C. App. at 66, 519 S.E.2d at 99.

Conclusion

Accordingly, for the foregoing reasons, we hold Defendant was not entitled to 

counsel under N.C. Gen. Stat. § 7A-451(a)(1) where the trial court proceeded to

summarily punish Defendant for direct criminal contempt. We, however, remand the 

19 CRS 1781 Order for correction of the clerical error contained in that Order, and 

we vacate the 19 CRS 1789 Order and remand for the entry of a new sentencing order.

19 CRS 1781 IS REMANDED FOR CORRECTION OF CLERICAL ERROR.

19 CRS 1789 IS VACATED AND REMANDED.

Judges BRYANT and INMAN concur.