## NO. 12

- 14

- 00115

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JASON WAYNE BELCHER, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEA L FROM THE 115TH

JUDICIAL DISTRICT COURT

UPSHUR COUNTY, TEXAS

O PINION Appellant, Jason Wa yne B elcher , appeals his conviction of the offense of a ggravated

a ssault of a c hild , enhanced by a prior conviction for the same type of conduct. Appellant raise s three issues on appeal. We affirm.

B ACKGROUND Appellant was accused of putting his finger inside the female sex organ of H.C., a child, on or about January 17, 2012. At trial, H.C. testified that Appellant had done this on two
occasions. In February 2014, two months before trial, Appellant’s daughter S

. told her second grade teacher, Alicia Collier, that her father had been doing “sex things” with her. S

. was taken to the Northeast Texas Child Advocacy Center where she was interviewed by Mary Spurlin . S

. told Mary Spurlin that Appellant had anal and vaginal intercourse with her starting when she was four years of age and ending around Christmas 2013 when she was eight. S

. also told Spurlin that Appellant had sexually abused her younger sister, R

. , w ho is severely disable d and cannot communicate verbally. Immediately prior to trial, the trial court conducted a hearing out of the presence of the jury to determine if the evidence of the extraneous sexual offenses alleged to have been2

committed by App ellant against children would support a jury finding that Appellant committed the offenses beyond a reasonable doubt. At the hearing, the court also heard Appellant’s objection to the admission of that evidence

. Appellant argued the evidence should be exc luded, because (1) the extraneous offense evidence was irrelevant except to show his propensity to commit sex crimes against children , (2) its probative value was substantially outweighed by the danger of unfair prejudice, and (3) the admission of the evid ence under Tex as Code of Criminal
Proc edure Article 38.37 , Section 2(b) denied him due process of law. The trial court found the evidence sufficient for admission, and overruled Appellant’s objections. S. did not testify at trial . However, both Collie r and Spurlin told the jury what S. had told
them. Other evidence showed Appellant had a prior conviction for aggravated sexual of a child in another county.

D UE P ROCESS In his first issue, Appellant contends the trial court’s admis sion into evidence a t the guilt

- innocence stage of the trial of three extraneous sex offenses against children other than the complainant deprived him of due process of law. Therefore, he contends that Texas Code of Criminal Procedure Article 38.37, Section 2(b), under which the evidence was admitted , is
unconstitutional. Standard of Review and Applicable Law In reviewing the constitutionality of a statute , we must presume that the statute is valid
and that the l egislature did not act unreasonably or arbitrarily in enacting it

. Ex parte Granviel
, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The person challenging the statute must show
that the statu t e is unconstitutional. Id

. “The Due Process Clause protects the accused against conviction except upon proof beyond a reasona ble doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970); Fisher v. State , 887 S.W.2d 49, 52 (Tex. Crim. App. 1994). “The essential guarantee of t he Due Process Clause is that the government may not imprison or otherwise physically restrain a person except in accordance with fair procedures.” Long v. State , 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled on other grounds , Briggs v. State , 789 S.W.2d 918 (Tex. Crim. App. 1990).3

T o establish a due process violation, it is the appellant’s burden to show that the challenged statute or rule violates those “fundamental conceptions of justice which lie at the base of our civil and political institut ions and which define the community’s sense of fair play and decency.” Dowling v. United States , 493 U.S. 342, 352

- 53, 110 S. Ct. 668, 674, 107 L. Ed. 2d 708 (1990); United States v. Lovasco , 431 U.S. 783, 790, 97 S. Ct. 2044, 2049, 52 L. Ed. 2d 752 (1977 ) (citations omitted). Effective September 1, 2013, the legislature amended Art icle 38.37 of the code of criminal p rocedure. Act of June 14, 2013, 83 rd Leg., ch. 387 , § 3 , Tex. Session Law Serv. 1168,
1168

- 69 (current version at T EX

. C ODE C RIM

. P ROC

. A NN art. 38.37 (West Supp. 2014))

