NUMBER 13-09-00059-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

BELEN GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 105th District Court

of Kleberg County, Texas.

 

 MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza

 Memorandum Opinion by Chief Justice Valdez

Appellant, Belen Garza, was charged by indictment with twenty-three counts of

credit card abuse, a state-jail felony. See TEX. PENAL CODE ANN. § 32.31(b)(1)(A), (d)

(Vernon Supp. 2009). A jury found Garza guilty of all counts, and the trial court assessed

punishment at two years’ confinement in a state jail for each count with the sentences to
2

run concurrently. The trial court subsequently suspended the sentence, placed Garza on

community supervision for three years, and ordered her to pay $345 in court costs and

restitution in the amount of $3,866.40. By two issues, Garza argues that the evidence is:

(1) legally insufficient to establish that Thomas Trigo was the holder of the credit card; and

(2) legally and factually insufficient to prove that Garza committed credit card abuse. We

affirm.

I. BACKGROUND

This dispute pertains to the alleged unauthorized usage of a company credit card

by Garza. On May 22, 2009, a Kleberg County grand jury charged Garza with twenty-three

counts of abuse of a “Wright Express Credit Card #XXXX XXXXX XXXX 0063" with the

intent to fraudulently derive a benefit and without the consent of the cardholder, Thomas

Trigo. The indictment further provided that the incidents of credit card abuse transpired

on various dates between September 21, 2007 and October 22, 2007.

Prior to trial, on July 31, 2008, Garza filed a first amended motion to quash the

indictment, alleging that it lacked sufficient specificity to charge her with separate offenses.

She also alleged that the indictment failed to state the appropriate criminal mental state

and to give notice about “the name, address, or other identifying information where the

alleged wrongdoing occurred . . . .” After a hearing, the trial court denied Garza’s motion

to quash.

The jury trial in this matter commenced on December 1, 2008. The State called two

witnesses—Lydia Cantu and Manuel Thomas Trigo (“Thomas”)—to testify, and Garza,

Joanna Perales, and Marisol Lopez testified on behalf of the defense. 
3

A. Cantu’s Testimony

Cantu, owner of Mid Valley EMS, testified that Thomas worked for the company as

a director and that his duties included “running the day-to-day operations of the business.”

Cantu noted that the company had an accounting department that handled all business

accounts, including accounts receivable, and that Wright Express, a credit card company,

issued company credit cards to her and Thomas. These cards were used to fill the

company’s ambulances with diesel fuel. 

On cross-examination, Cantu admitted that she was not knowledgeable about all

of the “day-to-day operations” of the business, but she recalled that the company owned

approximately fifteen ambulances. Cantu stated that she and Thomas were the

cardholders of the credit cards. Later, defense counsel questioned Cantu about the

company’s articles of incorporation, and Cantu admitted that the corporation had been

dissolved and was now operating as a sole proprietorship. Cantu also testified that each

ambulance has a corresponding credit card, and each credit card is assigned a PIN

number.

B. Thomas’s Testimony

Thomas, the director of operations for Mid Valley EMS, testified that he ran “all the

stations from McAllen, Falfurrias, Houston[,] and surrounding areas.” Thomas noted that

the headquarters for Mid Valley EMS is in McAllen, Texas. Thomas recalled reviewing

Garza’s employment application and interviewing Garza and her friend and partner, Marisol

Lopez, for positions with the company. Thomas testified that the Mid Valley EMS fleet

consisted of twelve orthirteen ambulances. Thomas further testified that, when Garza was
 Trigo later testified that, “[y]ou can’t put unleaded fuel in an ambulance. If you put unleaded fuel in 1

an ambulance, you’ll burn the engine.”

4

first hired, he gave her a company credit card and a PIN number that was only to be used

to fill up her assigned ambulance with fuel. In fact, Thomas stated that:

Some medics get fuel cards, not all of them. I have two supervisors,

myself[,] and a couple of other management that has [sic] fuel cards. I have

a couple other medics that also have them because they’re out in the field.

