Opinion issued November 17, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00013-CR

———————————

EX PARTE YROOJ SHAMIM, Appellant

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Case No. 1822364-B

MEMORANDUM OPINION

Yrooj Shamim appeals the trial court’s denial of his application for writ of 

habeas corpus. In two issues, Shamim argues that the trial court abused its 
2

discretion in denying his application because (1) his trial counsel had an actual 

conflict of interest and (2) new evidence exonerates him.1 We affirm.

Background

Shamim’s Conviction

Shamim was charged with the misdemeanor offense of assault of a family 

member, his wife. Shamim’s father was also charged. Trial counsel represented 

both Shamim and his father, but the two men were not tried together. At Shamim’s 

trial, the State offered five witnesses: three Houston Police Department (HPD)

officers, the complainant, and a social worker from the Harris County District 

Attorney’s Office. 

The complainant testified through an interpreter that she is from Pakistan 

and came to America in 2001 after her arranged marriage to Shamim. She and 

Shamim have two sons. She testified that in April 2012, while she was pregnant 

with a third child, Shamim assaulted her. After sleeping on the couch, she woke 

up to prepare the children for school. When she returned home, she made

breakfast for Shamim. Shamim was angry because she had called the police the 

day before about previous alleged abuse from her husband and in-laws. 

 

1

In a third issue, Shamim claimed the trial court abused its discretion in failing to 

issue findings of fact and conclusions of law. Because we ordered these filed and 

the trial court produced them, this issue is moot.
3

According to the complainant, Shamim pulled her by her hair and told her to 

get out of the house. He then left for work, but he returned at lunch still angry. 

Shamim grabbed her arm, pushed her out of her bedroom, and tried to drag her out 

of the house, saying he would send her to a mental asylum. Her in-laws were 

cursing her, and her father-in-law grabbed her head and pushed it against a wall. 

She locked herself in a bathroom and called 911. Although she called the police

for help, the complainant testified that she was afraid to leave the house because 

the family had threatened to send her children to Pakistan. Most of her injuries 

depicted in photographs occurred on the day of the assault, but some were caused 

by the abuse that had occurred the day before. 

The first officer on the scene, Officer P. Robles, testified that when he 

arrived at the home on the morning of April 16, 2012, an older man and young 

woman answered the door and claimed that another woman in the house was crazy 

and causing trouble. Officer Robles spoke to the complainant, who said that 

Shamim and her father-in-law had hurt her, called her names, pulled her hair, 

pushed her against a wall, and thrown her to the floor. 

HPD Sergeant T. Anderson testified that the complainant initially would not 

come out of the bathroom. His impression was that the complainant needed help 

and had been assaulted. He saw bruises on the complainant’s eye and a large 
4

bruise and a golf-ball size knot on her forehead. The complainant asked for a 

female officer to view her injuries. 

Officer M. Smith took photos of the complainant’s injuries. She testified 

that the complainant wore a garment that covered her entire body and, before 

asking her to remove the garment to take the photographs, she could only see her 

hands, feet, and face. Five photos admitted into evidence depicted her injuries, 

including bruises with finger marks on her upper arm and bruises on her eye, 

cheekbone, forehead, and leg. 

K. Hutchinson, a social worker for the Harris County District Attorney’s 

Office, testified that the complainant displayed the characteristics of a battered 

woman. Hutchinson concluded that the complainant had been abused. 

The defense called three witnesses: Shamim, his sister, and a friend. 

Shamim’s sister, Uzma, testified that she had never had any disagreements with the 

complainant and that her parents had been upstairs during the entire episode and 

had not touched the complainant. Uzma never saw Shamim assault the 

complainant, and she saw no visible injuries on the complainant. Uzma believed

any injuries were self-inflicted. 

Shamim’s co-worker, Bakht Khattak, who had known Shamim for more 

than 10 years, testified that he was with Shamim most of that afternoon traveling to 
5

Baytown to fix computers. Khattak testified that Shamim acted normally all 

afternoon.

Shamim testified in his own defense, disputing that any assault occurred. He 

speculated that his wife slept on the couch because she must have been mad about 

something. He claimed that his wife developed anger issues after her parents died

and that she must have called the police because she was angry about something. 