. Section 2(b) now provides that in a trial of a defendant for the enumerated sexual crimes against children, evidence that the defendant has committed certain offenses against a non victim of the charged offense is admissible for any bearing it may have on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant

. T EX

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. P ROC

. A NN

. art. 38.37 § 2(b) (West Supp. 2014). Appellant’s Argument Appellan t argues that it has been a fundamental principle of our judicial system that an accused person must be tried only for the offense charged and not for being a criminal or bad person generally. See Templin v. State , 711 S.W.2d 30, 32 (Tex. Crim. App. 1986) . “It is for this reason that Anglo

- American jurisprudence has always shown a marked reluctance to admit evidence of extraneous offenses or prior misconduct.” Id . Such evidence has been considered admissible only if it is relevant to proving an issue, s uch as motive, intent, identity , or malice. Id

. Appellant argues that the evidence of the three extraneous offenses admitted under Article
38. 3 7 , Section 2(b) was relevant only to show the jury that he had a disposition of character, or propensity to sex ually abuse children. The admission of the evidence of offenses relevant only to showing his propensity to commit such crimes, he insists, denied him a fair opportunity to defend against the particular charge against him. He argues that the admission of the evidence of the prior offenses was so prejudicial as to violate his constitutional right to due process. History of Propensity Evidence The ban against propensity evidence in our jurisprudence is over three hundred years old dating back to seventee nth century cases. See United States v. Castillo , 140 F.3d 874, 881 (10th Cir. 1998) (citing Hampden’s Trial , 9 How. St. Tr. 105 3, 1103 (K.B. 1684) ) . The ban therefore4

would appear to have the historical pedigree essential for constitutional standing. H owever,

“ [ t ] hat the practice is ancient does not mean that it is embodied in the Constitution. ” United States v. Enjady , 134 F.3 d 1427, 1432 (10 th Cir. 1998). Over the past one hundred years, all s tates have , by rules similar to our Rule 404 and
F ederal Rule of Evidence 404 or by judicial adoption, allowed the prosecution to introduce prior bad act evidence, including sexual misconduct. See Basyle J. Tchividjian, Predators and Propensity : The Proper Approach for Determining the Admissibility of Prior Bad Acts Evidence
in Child Sexual Abuse Prosecutions , 39 A M

. J. C RIM

. L. 327, 334

- 35 ( 2012). But such evidence was not admissible to prove the defendant’s character or propens ity to commit the crime charged; instead, it was limited to other purposes such as proof of motive, opportunity , intent, identity, or absence of mistake or accident

. Id. ; see F ED R. E VID

. 404 (“Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait.”); T EX

. R. E VID

. 404 (same). However, child sex abuse cases present evidentiary problems not resolved by any of the extraneous bad acts exceptions in Rule 404. In such cases, t he prosecution typically must rely on the largely

unc orroborated testimony of the child victim. As in the instant case, the child’s credibility
becomes the focal issue. Over 150 years ago, some courts had begun to devise an exception to the general rule in cases charging sexual misconduct. In 1858, th e M ichigan Supreme Court stated as follows:

The general rule in criminal cases is well settled, that the commission of other, though similar offenses , by the defendant, can not be proved for the purpose of showing that he was more likely to have committed th e o ffense for which he is on trial[.] . . . But the court s in several of the s tates have shown a disposition to relax the rule in cases where the offense consists of illici t intercourse between the sexes[.] . . .

People v. Jenness , 5 Mich. 305, 3 20 (Mic h. 1858). In Barker v. State , 12 0 N.E. 593 (Ind. 1918), the defendant was charged with carnal knowledge of a girl under the age of sixteen. Id. at 593. The trial court allowed the prosecutor to question the defendant about other instances of sexual
activ ity between himself and t he victim. Id. at 595. The Indiana Supreme Court sustained the conviction holding that5 such other acts are relevant and admissible to show the lustful disposition of defendant as well as to show the existence and continuance of t he illicit relation, to characterize and explain the act charged , and to corroborate the testimony of the prosecutrix as to that act.

