# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00294 ) Appellee, ) ) ) MCMINN COUNTY VS. ) ) HON. CARROLL L. ROSS, GLEN PORTER, ) JUDGE ) Appe llant. ) (Sale of Cocai ne)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF MCMI NN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : C. MI CHAEL ROBBI NS PAUL G. SUM MERS 46 North Third St reet Attorney Generaland Reporter Suite 719 Memphis, TN 38103 TODD R. KELLEY (On A ppea l) Assistant Attorney General 425 Fifth Avenu e North CHARLES M. CORN Nashvill e, TN 37243 Distri ct Public

Defender JERRY N. ESTES THOMAS E. KIMBALL Distri ct Attorney General Assistant Public Defender Washington Avenue 110 1⁄2 Washington Avenue Athens, TN 37303 Athens, TN 37303
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 While the transcript of the proceedings reflects that the jury returned a verdict of guilty ofsale of more tha n .5 grams of schedule II cocaine, which is a Class B felony, the Judgmentindicates that the Defend ant was found guilty of sale of less than .5 grams of cocaine, w

hich is a Class C felon

y. The Defendant was sentenced to ten years, which is the maximum sentence for a Class C felony under Range

II, multiple offender, but which is below the minimum for a

Class B felony

under Range II. While this discrepanc y does not affect the analysis of the issues presented, the case must be remanded for clarification of the record. -2- 

# OPINION

This is an appeal as

of right pur

suant to Rule 3 of the Tennessee Rules of Appe llate Procedure. The Defendant , Glen Porter , was indicted for the unl awful sale of more t han .5 grams of cocaine and fo r poss essio n with th e inten t to sell
more tha n .5gra ms of cocaine, in viol ation of Tennesse e Code Annotated § 39- 17-417. A McMinn County jur y found theDefe ndan t guilty of th e offen se of s ale of more than .5 grams of schedule II cocaine, t hough the Judgment reflects a convicti on for the sale of less than .5 gra ms of sche dule II cocaine. 1 The jury then found the Defendant not guil ty of possession wit h the intent to sell more t han .5 grams of cocaine, but convic ted the Defendant

of the lesser incl uded offense of simple possessi on of cocaine. The Defendant presents three issues for review: (1) wheth er the evid ence is s ufficient to sust ain the convi ctions; (2) whetherthe tri al judge er red by denyi ng the Defendant’ s reques t for a continuance; and (3) whether the tri al judge er red by permit ting improper argument by the prosecution. We find thes e issues to be without merit and affirm the judgm ent of the tria l court.

In August of 1997, Special Agent Ja mes Richardson of t he Alcohol Beverage Commission was contac ted by Detective BillMatthewsof the Athens Police Departm ent about dru g pro blems occ urr ing in Athe ns, Tenne ssee . On August 29, 1997, Richardson r eceived $100.00

from Detective Matthews, which-3-

he was to use to attempt to purchase crack co cai ne f rom any will ing sell er on Kilgore Street in Athens. Rich ar dson drove to Ki lgore Street and observed t he Defendantsitting on t he front porch at 520 Kilg ore Stree t. Richard son po inted to the Defendant, who ap pr oached the vehi cle and said, “What you need?” Richardson rep lied, “Can you do m e a hun dred?”, w hich he e xplained mean t a hundred dollars of crack co caine. The D efendant the n told Richards on to drive around the bloc k, which he di d. When he returned, Richar dson exchanged the $100.00 for five pieces of what he beli eved to be crack cocai ne. Ri chardson turned thesub sta nce ove r t o th e TBI cri me l ab, whi ch i dent if iedit as . 6 grams of cocaine base, or crack co caine.

Richardson was eq uippe d with a n aud io tape record er durin g this transacti on, but due to damage to the recor der, only

a portion of

the transacti on was re corde d. W hile Ric hards on’s voice is clearly heard on thetape, the other perso n is just

making noises whi ch the prosecut ion descri bed in closi ng a rgumen t
as “kind of grunting.” Richa rdson says on the tap e that he is going to a ttempt to buy drugs from a black m ale called “Bink”; then at trial he i dentifi ed the Defen dant, Glen Porter, as the indivi dual call ed “Bink” f rom whom he purchased the drug s.