On the day in question, he woke up and “had a good chat” with his wife, and she 

cooked his breakfast. He asked her to give him the telephone number for the 

police officer she had called the night before, but she refused. When he came 

home for lunch, his parents were upstairs and remained there. He was surprised 

when the police called him later that day, and he maintained that he did not cause 

any of the injuries shown in the photographs. 

On January 25, 2013, a jury found Shamim guilty of assault, and the trial 

court assessed punishment at one year’s confinement in the Harris County Jail, 

probated for two years. Shamim filed a motion for new trial, claiming his trial 

counsel was ineffective because he failed to investigate, keep Shamim reasonably 

informed, and call a material witness at trial. During the hearing on the motion for 

new trial, Shamim’s appellate counsel questioned his trial counsel extensively 

about the suggested conflict of representing both Shamim and his father, the extent 

of his pretrial investigation, and his failure to call as a witness Shamim’s friend, 
6

Sarwar Syed, who was interviewed on the scheduled trial date. Shamim’s trial 

counsel stated he did not believe there was a conflict because both Shamim and his 

father adamantly maintained that no assault had occurred. Trial counsel testified 

that he investigated the case by meeting with his clients, reading the offense 

reports from the April 16 incident as well as from the incident the day before, and 

talking with Shamim’s family. Trial counsel talked to Syed, who said he had heard 

the complainant recant her statement that Shamim’s father had assaulted her. 

Counsel did not find this helpful to Shamim and decided not to call Syed as a 

witness. Further, trial counsel talked to the State and learned that the complainant 

never recanted.

Shamim’s motion for new trial was denied. On appeal, this Court affirmed 

Shamim’s conviction. See Shamim v. State, 443 S.W.3d 316, 328 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d).

The Habeas Proceeding

Almost three years after his conviction, Shamim filed an application for writ 

of habeas corpus, alleging that his trial counsel had a conflict of interest that denied 

him his Sixth Amendment right to counsel and that newly discovered evidence

exonerated him. Attached to his application were five affidavits: two from 

Shamim’s friends, one from his brother-in-law, and the last two from Shamim and 
7

his father. In the first affidavit, his friend Sarwar R. Syed—who was not called as 

a witness in his assault trial—stated:

On January 5th 2013 (Saturday) on or about 2:00 am I 

asked [the complainant] (who shortly before admitted in 

front of family/friend that her father in law had not beat 

her and she lied about the whole incident) how can we 

trust her when she is constantly changing her stories. She 

asks for forgiveness and told me that her husband is a 

very loving man and that he had not beaten her once. 

She admitted that she made false allegations to put the 

family into trouble for reasons unknown.

The second affidavit, with language almost identical to Sarwar Syed’s, was 

from another friend, Syed Imran Ahmed. Ahmed recounted overhearing the 

complainant’s alleged recantation to Syed. Shamim’s brother-in-law, Muhammad 

Inam Khan, stated in his affidavit that, on the evening of the alleged assault, he 

saw no bruises on the complainant and saw the complainant run outside with a 

duffle bag and get into a car with a stranger. Khan further stated that some of 

Shamim’s documents, including identification and immigration paperwork, were 

found to be missing, and he believed the complainant planned this incident with 

other people. Finally, Shamim and his father stated in their affidavits that their 

trial counsel had an undisclosed conflict of interest because he represented them 

both and that if he had only represented Shamim the verdict might have been 

different. 
8

The State filed a response, contending Shamim’s trial counsel did not have 

an actual conflict of interest and that Shamim failed to prove actual innocence by 

clear and convincing evidence. The State attached to its response an affidavit from 

the complainant in which she stated she had never recanted. 

The trial court denied the application. At Shamim’s request, we issued an 

order directing the trial court to file findings of fact and conclusions of law. The 

trial court concluded that Shamin failed to establish a conflict of interest or that 

“new evidence” established actual innocence. 

Standard of Review

When reviewing a trial court’s grant or denial of habeas relief, we “review 

the facts in the light most favorable to the trial judge’s ruling” and “uphold it 

absent an abuse of discretion.” Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. 