Id. (emphasis added). By the early twenties, twenty

- three states had adopted some form of lustful disposition except ion to the rule against propensity evidence in statutory rape cases. United States v. Castillo , 140 F. 3d 874, 881 (10 th Cir. 1998) (citing Thomas J. Reed, Reading G a o l Revisited : Admission of Uncharged Misconduct Evidence in Sex Offender Cases , 21 A M

. J. C RIM

. L AW 127,
171 (1993) ) . In 1994, t he lustful disposition exception was essentially incorporated into federal law through the Violent Crime Control Act and amendments to the Federal Rules of Evidence allowing the admission of prior bad act evidence in child molestation cases and rape and sexual
assault cases . Tchividjian, 39 A M

. J. C RIM

. L AW at 340

. The next year, Texas adopted a similar version of the exception, but limited the evidence of other crimes or wrongs to only those committed by the defenda nt against the child victim of the alleged offense. Act of May 28, 1995, 74th Leg., ch. 318, § 48(a), 1995 Tex. Gen. Laws 2734, 2748

- 49 (amended 2005, 2011, 2013)

. By 2012, thirty

- three states and the District of Columbia allowed evidence of the
defendan t’ s prior sexual abuse of a child as propensity evidence in a trial for sexual abuse of
children. Tchividjian, 39 A M

. J. C RIM

. L AW at 339.
Discussion
In Castillo , the Tenth Circuit held that F ederal R ule of E vidence 414 does not violate the Constitution’ s promise of due process because of the protection provided by F ederal R ule of
E vidence 403. 140 F.3d at 883 ; see also F ED

. R. E VID

. 414 (authorizing admission of similar
crimes in child molestation cases ). Federal R ule of Evidence 403, like its Texas co unterpart Rule 403, excludes evidence if its probative value is substantially outweighed by a danger of unfair prejudice. The Ninth Circuit followed Castillo ’s rationale that the application of Rule 403 to Rule 414 eliminates due process concerns raised b y Rule 4 14. United States v. Le M ay , 260 F.3d 1018, 1027 (9 th Cir. 2001). In United States v. Mound , the Eighth Circuit considered the constitutionality of Federal Rule of Evidence 413 allowing propensity evidence in rape and
sexual assault cases. See ge nerally 149 F.3d 799 (8 th Cir. 1998). In Mound , the court concluded that Rule 413 is constitutional if Rule 403 protections remain in effect. Id. at 801; see also Enjady , 134 F.3d at 1431.6

We addressed a similar due process challenge to the earlier , mor e restrictive version of
Article 38.37 in Jenkins v. State , 993 S.W.2d 133 (Tex. App.

— Tyler 1999, pet. ref’d). At that time, t he statute provided that “[n]ot withstanding Rules 404 or 405,

. . . evidence of other crimes, wrongs, or acts committed by the de fendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters , including : (1) the state of mind of
the defendant and the child ; and (2) the previous and subsequent relationship between the
defendan t and the child. ” Act of May 28, 1995, R.S., ch. 318, § 48(a), 1995 Tex. Gen. Laws 2734, 2748

- 49 (amended 2005, 2011, 2013)

. In Jenkins , we rejected the appellant’s due process claim and upheld the constitutionality
of the statute. 993 S.W.2d at 136. We acknowledged that “the article may allow evidence that assists the State in proving its case beyond a reasonable doubt , ” but concluded that it did not impermissibly lower the s tate’s burden of proof. Id. Fundamental fairness was preserved by the
defen dant’s right to cross examination. Id. ; see also Brantley v. State , 48 S.W.3d 318 , 330 (Tex. App.

— Waco 2001, pet. ref’d); Phelps v. State , 5 S.W.3d 788, 798 (Tex. App

. — San Antonio 1999, pet. ref’d). In Jenkins , we were not required to address the applica bility of Rule 403 to
evidence admitted under A rticle 38.3 7. A number of courts, however, have since considered the question and have held that, when evidence of the defendant’s other acts against the child victim

were offered in evidence under the origi n al version of Article 38.3 7 , the trial court was required
to conduct a Rule 403 balancing test in determining the admissibility of the evidence. E.g. , Colvin v. State , 54 S.W.3d 82, 84

- 85 (Tex. App.