And Belen Garza was one of the ones that I issued a fuel card to. 

Thomas insisted that he told Garza that the ambulances were to be filled up only

with diesel fuel even though none of these instructions were in writing. Thomas also: (1) 1

identified the last four digits of the credit card that Garza was issued as being 0063; (2)

stated that all of the Mid Valley EMS credit cards that were issued began with the following

numbers: “0444 XXXXX XXXX"; and (3) noted that Garza never returned to him the credit

card that was issued to her. Thomas also testified that he instructed Garza to try to fill up

the ambulance at the Stripes gas station located at Highways 281 and 285 in Falfurrias as

much as possible. The reason for this was because Valero, the parent company of the

Stripes gas station, keeps good records of the gas transactions. Regarding the PIN

number, Thomas told Garza not to “give anybody your [PIN] number” and that if problems

arose, she was to call Thomas to get authorization to act.

On cross-examination, Thomas acknowledged that he was not able to provide

evidence of Garza’s time cards because those records were located in the McAllen

headquarters and were destroyed during Hurricane Dolly. However, Thomas stated that

he made the schedules for the medics and posted them in the various offices. When

presented with transaction logs associated with the credit card that was allegedly issued

to Garza that were produced by the fraud division of Wright Express, Thomas noted that
 Thomas noted that a W right Express representative in the fraud division notified him that Garza “was 2

using excessive fuel on her card and on her [PIN] number . . . .”

5

the majority of the entries on the documents identified “B. Garza,” whom Thomas identified

as the defendant, as the purchaser. Thomas also admitted that Garza was a good medic

and that her employment record did not contain any complaints. He also acknowledged

that he gave Garza the credit card because he trusted her and that not all drivers for the

company were granted permission to use the credit cards.

On re-direct examination, Thomas recounted numerous instances in which Garza

allegedly used the credit card assigned to her to purchase large quantities of unleaded fuel

“a couple of times a day” from September 21, 2007 to November 2, 2007. Among the

many entries on the Wright Express documents were unleaded fuel purchases purportedly

made by Garza on several Sundays during the relevant time period, which, as Thomas

noted, were suspicious because Mid Valley EMS is closed on Sundays. Thomas admitted

that Garza and Lopez drove long distances between San Diego, Texas, and Robstown,

Texas, to pick up clients; however, most of the entries reflected that “B. Garza” purchased

unleaded gasoline at Shell, ExxonMobil, and Diamond gas stations in Kingsville, Texas,

a location that was not serviced by Garza or her partner. Moreover, many of the purchases

were made during times in which Thomas testified that Garza was not scheduled to work.

Thomas testified that the total of unauthorized charges made on the credit card issued to

Garza amounted to in excess of $6,000, and that he found out about the purported credit

card abuse upon reviewing large increases in the amount owed to Wright Express for

unleaded fuel on the credit-card statements. When asked to describe the front of the 2

credit card, which he was unable to produce at trial, Thomas recalled that the credit card

had a number on it and said that it was “issued from Mid Valley EMS.” In addition, Thomas
6

testified that, in order to purchase gasoline using the company credit card, users were

required to input the designated PIN number and the odometer reading on the ambulance,

and once completed, the users were issued a receipt, which was to be turned in to Mid

Valley EMS supervisors. Later, Thomas specifically testified that he was the cardholder

of the credit card that was issued to Garza. Finally, Thomas asserted that Garza “didn’t

pick up a [gas] card” when she reported for work “’cause [sic] she had it with her at all

times.”

The State rested at the conclusion of Thomas’s testimony. Garza subsequently

moved for a directed verdict, which the trial court denied. 