After the purch ase, D etective Gary M iller with th e McM inn Co unty S heriff’s Departmen t, Dete ctive Bi ll Matt hews with the Athens Police Depar tment, and another o fficer named D aniel Denton approach ed the residen ce at 520 K ilgore Stree t. Det ective Mi ller st ated that three people were on the front porch when theyapproached. The Defenda nt was sit ting in a chair on t he right si de of the porch. Det ective Mi ller sec ured the Defendant , searched hi m, and removed-4-

money found on him. Besi de the Defendant’ s foot Mil lerfound a small fuse container

which contained asubstance Miller beli eved to be cocaine. Mill er also
saw a b ucke t next to th e Def enda nt whic h con tained a sm all con tainer w it h a substance believed t

o be cocaine ins ide. After t he Defendant was secured,Miller turned the evidence and money over to Detective Matthews.

Detective Matt hews testified that before the purchase, he dr ove through t he
area and s aw the Defe ndan t on the porch , then re ported to Ric hardson that it looke d lik e Bink , or the D efend ant, wa s the o ne wo rking o n that d ate. W hile Richardson was purchasing t he cocaine, Mat thews was in another car w ith Gary Miller and D aniel D enton. Matthew s did not s ee the D efenda nt walk ov er to Richa rdson ’s car, but he did see t he Defendant walk away from the car, walk over to the porch, a nd bend over. He di d not see anythingafter t his because he had to keep d riving arou nd. After t he purchase, he appr oached the house w ith Gary Miller and Daniel Denton. While Miller secured the Defendant and Denton secured an indi vidualwalki ng up towar ds the por

ch, Matt hews secure d two individu als who were standi n g out in t he yard. Once ever yone was secured, Miller showe d Matthe ws the co caine he had fou nd next to t he Defendant in a bucket and beside the Defend ant’s foot in a fuse co ntainer. He also gave Matthew s a roll of m oney w hich h e had taken from th e Def enda nt. Th e roll o f money consiste d of three hundre d and s ome o dd dollars
. Matthews stated that he had given Agent Rich ardson five twenties at the begi nning of t he transacti on and that he had rec orded the se rial numbers of those five twenties. H e found five twentieswith seri al number s tha t matched those he had recorded in the roll of money. The sub stances be lieved to be coca ine were tur ned over to th e TBI-5-

cri me lab, which found t he substances together to be 2.7 g rams of cocaine base , or crack cocai ne.

The only wit ness for

the defense was t he Defendant. He testifi ed that he went to Paul Moss’s home at 520 Kil gore Street between 10:00 and 10: 30 on the morning of Augus t 29 to disc uss pa inting Mo ss’s hou se. Two othe r people were at the house besides

Paul Moss. The Defendant never sawRichardso n drive up to the house, and he di d not go out to any automobil es. He k nows wh at crack cocai n e is, but

he did not handl e any while he was there. Af ter he had been there a while, three or four po lice officers cameup to th e hou se an d sea rched all the people who were th ere. The p olice took money from the Defendant, which the Defenda nt said was m oney he ha d been sa vi ng from w orking . He ha d this money in his pocket on Fri day because he was going to pay his parol e fees and probation fees the following Tu esday, whe n he saw h is officer. The Defendant
saw the officers pull som ething ou t of a buck et, but h e did n ot kno w who it belonged to or what it was. He did not see the fuse cont

ainer. He s a id the bucket was on the porch because people had been washing Moss’s cars in the past, but n o one w as was hing cars on that da y.