Crim. App. 2006). When the trial court makes written findings and conclusions in 

support of its denial, we also review those for abuse of discretion. See Ex parte 

Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011). We defer to the trial 

court’s findings of fact that are supported by the record. See Ex parte Amezquita, 

223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford the same deference to 

the trial court’s application of law to the facts if that ruling is based on the 

credibility or demeanor of witnesses. See Ex parte Peterson, 117 S.W.3d 804, 819 

(Tex. Crim. App. 2003), overruled in part on other grounds, Ex parte Lewis, 219 
9

S.W.3d 335, 371 (Tex. Crim. App. 2007). If resolution turns only on application 

of legal standards and does not involve evaluation of credibility, we review that 

decision de novo. See id.; State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d). 

No Actual Conflict of Interest

In his first issue, Shamim claims his trial counsel’s conflict of interest denied 

him his Sixth Amendment right to counsel. Shamim further contends that his trial 

counsel provided ineffective assistance because there was a conflict of interest in 

representing both Shamim and his father. The State responds that Shamim failed 

to establish the existence of an actual conflict and thus, has not shown an abuse of 

discretion by the trial court in denying the application on this ground. 

The purpose of the Sixth Amendment is to ensure that a criminal defendant 

receives a fair trial. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 

2065 (1984). The Sixth Amendment guarantee of the right to counsel “includes 

the right to ‘conflict-free’ counsel.” Goody v. State, 433 S.W.3d 74, 78 (Tex. 

App.—Houston [1st Dist.] 2014, pet. ref’d) (op. on reh’g). Defense attorneys are 

ethically obligated “to avoid conflicting representations and to advise the court 
10

promptly when a conflict of interest arises during the course of trial.” Cuyler v. 

Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708, 1717 (1980).2

Defense counsel is in the best position both “professionally and ethically to 

determine when a conflict of interest exists or will probably develop in the course 

of a trial.” See id. Although representation of multiple defendants may constitute 

ineffective assistance, representation of multiple defendants is not a per se 

violation of the constitutional guarantee of effective assistance. See Holloway v. 

Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1178 (1978); James v. State, 763 

S.W.2d 776, 778 (Tex. Crim. App. 1989) (en banc). Generally, a trial court may 

assume that either that no conflict exists despite multiple representation or the 

lawyer and client both knowingly accepted any conflict that may exist. See 

Sullivan, 446 U.S. at 346–47, 100 S. Ct. at 1717. 

When a defendant asserts ineffective assistance based on an actual conflict 

of interest, the defendant must establish that an actual conflict existed and that it 

adversely affected the adequacy of counsel’s representation. See Sullivan, 446 

U.S. at 349–50, 100 S. Ct. at 1719; Kegler v. State, 16 S.W.3d 908, 912 (Tex. 

 

2 The Disciplinary Rules of Professional Conduct state that a lawyer shall not 

represent a person if representation involves a matter related to that of another 

client of the lawyer and the clients’ interests are “materially and directly adverse.” 

Tex. Rules Disciplinary P. R. 1.06(b)(1), reprinted in TEX. GOV’T CODE ANN., tit. 

2, subtit. G, app. A-1 (West 2013). Moreover, a lawyer shall not represent a party 

if representation of that client may be adversely limited by the lawyer’s 

representation of another client. See id. at R. 1.06(b)(2).
11

App.—Houston [14th Dist.] 2000, pet. ref’d). Until the defendant shows “counsel 

actively represented conflicting interests, he has not established the constitutional 

predicate for his claim of ineffective assistance.” See Sullivan, 446 U.S. at 350, 

100 S. Ct. at 1719.

The Texas Court of Criminal Appeals has held that an actual conflict of 

interest exists when “one defendant stands to gain significantly by counsel 

adducing probative evidence or advancing plausible arguments that are damaging 

to the cause of a co-defendant whom counsel is also representing.” See James v. 