C. Perales’s Testimony

Perales, a dispatcher who worked for Mid Valley EMS for a month and a half,

testified that she was familiar with the operation of the Falfurrias office, where Garza was

stationed. Perales denied ever seeing Thomas in the Falfurrias office and noted that

Michael Trigo, Thomas’s brother, was the manager of the Falfurrias office. Perales

testified that the ambulance drivers did not “sign off for the card” and that there was not a

daily record made of which driver used which credit card. Perales also denied that Garza

was ever issued a credit card by Mid Valley EMS. Perales remembered that there were

four ambulances assigned to the Falfurrias office. 

On cross-examination, Perales admitted that she had a verbal altercation with one

of the Trigos regarding a partial payment for services she rendered. Perales further

testified that the medics would fill the ambulances up with fuel at the end of their shifts and

that the gas cards were turned in at the end of the day. Perales acknowledged that she

did not have access to the PIN numbers allegedly issued to the medics. 
 Rather than inform Mid Valley EMS that she was quitting, Lopez simply stopped “going to work.” 3

7

D. Lopez’s Testimony

Lopez, a licensed emergency medical technician and roommate of Garza’s, testified

that she and Garza worked as partners at Mid Valley EMS. Lopez denied ever working for

Thomas and stated that her immediate supervisor was Michael. Lopez noted that Michael

“was in charge of the Falfurrias area” and that no gas cards ever left the Falfurrias office.

Lopez asserted that neither she nor Garza were assigned a gas card. Lopez further

asserted that:

We’d go to the stations, the trailer, and in the trailer it’s cabinets and

cabinets. It has—the cabinet is a rolling thing. The keys are hung. The gas

cards are there. You get the keys. On the other side, they had like our jump

bag and our AEDs and we’d have to unlock them and get those out, put the

keys back, get the ambulance keys, get the fuel card, and then go and check

our trucks out outside.

Lopez also testified that she and Garza often had “long, long distance transfers” that

required them to “refill during the day.” Lopez stated that she and Garza did not have

patients in Kingsville and that they would fill up the ambulance at the Stripes gas station

in Falfurrias. Lopez further stated that she quit working at Mid Valley EMS because Mid

Valley EMS supervisors allegedly asked her to falsify documentation for Medicare and

Medicaid. 3

On cross-examination, Lopez testified that all of the medics knew the PIN numbers

to the gas card and had access to the gas cards. Lopez also testified that, on occasion,

all of the medics would “go to the Falfurrias station and we’d get in line, all the ambulances.

And if we were already pumping gas, the—we’d leave and the other guys will just follow

and fill up their ambulances.”
8

Later, Lopez stated that “the guys [Mid Valley EMS supervisors] from the Valley”

would drive “Lincoln cars” from McAllen to Falfurrias every day and would use the gas

cards to fuel up the vehicles. However, Lopez admitted that the Mid Valley EMS

supervisors driving from the McAllen to Falfurrias would not drive through Kingsville.

E. Garza’s Testimony

Garza stated that she worked as an intermediate EMT for Mid Valley EMS from

August 2007 to October 2007. Garza denied ever abusing a credit card belonging to Mid

Valley EMS. Garza admitted that she, Lopez, and Perales all have grievances against Mid

Valley EMS, yet Garza noted that neither Lopez nor Perales would perjure themselves for

Garza’s benefit. Garza acknowledged that she typically worked Mondays, Wednesdays,

and Fridays, but that Michael would call the medics and tell them “Tomorrow morning, be

there at X time.” Garza denied ever seeing a schedule posted in the Falfurrias office.

Garza also denied ever being issued a credit card and a PIN number. Garza then noted

that:

When we got hired with Mid Valley, with Michael, the first day he took us in

his personal vehicle to the valley to pick up an extra ambulance because he

didn’t have enough at the Falfurrias station for us to work the next day. We

went with him. He gave us a card, two uniform shirts and said[,] “Okay, go

back. Leave this card at the station. If you need it in the morning to fill up

or whatever, use it.”