— Texarkana 2 001, no pet.); Walker v. State , 4 S.W.3d 98, 103 (Tex. App.

– Waco 1999, pet. ref’d); Poole v. State , 974 S.W.2d 892, 897 (Tex. App.

– Austin 1998, pet. ref’d). Article 38.37 as amended now provides for the admission of evidence of other sex crimes committed by the defendant against children other than the victim of the alleged offense “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of defendant.” T EX

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. A NN

. art. 38.37 § 2(b). Though diff erent in wording , the state statute and Federal Rule of Evidence 414 have virtually the same effect. Both make admissible evidence of the defendant’s other sex crimes against children other than the complainant in order to show his propensity to commit th e act of child sexual abuse alleged. Compare T EX

. C ODE C RIM

. P ROC A NN

. art. 38.37 § 2(b) with
F ED

. R. E VID 414( a) (“ In a criminal case in which a defendant is accused of child molestation, the7

court may admit evidence that the defendant committed any othe r child molestation. The evidence may be considered on any matter to which it is relevant.”). However, before such evidence is admitted, the trial court must still conduct a balancing
test under Rule 403. See T EX

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. art. 38.37 § 2(b) (permitting admission of propensity evidence “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,” but not excluding from application of Rule 403). The trial may exclude the evidence if its probative value is outweighed by a danger of unfair pre judice, confusing the issues, misleading the jury , undue delay, or needlessly presenting cumulative evidence. T EX

. R. E VID . 403. Analogous to
f ederal practice, A rticle 38.37 , Section 2

- a requires that, before evidence of prior sexual
misconduct is admitt ed, the trial court must conduct a hearing out of the jury’s presence to determine that the evidence likely to be admitted will support a jury finding that the defendant committed the separate offense beyond a reasonable doubt. T EX

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. art. 38.37 § 2

- a; see , e.g. , LeMay , 260 F.3d at 1028 (district court determined admissibility of propensity evidence at pretrial hearing)

. The defendant’s ability to investigate and prepare t o confront evidence of other sexual misconduct is furthered by the statute’s mandate that the state give the defendant thirty days’ notice of its intent to introduce such evidence. Id. art. 38

. 37 § 3 (West Supp. 2014)

. Article 38.37 , Section 2(b) is more narrowly drawn than Federal Rule of Evidence 414.
Texas Rule of Evidence 403 , like its federal counterpart , protects the defendant against the admission of evidence that is so prejudicial as to deprive the defendant of a fair trial. The policy concerns that served to justify the federal decision to admit propensity evidence in child molestation cases are equally applicable to state prosecutions. The admission of evidence of Appellant’s other sexual crimes or bad acts against children other than the complainant
, H. C. , did not deprive Appellant of due process of law , and Article 38.37, Section 2(b) is constitutional

. Appellant’s first issue is overruled insofar as it pertains to the constitutionality of Article 38.37, Section 2(b).

R ULE 403 Appellant also contends, a s part of his first issue, that even if evidence of his prior sexual offenses against children was admissible under A rticle 38.37 , Section 2(b), the trial court erred in not excluding the evidence under Rule 403 because the State had no need for the evidence.8

Therefore, he maintains the probative value of the evidence was substantially outweighed by its prejudicial effect. Standard of Review and Applicable Law
We review the tria l court’s decision to admit evidence for abuse of discretion. Winegarner v. State , 235 S.W.3 d 787, 790 (Tex. Crim. App. 2007)

. When evidence of a defendant’s ext raneous acts is relevant under A rticle 38.37 , Section 2(b) , the trial court is still required to conduct a Rule 403 balancing test upon proper objection or request. Hitt v. State , 53 S.W.3d 697, 706 (Tex. App.