The Defendant said heis known by t he names Brody and Glen, but he was known by the name Bink about thirty years ag o. In ass erting th at he d id not s ell any cocaine to Richardson, t he Defendant stated, you didn’t hearmy voice on the tap e or noth ing. Evide ntly, if I had, he had purchased anyt hing to me, loo ks l ikeyou cou ld h ear my voice saying somethi ng to him. I didn’t just go give him nothingand justleave. Qui te nat urally , if I sold him anyt hing I’dbe looking f or some thi ng. I’ d hav

e so me ki nd of

con ver sat ion wit h hi m.-6-

He claimed that the re was no wa y mar ked m oney c ould h ave be en fou nd on him unless someone planted it . When asked i f he had an opinion about why the officers would lie a bout him , the Defe ndant r es ponded, “Yes, sir, one, for the simp le reason M r. Matthews ba ck in ‘90 when I first . . . went to the penitentiary, he stopped me 12 o r 13 consec utive times harassi ng me, but he never f ound any drugs on me, a nd tha t contin ued. T hat’s why I, why I think so an d why he’s ga ve him m y name in the first plac e.”

SUFFICI ENCY OF THE EVIDE NCE Tennessee Rule o f App ellate Pr ocedure 13(e) pr

escribes t hat “[f] indingsof guilt in criminalactions whet her by the t rial court or j ury shallbe set aside i f the evidence is insuf ficien t to support

the findi ngs by the trier of f act of guilt beyond a re asonable d oubt.” Tenn. R . App. P. 13(e). Evidence is suffic ient if, after r eviewing t he evidence i n the light most favorabl e to the pros ecution, any rationaltrier

of fact could have fou nd the essenti al elements of the crime beyond
a reasonabl e doub t. Jack son v. V irginia , 443 U.S . 307, 319 (1979); State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94). In additi on, because convict ion by
a trier of fact destroys t he presumption of innocence and imposesa presumption of guilt,a convicted criminaldefendant bears the bu rden of showingthat the evidence was insu fficient. McBe e v. State , 372 S.W.2d 173, 176 (Ten n. 1963);
see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (cit ing St ate v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).-7- In its review of theevidence, an a ppellate court m ust afford the State “ the strongestlegitimate view of the evide nce as well as all rea sonab le and leg itimate in ferencesthat may be d rawn therefrom .” Tug gle , 639 S .W .2d at 9 14 (cit in g State v. Cabbage , 571 S.W.2d 832, 835 (Ten n. 1978)). The court may not “ reweigh or re-evaluate the e vidence” i n the r ecord b elow. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimon y, the court mus t resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

To be gu ilty of the s ale of a contro lled su bstan ce, on e mu st kno wingly sell the controll ed substance . Tenn. Co de Ann. § 3 9-17-417(a )(3). The e videnc e in this case overwhelmingly shows that the Defendantsold $100.00 worth of crack cocaine, which was determined to be .6 grams of crack cocaine, to SpecialAgent Richardson. Ther efore, th e evide nce s uppo rts a find ing tha t the D efend ant is guilty of the s ale of more than .5 grams of a schedule II controll ed substance, and it also suppo rts a finding that the De fendant is guilty of the lesse r i nclude d offense o f the sa le of less t han .5 grams of a schedu le II controll ed substance. Richardson identified the Defendant in court as the person f rom whom he purchased the cocaine, and $100.00 in f ive marked twent y dollar bill s was removed from the Defe ndant w hen he was se arched . The D efenda nt points out thatRichardson did not descri be the denominati ons of the $100. 00 he received from Detective Matthews and that the money removed from the Defendant was not described as an amount certai n or in any par ticula r denomination s. He then argues, “This leaves the proo f estab lishing that a c ertain fiv e twen ty dollar bills were given to Richardson by Matthews, and later those same five twenty dol lar bills were retu rned to M att hews by M iller. It is the ranke st of spec ulation to-8-

conclude that in the interim be tween th ese two events it was the s ame five twenty dollar bill s thatwere being handl ed only by t he defendant.” Instead of

being the “rankest of speculation,” it is t he most reasonable inference thatthese sam e five twenty dollar b ills were given to t he Defendant by Ric hardson in exch ange for crack cocaine, t hen removed from the Defendant by Detecti ve Mill er, who turned them over to Detec

tive Matthews. Certai nly, t his is suf ficien t evidence that the Defendant is gui lty of

selli ng crack cocaine to Richardson.