State, 763 S.W.3d 776, 779 (Tex. Crim. App. 1989). Stated another way, an actual 

conflict arises if counsel is required to make a choice between advancing one

client’s interests to the detriment of the other client’s interest. Acosta v. State, 233 

S.W.3d 349, 355 (Tex. Crim. App. 2007). “[A] potential conflict may become an 

actual conflict but we [may not] speculate about a strategy an attorney might have 

pursued . . . in the absence of some showing that the potential conflict became an 

actual conflict.” Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003). 

In James v. State, a case somewhat similar to this one, the defendant and codefendant were both represented by the same attorney. 763 S.W.2d at 778. Unlike 

Shamim’s case, however, the defendant and his co-defendant were tried together. 

See id. at 777. The two defendants presented “mutually exclusive alibi defenses” 

and did not incriminate each other. Id. Nor did any witness testify in favor of one 
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defendant to the detriment of the other. See id. The trial court found no actual 

conflict existed. Id. The Court of Criminal Appeals upheld this ruling, finding that 

“potential, speculative conflicts of interest” never rose to the level of “actual, 

significant conflicts.” Id. at 781–82. Because the defense strategy had been that 

neither defendant could have committed the crime and their testimony never 

deviated or incriminated the other defendant, the Court held that the only evidence 

of a conflict was the “speculative argument from appellants’ counsel on appeal” 

regarding “the ‘likelihood that the defense attorney could have, would have and

should have’ advanced evidence and arguments advantageous to each defendant 

but did not do so because of the multiple representation problem.” Id. at 781

(emphasis in original). 

The distinction between James and cases holding there was proof of an 

actual conflict is that potential conflicts in those cases became actual conflicts “due 

to the inculpatory or exculpatory nature of testimony or the strategy adopted by 

defense counsel in the particular case.” Id. (citing Ex parte Parham, 611 S.W.2d 

103 (Tex. Crim. App. 1981) (trial attorney testified actual conflict arose because he 

could have called one brother to testify and exculpate other brother) and Gonzales 

v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980) (trial strategy to call one 

defendant to rebut State version of events backfired when defendant inculpated 

other two defendants)); see Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App. 
13

1984) (after State rested, defendant advised counsel he was guilty and codefendant was not). 

There is no proof that Shamim or his father inculpated the other or that a 

trial strategy backfired. Shamim claims trial counsel could have offered proof that 

his father was the perpetrator. But his argument fails, as it did in James, because it 

is based on what could have occurred, viewed with hindsight, without proof that an 

actual conflict arose. See James, 763 S.W.2d at 781–82. This presents only 

speculation and not proof of an actual conflict. See id. 

Shamim contends that he has established the existence of an actual conflict 

by showing that trial counsel had to make a choice between advancing his interest 

or his father’s interest when counsel spoke to the last-minute potential witness, 

Sarwar Syed. Just before trial, counsel spoke with Syed but decided not to call him

as a witness because his testimony may have been viewed as detrimental to 

Shamim. According to trial counsel, Syed stated that the complainant had 

previously said Shamim’s father was not involved in the assault. Such testimony 

may have lessened any doubt in the jury’s minds that Shamim was the one who 

caused the complainant’s injuries. After hearing this proposed testimony, trial 

counsel decided not to call Syed as a witness in Shamim’s trial. 

Shamim and his father were tried separately. This reduced the risk that any

potential conflict would rise to the level of an actual conflict. As the Supreme 
14

Court noted in a similar context, “[t]he provision of separate trials [for Shamim 

and his father] significantly reduced the potential for a divergence in their 

interests.” Sullivan, 446 U.S. at 347, 100 S. Ct. at 1718. Even if Syed’s alleged 

potential testimony reflected a possible conflict, it did not adversely affect 

counsel’s performance at trial or deny Shamim a fair trial. See Routier, 112 

S.W.3d at 585–86 (discussing cases in which actual conflicts were established 

through proof either that trial counsel “had to forego an effective strategy or that a 

strategy backfired due to an actual conflict that arose during trial.”). Without other 

evidence that an actual conflict developed, the “[f]ailure to emphasize the 

culpability of one defendant over the other does not create an actual conflict.” 

Kegler, 16 S.W.3d at 913.