— Austin 2 001, pet. ref’d).
Texas Rule of Evidence 403 authorizes a trial court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless ly presenting cumulative evidence. “Probative value ” is the measure of “how strongly [the evidence] serves to make more or less probable the existence of a fact of consequence to the litigation

— coupled with the proponent’s need for that item of evidence.” Gigliobianco v. State , 210 S.W.3d 6 37, 641 (Tex. Crim. App. 2006). When the proponent has other compelling evidence to establish the fact or proposition that the challenged evidence goes to prove, the probative value of the contested evidence will weigh f

ar less in the probative versus prejudicial balance. Id

. “U nfair prejudice ” refers to a “ tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.” State v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). “E vidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.” Gigliobianco , 210 S.W.3d at 641. “[C]onfusion of the issues” refers to “ a tend ency to confuse or distract the jury from the main issues in the case.” Id . “[M]isleading the jury” refers to “ a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds.” Id

. Rule 403 does not require that the balancing test be performed on the record. Hitt , 53 S.W.3d at 706. In overruling a Rule 403 objection, the trial court is assumed to have performed a Rule 403 balancing test and determined the evidence was admissible. Id . There is a presumption tha t relevant evidence is more probative than prejudicial. Santellan v. State , 939
S.W.2d 155 , 169 (Tex. Crim. App. 1997).9

Discussion Appellant asserts that the State had no need for the evidence of the extraneous offenses ascribed to him. Therefore, he u rges that its probative value was significantly reduced. Appellant argues that the trial court erred in assigning too much weight to the probative value of
the evidence of the extraneous sexual offenses in conducting the Rule 403 balancing test

. We disag ree. H.C. was the only eye witness to the offense. There was no physical evidence to support her accusation. At the trial’s outset in his opening statement, Appellant’s counsel told the jury that the question “for your decision is, is this child credibl e?” H.C.’s mother acknowledged during cross examination that she had told someone that H.C. told a lot of lies. She conceded that she initially refused to believe H.C. Therefore, H.C.’s credibility was clearly the focal issue
in the case.
The evidence that Appellant had anal and vaginal intercourse with his daughter S

. for four years beginning when she was four years old was more repugnant and inflammatory than the offense alleged against H.C. Unquestionably, the testimony regarding S

. was highly preju dicial as was the evidence of Appellant’s prior conviction of aggravated sexual assault against a child. The extraneous offense evidence was highly prejudicial, principally because it was especially probative of Appellant’ s propensity to sexually assault children. The trial court did

no t abuse its discretion in determining that the probative value of the extraneous offense evidence was not substantially outweighed by the danger of unfair prejudice. The remaining portion of Appellant’s fir st issue is over ruled.

E FFECTIVE D ATE OF A RTICLE 38.37 , S ECTION 2( b ) In his second issue, Appellant contends that because he was indicted before the effective date of the changes in the la w incorporated in A rticle 38.37 , Section 2(b), those changes did not apply to any part of his prosecution, even though his trial began af t er the ir effective date. Applicable Law The enactment paragraph of the a ct adding the new Section 2 to A rticle 38.37 provides as follows:10 T he change in law made by this Act applies to the admissi bility of evidence in a criminal proceeding that commences on or after the effective date [Sept. 1, 2013] of this Act. The admissibility of evidence in a criminal proceeding that comme n ces before the effective date of this Act is covered by the law in eff ect when the proceeding commenced, and the former law is continued in effect for that purpose.