The Defendant also ar gues that t he evidence i s insuff icient because the voice on the aud io ta pe was not ident ified as the Defendant’ s. He asserts that he denied the voice on t he tape was his and that the deni al was unrefuted. Howeve r, there is no clear voi ce to be heard on the tape. Regardless of whet her the voice on th e tape was identified, Richar dson identi fied the Defendant as the person who sold him thedrugs, and the marked money from the drug purchase
was found on the Defendant . This is more than s uffici ent evidence that the Defendan t is guilt y of the sal e of a contro lled substance. Therefore, this issue has no merit.

To be guilty of si mple possession of a co ntrol led substance, one must know ingly possess the controll ed substance . Tenn. Co de Ann. § 3 9-17-418(a ). Posse ssion m ay be ac tual or con structive. State v . Brown , 823 S.W.2d 576, 579 (Tenn. Cr im . App. 19 91); State v. Cooper , 73 6 S. W.2d 1 25, 129 (Ten n. C ri m. App. 19 87); S tate v. Will iams , 623 S.W .2d 121, 125 (Tenn. Crim . App. 1981 ). Constructive possession occurs whe n a person knowingly has “‘ the pow er and the intention at a given time to exercisedomini on and control ove r an obje ct, either directly or through othe rs.’” Williams , 623 S.W.2d at 125 (quoti ng United-9-

States v. Craig , 522 F.2d 29 (6th Cir. 1975) ). “‘ In es sence , c onstructive possession is the ability to reduce an objec t to actual posse ssion.’” Id. (quoting United States v. Martinez , 588 F.2d 49 5 (5th Cir. 1979)). In this ca se, cocaine totaling 2.7 gra ms w as fou nd in a fuse contai ner bythe De fenda nt’s foo t and in
a plastic contai ner in a bucket besi de the Defen dant on the p orch. Detective Matthewssaw th e Def enda nt walk away fr om R ichard son’s car, wa lk over to t he porch, and bend over, t hough he did not see what the Defendant was doing when he bent over. Based on this ev idence, a reasonable jur or could concl ude that the Defendanthad the abil ity to reduce the cocai ne to actua l possession, t hus the evidence was s ufficien t to con vic t the Defen dant of po ssessio n of coca ine.

DENIAL OFCONTINUANCE The Defen dant as serts that the trial judg e abu sed h is discr etion in denying his mot ion for a continuance. On the day of t rial, the Defendant asked the tri al
c ourt to continue t he case because the tape of the prel iminary hearing was missing. Wh ile defense counsel was not present at the prel iminary hearing, he argued thatthe Defendant r ecalled one of

the offi cers test ifyi ng at the preliminary hearing that

there was a videotape of the drug sal e, that now the officer denied there ever bein g a video tape, an d that he n eeded a continu ance to attemp t to find the prelimina ry heari ng tape. The trial j udge commented that “n ormally we haven ’t been having any videotapes” i n these types of cases, and t hat “it would be extre mely rare i f there was one. ” He stated t hat the officer was pres ent t o testify as to whether ther e was a video tape, then den ied the motion for a continua nce.-10- The granting or

denial of a conti nuance is lef t to the s ound discret ion of the trialjudge, and that deci sion “wil l not be di sturbed in the absence of a cl ear showing of gross abuse of his discr

et i on to the p rejudice o f the defen dant.” Baxter v. State , 503 S.W.2d 226, 230 (Tenn. Crim. App . 1973) (citations om itted);
see also State v. Meeks , 876S.W.2d 1 21, 1 30 (Te nn. Crim . App. 1993 ). “A reversalwill be o rdere d on a ccou nt of de nial of a contin uanc e only if the app ellate court is convinc ed that the comp laining pa rty did not ha ve a fair trial an d that a differ ent result would or m ight reasonab ly have been re ached ha d there been a differ ent disposit ion of theapplicat ion for a continuanc e.” Baxter , 503 S.W.2d at 230.