Shamim finds support for his argument that denial of his writ was an abuse

of discretion in the fact that his father’s writ was granted. But his father’s habeas 

application contained several grounds, and the trial court’s order does not state on 

which ground it was granted. Thus, the fact that Shamim’s father’s application

was granted does not demonstrate that an actual conflict existed.

Because Shamin has not demonstrated the existence of an actual conflict, we 

must apply the Strickland standard to determine if he has shown that his trial 

counsel provided ineffective assistance. See Kegler, 16 S.W.3d at 912. Under 

Strickland, an appellant must show that his “counsel’s representation fell below an 
15

objective standard of reasonableness” and that this deficient performance 

prejudiced the appellant. See Strickland, 466 U.S. at 688, 691, 104 S. Ct. at 2064, 

2066–67. Trial counsel testified during the new-trial hearing that his investigation 

was limited to talking to Shamim, his father, other family members, and reviewing 

medical records, telephone records, and the State’s file. He noted that Shamim had 

no alibi. Trial counsel testified that his strategy was to attempt to restrict evidence 

to events of the day of the assault so that the jury would not receive evidence of 

earlier accusations of assault or view this as ongoing behavior. His strategy was to 

have the jury focus on the one behavior charged in the indictment—that Shamim 

assaulted the complainant by pushing her. Even if we were to determine that trial 

counsel’s performance was deficient—a matter we do not address—Shamim has 

not shown that he was prejudiced. 

To show prejudice resulting from trial counsel’s performance, Shamim 

would have to show a reasonable probability that the result of his trial would have 

been different. See Hernandez v. State, 726 S.W.2d 53, 59 (Tex. Crim. App. 1986) 

(en banc). Shamim contends counsel should have attempted to inculpate 

Shamim’s father, but counsel did raise this possibility during closing argument. 

Even if counsel had presented evidence inculpating Shamim’s father, this does not 

raise a reasonable probability that the result of the trial would have been different. 

Ample evidence supported a finding that Shamim assaulted his wife. The 
16

complainant testified at length about Shamim assaulting her. The police officers 

testified to their observations at the scene and to the complainant’s injuries. And, 

the photographic evidence corroborated the complainant’s testimony. We overrule 

Shamim’s first issue.

No Newly-Discovered Evidence of Actual Innocence

In his next issue, Shamim argues that the trial court abused its discretion in 

denying habeas relief on his claim of newly-discovered evidence of actual 

innocence. Shamim presented three affidavits in support of this argument. Two of 

these affidavits were from his friends, Sarwar Syed and Syed Imran Ahmed. In 

their affidavits, Syed and Ahmed stated that on January 5, 2013, roughly two 

weeks before the trial, they heard the complainant admit that she had lied about the 

assault. Shamim’s brother-in-law, Muhammad Imran Khan, stated in a third

affidavit that, on the day after the assault, he saw no bruises on the complainant 

and he saw her run outside and get in the car with a stranger. Muhammad also

stated that documents were discovered to be missing and, based on what he saw, he 

believed the complainant had planned the incident. 

No hearing required when evidence is not newly-discovered 

Shamim contends the trial court should have held a hearing to make a 

finding on witness credibility under Ex parte Harmon, 116 S.W.3d 778 (Tex. 

Crim. App. 2002). Although the trial court in Harmon held a hearing and found 
17

the complainant’s recantation in that case was credible, Harmon does not hold or 

state that a hearing is required in every case in which a witness claims that the 

complainant has recanted. See id. at 779. Generally, a trial court is not required to 

hold a hearing on a habeas application, particularly if the habeas judge presided 

over the applicant’s trial. See Ex parte Gonzalez, 323 S.W.3d 557, 559–60 (Tex. 

App.—Waco 2010, pet. ref’d). The trial judge who denied Shamim’s application 

for habeas relief also presided over his trial.

But an evidentiary hearing is required if an actual-innocence claim is raised 

and is supported by newly-discovered evidence. See Ex parte Franklin, 310 

S.W.3d 918, 922 (Tex. App.—Beaumont 2010, no pet.). “Trial judges who are 

confronted with contradictory affidavits, each reciting a plausible version of the 

events, ought to convene an evidentiary hearing to see and hear the witnesses and 

then make a factual decision based on an evaluation of their credibility.” Manzi v. 