According to Garza, the gas cards “were kept in a cabinet with the turnstile with no lock,

no anything on it.” Garza denied that Thomas was her boss and, instead, testified that

Michael was her immediate supervisor. Garza next recounted a verbal altercation with

Thomas and alleged that Mid Valley EMS supervisors “wanted us to falsify documentation

about patients.”
9

On cross-examination, Garza asserted that Mid Valley EMS supervisors used their

“Lincoln cars” to drive from McAllen to Kingsville to pick up patients. Garza admitted that

she had known Perales since 2004, when they worked together at Gold Star EMS. She

also noted that Perales was the one who told her that there was a warrant out for her arrest

regarding this offense. Garza denied having a credit card or a debit card and testified that

she paid for her gas with cash. Garza quit working as a medic for Mid Valley EMS on

October 31, 2007, when she stopped reporting to work. 

On re-direct examination, Garza stated that the gas card that she had used on her

last shift with Mid Valley EMS had already been turned in, and she corroborated Lopez’s

testimony that several ambulances would line up at the Falfurrias station and use the same

gas card to fill up.

At the conclusion of the trial, the jury found Garza guilty of all twenty-three counts

of credit card abuse. Because she had waived her right to have the jury impose a

sentence, Garza was sentenced by the trial court. The trial court imposed a two-year

sentence for each count with the sentences to run concurrently, suspended the sentence,

and placed Garza on community supervision for three years. In addition, the trial court

ordered Garza to pay $345 in court costs and restitution in the amount of $3,866.40. On

December 12, 2008, Garza filed a motion for new trial, which was later denied by the trial

court. This appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

In reviewing the legal sufficiency of the evidence, an appellate court must review all

the evidence in the light most favorable to the verdict, and ask whether “‘any rational trier

of fact could have found the essential elements of the crime beyond a reasonable
10

doubt—not whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). The trier of fact

is the sole judge of the facts, the credibility of the witnesses, and the weight given to

testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Jackson, 443 U.S.

at 318-19; Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000,

pet. ref’d). We do not reevaluate the weight and credibility of the evidence, and we do not

substitute our own judgment for that of the trier of fact. King v. State, 29 S.W.3d 556, 562

(Tex. Crim. App. 2000) (en banc); Beckham, 29 S.W.3d at 151. We resolve any

inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394,

406 (Tex. Crim. App. 2000).

In conducting a factual sufficiency review, a court of appeals reviews the evidence

in a neutral light to determine whether the evidence is so weak that the jury’s verdict seems

clearly wrong and manifestly unjust or against the great weight and preponderance of the

evidence. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Unless the record clearly reveals that a

different result is appropriate, we must defer to the fact-finder’s determination concerning

the weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705

(Tex. Crim. App. 2008).

The State is not required to present direct evidence, such as eyewitness testimony,

to establish guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

“Circumstantial evidence is as probative as direct evidence in establishing guilt of the actor,

and circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,
11

214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Guevara, 152 S.W.3d at 49. The law does

not require that each fact “point directly and independently to the guilt of the appellant, as

long as the cumulative effect of all the incriminating facts is sufficient to support the

conviction.” Hooper, 214 S.W.3d at 13; see Guevara, 152 S.W.3d at 49.

Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81

(Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see

Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d). “‘Such a

charge [is] one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof, or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant

was tried.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (quoting Malik,

953 S.W.2d at 240).

Under the Texas Penal Code, a person commits the offense of credit card abuse

if she knowingly presents or uses a credit card or debit card with the intent to obtain a

benefit fraudulently and “the card, whether or not expired, has not been issued to him and

is not used with the effective consent of the cardholder.” TEX. PENAL CODE ANN. §

32.31(b)(1)(A); see Harrell v. State, 852 S.W.2d 521, 524 (Tex. Crim. App. 1993). Section

1.07 of the penal code defines “benefit” as “anything reasonably regarded as economic

gain or advantage, including [a] benefit to any other person in whose welfare the

beneficiary is interested.” TEX. PENAL CODE ANN. § 1.07(a)(7) (Vernon Supp. 2009).