Act of June 14, 2013, 83rd Leg., R.S., ch. 387, § 3, 2013 Tex. Sess. Law Serv. 1168,
1168

- 69.
Discussion Appellant construes the phrase a “criminal proceeding ,” as used in the enactment paragraph, to mean the course of the prosecution as a whole commencing with the indictment. The State contends the phrase refers to each individual step in the prosecution.
In Howland v. State , 990 S.W.2d 274 (Tex. Crim. App. 1999), the indictment was

returne d before the effective date of the original version of A rticle 38.37. See id. at 275. Howland, like Appellant, argued that although his trial took place after the effective date, its provisions did not apply to the admiss ion of evidence at his trial , because his prosecution
commenced with his indictment before the effective date

. Id. The pertinent enactment paragraph provided that the article was applicable “to any criminal proceeding that commences
on or after the effec tive date of this Act . . . .” Act of May 28, 1995, R.S., ch. 318, § 48(b), 1995 Tex. Gen. Laws 2734, 2748

- 49 (amended 2005, 2011, 2013)

. The court noted that Section 1 of
Article 38.37 stated that the article applied to a “proceeding in the prosecution of a defendant.”
Howland , 990 S.W.2d at 276. By this language, “t he rule itself expressly distinguishes between a “proceeding” and a “prosecution” in a way that implies that there can be more than one proceeding in a given case. ” Id. at 277 (quoting Han ey v. State , 977 S.W.2d 638, 649

- 50 (Tex. App.

— Fort Worth 1998, pet. ref’d) (Livingston, J., concurring)). Based upon this distinction,

t he court of criminal appeals in Howland interpreted “ any criminal proceeding ” to mean that the act applied to “every s tep required to be taken in a prosecution of a defendant” and therefore to Howland’s trial. Id.
Article 38.37 , Section 2(b) , in its current form, applies to a “criminal proceeding” that occurred after September 1, 2013. Based on the definition of “crimi nal proceeding” adopted by the court of criminal appeals in Howland
, the trial court did not err in admitting evidence made admissible by A rticle 38.37 during Appellant’s trial in April 2014. Appellant’s second issue is overruled.11 N OTICE OF E XTRANEOUS O FF ENSE E VIDENCE In his third issue, Appellant complains that the State failed to give him thirty days’ notice that it intended to use, in its case in chief, evidence of the alleged assaults against his two daughters.
Section 3 of A rticle 38.37 provides that “ [t]he state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 not later than
the 30 th day before the date of the defendant’s trial.” T EX

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. art. 38.37 § 3.
O n April 7, 2014, two weeks before trial, Appellant filed two motions in limine. In the first motion, Appellant stated “[d]efense anticipates that the State shall attempt to introduce
evidence of acts of sexual contact between the defendant and an altern at e complainant.” In his
second motion , he urged the grounds for the exclusion of evidence of other sex crimes alleged to have been committed by him against children other than the complainant. The State’s failure to give Appellant thirty days’ notice bef ore trial of its intent to introduce such evidence was not a ground raised in either motion. Immediately before trial began , the trial court conducted a hearing out of the presence of the jury to determine if the evidence of sexual offenses against other children likely to be admitted would support a jury finding that Appellant committed the separate offenses beyond a reasonable doubt. During the hearing, Appellant heard the substance of the allegations of his sexual misconduct against S

. and R. At the c lose of the hearing, Appellant reiterated the objections urged in the two motions in limine. The trial court granted Appellant a running objection on the grounds raised in the two motions. Appellant at no time objected to the admission of the evidence ba sed upon the State’s failure to give the notice required by A rticle 38.37 , Section 3. “To properly preserve an issue concerning the admission of evidence for appeal, a party’s objection must inform the trial court why or on what basis the otherwise admiss ible evidence should be excluded.” Ford v. State , 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (citation omitted) . Error, if any, was not preserved.
See T EX

. R. A PP

. P. 33 .1(a)(1)(A). Appellant’s third issue is overruled.

D ISPOSITION Having overruled A ppellant’s three issues, we affirm t he judgment of the trial court

.12 B ILL B ASS Justice
Opinion delivered September 2, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment

.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 2 , 2015

NO. 12

- 14

- 00115

- CR

JASON WAYNE BELCHER,

Appellant V. THE STATE OF TEXAS, Appellee

Appe al from the 115th District Court of Upshur County, Texas (Tr.Ct.No. 16,276) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment

. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Bill Bass , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Bass , Retired J., Twelfth Court of Appeals, sitting by assignment.