State, 88 S.W.3d 240, 255 (Tex. Crim. App. 2002) (Cochran, J., concurring). The 

Court of Criminal Appeals has held that the credibility of newly-discovered 

evidence should be tested at a hearing. See Ex parte Brown, 205 S.W.3d 538, 546 

(Tex. Crim. App. 2006) (citing Franklin, 72 S.W.3d at 678).

Although Shamim raises an actual-innocence claim, the evidence supporting 

it does not constitute newly-discovered evidence. “Newly discovered evidence” is 

evidence that was not known to the applicant at trial and could not have been 
18

discovered with the exercise of due diligence. Id. at 545. The applicant “cannot 

rely upon evidence or facts that were available at the time of his trial, plea, or posttrial motions, such as a motion for new trial.” Id. 

The trial court could determine, without holding an evidentiary hearing, that 

Shamim’s habeas evidence was not newly discovered. The evidence regarding 

trial counsel’s representing both Shamim and his father was known by Shamim 

before trial. Additionally, the evidence about the complainant’s alleged 

recantation in January 2013 was known before trial. Because the habeas judge had 

presided over the trial, she had previously heard testimony about the conflict of 

interest and the alleged recantation and, therefore, was able to determine without 

an evidentiary hearing that Shamim’s habeas proof did not constitute newlydiscovered evidence. Thus, no evidentiary hearing was required.

Proof of innocence not clear and convincing

Additionally, Shamim’s three affidavits did not establish that he is actually 

innocent. As the State asserts, a person who has been convicted in a fair trial may 

not collaterally attack that conviction “without making an exceedingly persuasive 

case that he is actually innocent.” Brown, 205 S.W.3d at 545. The habeas 

applicant making an actual-innocence claim must show “by clear and convincing 

evidence that, despite the evidence of guilt that supports the conviction, no 

reasonable juror could have found the applicant guilty in light of the new 
19

evidence.” Id. at 545; see Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. 

App. 1996). To determine whether Shamim met this standard, the habeas court

was required to examine the habeas proof “in light of the evidence presented at 

trial.” Ex parte Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005). And the 

newly-discovered evidence “must constitute affirmative evidence of the applicant’s 

innocence.” Franklin, 72 S.W.3d at 678.

The affidavits Shamim presented do not clearly establish his innocence. The 

trial court concluded that Khan’s affidavit concerning the complainant’s lack of 

apparent injuries was not credible because it was contradicted by photographic 

evidence and the testimony of four trial witnesses. All three affidavits were

contradicted, not only by photographic evidence, but also by the testimony of three 

HPD officers who observed at least some of the complainant’s injuries, her 

agitated and fearful state, and the statements and demeanor of other members of 

the household. Moreover, the complainant testified to the verbal and physical 

abuse, and photographic evidence depicted bruises and facial swelling consistent 

with her testimony. She has not recanted that testimony. On the contrary, her 

affidavit attached to the State’s response to Shamim’s habeas application is 

consistent with her trial testimony.

Because a reasonable juror might have convicted Shamim on the basis of the 

photographic evidence and the complainant’s testimony, notwithstanding the three 
20

affidavits presented in the habeas application, Shamim failed to meet his heavy 

burden to establish actual innocence. See Ex parte Navarijo, 433 S.W.3d 558, 

570–71 (Tex. Crim. App. 2014) (holding that inculpatory evidence of abuse 

distinguished case from those where habeas relief was granted on basis of 

recantation partly because in those cases there was no physical or medical evidence 

establishing abuse had actually occurred). We overrule Shamim’s second issue.

Conclusion

Shamim had the burden to show the trial court abused its discretion in 

denying habeas relief on the basis of an actual conflict of interest that adversely 

affected his trial counsel’s performance or that newly discovered evidence 

constituted clear and convincing proof that no reasonable juror would have 

convicted him in light of that new evidence. We conclude that Shamim did not 

meet this burden. Accordingly, we affirm.

Harvey Brown

Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).