The Defendant argues t hat the denial of a conti nuance was an abuse of discre tio n because it foreclosed even the possibility of a n investiga tion to determine whether theprelimina ry heari ng tape could be f ound and whether the tape contained information whichcould be used i n cross-examini ng the officers. He also asserts that the t rial j udge abused his di scretion by denying t he continuance because he did not believe a videotape exi sted. The Defendant does not, however , show how he may have been prejudic ed because of the de nial of the cont inuance. Therefore, the deni al of the continua nce is no t reversi ble error , regardl ess of whether it was an abuse of discreti on.

The loss of a pr

eliminary

hearing tap e, in and of its elf, i s not preju dicial
error. Wh ile Rule 5.1(a) of the T ennesse e Rules of C riminal Proced ure requires thatprelimina ry heari ng proceedings “ be preserved by electron ic recordin g or its equivale nt” and “be made avail able for l isteni ng to by the defe ndant or defen dant’s counsel to t he end that t hey may be a pprised o f the evidence-11-

introducedupon th e prelim inary exam ination,” failure to preserve that pre liminary hearing may be harmle ss error. State v. B utts , 640 S.W.2d 37, 38 (Tenn. Cri m. App. 1982); see also State v. Carter , 970 S.W.2d 509, 511-12 (Tenn. Cri m. App. 1997); State v. Bohanan , 745 S.W .2d 892 , 896 (T enn. C rim. App . 1987).

The Defendant has made no showing of how the miss ing pr eliminary hearing tape actuall y harmed him. Instead, he simp ly allege s in his b rief that if he had been allowed more t ime, the preliminary hearing tape might have been found, and it might

have reveal ed that an of ficer testifi ed at that hea ring that there
was a videotape of

the drug tr

ansaction. He then argues that if thi s were the case, he could have used the tes timon y to cros s-exa mine the offic er durin g trial. This list of “ifs” a nd “m ights” d oes n ot dem onstra te that a differen t result w ould
o rmight reasonabl y have been reached had there been a conti nuanc e. Th e evidence against t he Defendant was ver y strong, and there is no way of determiningwheth er any impe achin g testim ony ex is te d without the prelim inary hearing tape. Th e Defe ndant h ad time to search for the tape whil e preparing his motion for a ne w trial, and he could have pr esented evidence of prejudice at the hearing on the mo tion for a new tria l if he ha d in fac t found the tap e and it revealed test imony

about a vi deot ape. Becaus e theDe fe ndant made no showing of prejudice, the de nial of a continuan ce is not reversible erro r.

IMPROP ER ARGUMENT BY PROSE CUTION Du ring closing ar

gument, the pros ecutor made the following statemen t , which the Defen dant as serts wa s impro per argu ment:

Folks, Mr. Ki mball ha s asked you to consider that t hese officers are lying. . . . But let m e tell you why this con spiracy theory thatthey’ve got, why you can’t even co nside r it as evidence.-12- They’ve introduce d not on e ounce of evidence that there’ s a conspiracytheory ag ainst Gle n Porter. I m ean did you hear an y evidence about how of ficers ar e conspiri ng against Glen Por ter or are conspiri ng against drug dealers i n this town? Defense counsel objected to this statement on t he ground that t he prosecuti on was shifti ng the burden of proof, but the tri al court ov erruled t he objecti on. The prosecutor t hen later ar gued, I can pro mise yo u that Bi ll Matt hew s had no reason to pl ant fake money on Gl en Po rter. I c an promise you that BillMatthews had no reason to plant crack cocaine on Glen Porter that wasn’t his, thatjust coi ncidental ly happened to be next to hi m while he coinc identa lly happened to have marked money on h i m, and coinc identa lly happ ened to have $300 .00 in cash on him sitting next to crack co caine. Where do you think that cash came fr

om? What do you think

he had reall y been doing that day? How do you t hink he really

got that $3 00.00? He was sell ing crack cocai ne. The Defen dant did n ot object to this argument at tri al, but now argues that it was improper.