Furthermore, a “cardholder” is defined as “the person named on the face of a credit card

or debit card to whom or for whose benefit the card is issued.” Id. § 32.31(a)(1); see
12

Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994). 

A person acts knowingly “with respect to the result of his conduct when he is aware

that his conduct is reasonably certain to cause the result.” TEX.PENAL CODE ANN. § 6.03(b)

(Vernon 2003). Intent to commit credit card abuse may “be inferred from circumstantial

evidence[,] such as acts, words, and the conduct of the appellant.” See Guevara, 152

S.W.3d at 50; Lee v. State, 962 S.W.2d 171, 174 (Tex. App.–Houston [1st Dist.] 1998, pet.

ref’d) (stating that a cardholder’s lack of effective consent may be proven solely by

circumstantial evidence); see also Hayes v. State, Nos. 01-07-00238-CR, 01-07-00239-

CR, 2008 Tex. App. LEXIS 3163, at *10 (Tex. App.–Houston [1st Dist.] May 1, 2008, pet.

ref’d) (mem. op., not designated for publication).

III. ANALYSIS

By her first issue, Garza contends that the evidence demonstrating that Thomas

Trigo was the cardholder was legally insufficient because Mid Valley EMS was the actual

cardholder. Additionally, by her second issue, Garza contends that the evidence

supporting her conviction is legally and factually insufficient because the State failed to

prove that the credit card number alleged in the indictment was the number of the card that

she allegedly abused. She further asserts that the State failed to prove that she derived

any benefit from the card. The State argues that: (1) Garza failed to preserve for review

any alleged defects to the form of the indictment; and (2) the evidence is legally and

factually sufficient to support her conviction. 

A. Substantive Error in the Indictment

We agree with the State’s contention that Garza’s first issue constitutes a challenge
13

to the substance of the indictment. In making her first argument, Garza repeatedly

mentions that the evidence indicates that Thomas Trigo was not the cardholder and that

the State could not have sustained its burden in proving credit card abuse because the

indictment allegedly stated the wrong cardholder. In other words, Garza argues that the

indictment contains a substantive defect because it should have reflected that the

cardholder was Mid Valley EMS rather than Thomas Trigo. 

Article 1.14(b) of the Texas Code of Criminal Procedure provides that:

If the defendant does not object to a defect, error, or irregularity of form or

substance in an indictment or information before the date on which the trial

on the merits commences, he waives and forfeits the right to object to the

defect, error, or irregularity and he may not raise the objection on appeal or

in any other post conviction proceeding.

TEX.CODE CRIM.PROC.ANN.art. 1.14(b) (Vernon 2005); see Sanchez v. State, 120 S.W.3d

359, 367 (Tex. Crim. App. 2003); see also Salahud-Din v. State, 206 S.W.3d 203, 212

(Tex. App.–Corpus Christi 2006, pet. ref’d) (“Since omitting an element from an indictment

is a defect of substance in an indictment, it naturally follows that the indictment is still an

indictment despite the omission of that element.”). Here, counsel filed a motion to quash

the indictment, which was denied by the trial court; however, at no point did Garza object

to the allegedly erroneous listing in the indictment of Thomas Trigo, as opposed to Mid

Valley EMS, as the cardholder. See TEX. PENAL CODE ANN. § 32.31(a)(1) (defining a

cardholder as “the person named on the face of a credit card or debit card to whom or for

whose benefit the card is issued”). Because counsel did not object to the error contained

in the indictment before trial, this issue is not preserved. See TEX. CODE CRIM.PROC.ANN.

art. 1.14(b); see also Sanchez, 120 S.W.3d at 367; Salahud-Din, 206 S.W.3d at 212.

Accordingly, we overrule Garza’s first issue.
14

B. Legal and Factual Sufficiency

With regard to her second issue, we hold that the evidence supporting Garza’s

conviction is legally and factually sufficient. We base our conclusion on the testimony at

trial reflecting that numerous unauthorized charges for unleaded gasoline were made by

“B. Garza” at various gas stations in Kingsville from September 21, 2007 to November 2,

2007. Thomas identified Garza as “B. Garza” and noted that the gas could only be

purchased by using the PIN number that he had issued to Garza. Thomas also testified

that the ambulances could only be filled up with diesel gasoline since unleaded gasoline

would burn up the engines of the ambulances. Thomas stated that many of the

unauthorized purchases were made during times when Garza was not on duty as a medic

for the company, including Sundays when Mid Valley EMS was not open. Furthermore,

both Cantu and Thomas identified Thomas as a cardholder on the credit-card account.

Moreover, both Lopez and Garza admitted that they did not have any patients in the

Kingsville area. 

In contrast, both Garza and Lopez asserted that Mid Valley EMS supervisors used

the credit card purportedly issued to Garza to fill up their “Lincoln cars” in Kingsville.

Lopez, Garza, and Perales also testified that Garza was never issued a specific credit card

to be used to fill up the ambulances with gas. Further, both Garza and Lopez noted that

gas cards were turned in to the Falfurrias office at the end of every shift and that several

ambulances would fill up using the same gas card. Garza and Lopez denied ever being

issued a PIN number and stated that they filled up their ambulance at the Falfurrias Valero

gas station. In addition, Garza denied ever making unauthorized purchases using a Mid

Valley EMS credit card. 
15

However, the testimony of Perales, Lopez, and Garza is belied by the fact that each

had grievances against Mid Valley EMS and that the credit card statements created by

Wright Express demonstrated that “B. Garza” made numerous purchases of unleaded

gasoline in excess of $6,000 at various gas stations in Kingsville. Regardless, the

resolution of Perales’s, Lopez’s, and Garza’s testimony with the apparently contradictory

testimony of both Cantu and Thomas was within the province of the jury, and we must

defer to jury’s resolution. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (“When the record supports conflicting inferences, we presume that the fact[-]finder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination.”); see also Curry, 30 S.W.3d at 406; King, 29 S.W.3d at 562; Beckham, 29

S.W.3d at 151. Clearly, the jury rejected the explanations provided by Perales, Lopez, and

Garza regarding the alleged unauthorized credit card purchases. See Lancon, 253 S.W.3d

at 705 (stating that “[t]he jury is in the best position to judge the credibility of a witness

because it is present to hear the testimony, as opposed to an appellate court who relies

on the cold record”); see also Davila v. State, 147 S.W.3d 572, 575 (Tex. App.–Corpus

Christi 2004, pet. ref’d) (noting that jurors are free to accept or reject any or all of a

witness’s testimony) (citing Alvarado v. State, 818 S.W.2d 100, 105 (Tex. App.–San

Antonio 1991, no pet.)). 

Based on the foregoing, we hold, after reviewing the evidence in the light most

favorable to the verdict, that there is legally sufficient evidence to support the jury’s

conclusion that Garza knowingly presented the Mid Valley EMS credit card to obtain a

benefit—more than $6,000 worth of unleaded gasoline—without the effective consent of

the cardholders. See TEX.PENAL CODE ANN. § 32.31(b)(1)(A); see also Jackson, 443 U.S.
16

at 318-19; Laster, 275 S.W.3d at 517. We further hold, after reviewing the evidence in a

neutral light, that the jury’s verdict is not so weak that the verdict seems clearly wrong and

manifestly unjust or against the great weight and preponderance of the evidence. See

Neal, 256 S.W.3d at 275; Watson, 2054 S.W.3d at 414-15. Accordingly, we overrule

Garza’s second issue.

IV. CONCLUSION

Having overruled both of Garza’s issues, we affirm the judgment of the trial court.

________________________

ROGELIO VALDEZ

Chief Justice

Do not publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

19th day of August, 2010.