In determining whether statemen ts m a de during cl osing argument constitute reversible e rror, it is neces sary to determine whethe r the statem ents
were improper, and if so, whether the improper statements affected the verdict. State v. Sutton , 562 S.W .2d 820 , 823 (T enn. 19 78); Harring to n v. State , 385 S.W.2d 758, 759 (1965). Cl osing argument i s a valuabl e privi lege for all part ies, and trialcourts gi ve the part ies widelatitude in their argum ents to the jury. State
v. Cauthern , 967 S.W .2d 726 , 737 (T enn. 19 98); Sutton , 562 S.W.2d at 823. Appe llate courts wil l not i nterfere with a trial court’s discr etion i n controll ing argument of counsel unless th ere has been a n abus e of that dis cretion. State v. Pulliam , 950 S.W .2d 360, 368 (Tenn. Crim . App. 1996 ).-13- W hile the parties are given wi de latitude i n their closi ng arguments, those argum ents are no t withou t limitatio n. They “ must be temperate, must be predi cated on evidence introduced during t he trial of the case, and must b e pertinent

to the issu es being tried.” Russe ll v. State , 532 S.W.2d 268, 271 (Tenn. 1976). A prose cutor m ay mak e an arg umen t t o the jury w hen th at argu men t is supported by evidence i ntroduced at t rial and may state an ultimateconclusion which would necessari ly fol low from the testimony of the prosecut ion witnesses. State v. Brown , 836 S.W.2d 530, 552 (Tenn. 19 92) (cit ing State v. Beasley , 536 S.W.2d 328, 330 (Tenn. 1976 ) ). A pro secu tor ma y also a rgue th at its pro of is unrefute d o r uncon tradicted. See State v. Rice , 638 S.W.2d 424, 427 (Tenn. Cri m. App. 1982). A prosecutor may not, however, pl ace his o r h er own credibility before the jury by stati ng his or her own opinions of the Defendant or the evidenc e. See Judge v. State , 539 S.W .2d 340, 345 (Tenn. Cri m. App
. 1976).

The Defendant complai ns that th e prosecuti on improperly argued that he had presented no proof in suppor t of his theory of

the case and that th is was an attemptto shif

t the burden of proof. The prose cution did ad dress the De fenda nt’s theory of the case by

stating , “But let me tellyou why this conspiracy theory t hat they’ve got, why you can’t even consider i t as evidence. They’ve i ntroduced not
one ounce of eviden ce that the re’s a con spiracy the ory again st Glen Porter. I
mean did you hear any evidence about how offi cers are conspi ring against Glen Porter or are conspiri ng against drug dealers i n this town?” The Defendant objected to this

comment at trial, but the trial court overrul ed the object ion. The comment was in response to argument by defense counseland was a comment
on the evidence. The effect of the state ment was to argue t hat the State’s case-14-

was uncontradic

ted by any evi dence of a poli ce conspiracy to frame the Defen dant. Su ch an a rgume nt was p roper, an d it was no t error to allow it.

The Defendant also complains that the prosecutor i mproperly argu ed that the proof clea rly showed t he marked $100.00 used forthe drug buy was f ound in the Defendant’ s possession and t hat the prosec utorimpr operly inserte d his person al opinion into the arg umen t. Though he rais es the se issu es on appe al, he did not contemporaneously objectto the argument when it was bei ng made. Since he fail ed to object during the a rgument, the i ssue is waived. State v. Little , 854 S.W.2d 643, 651 (Tenn. Cri m. App. 1992); Tenn. R. App. P. 36(a). Even so, the statement t hat the marked $100.00 wasfound in t he Defendant’s possession
was a prope r argum ent bas ed on th e State’s cas e, and even though the prosecutor

improperly

inserted h is personalopinion i nto the argu me nt by “promising”

the jury that the po lice had no r eason to plant

money or drugs on the Defen dant, we conclude that those statements did not affectthe verdi ct. The evidenc e again st the De fendan t was ove rwhelm ing.
Having found all the Defendant’ s issues to l ack merit, the judgment of t he trialcourt is affirme d in all re spec ts. The case is rem anded, however, for clarificatio n of whether the j udgment of con viction s hould have b een fo r the sa le of more than .5 grams of a controll ed substance or the sale o f less than .5 gra ms of a contro lled subs tance.

____________________________________ DAVID H. WELLES , JUD GE-15-

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JOE G. RILE Y, J UDGE