## NO. 12

- 22

- 00077

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

VALESKA BARNES , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FR OM THE

COUNTY COURT AT LAW

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION Valeska Barnes appeals her convictio n for assault. In two issues, Appellant contends that
Texas Penal Code Section 12.50 is unconstitutional, and deficiencies in the reporter ’ s r ecord
necessitate a remand for retrial on the merits. We affirm.

B ACKGROUND The State, by information, charged Appellant with assault

. 1 The in formation also alleged
that the offense was committed in an area subject to a state of disaster declaration mad e by the
G overnor. 2 This allegation elevated the minimum punishment to a range of 180 days and one
year of confi nement in jail , along with up to a $4,000 fine

. 3 This allegation did not affect Appellant ’ s eligibility for community supervision. Appellant p leaded “not guilty” to the offense and the matter proceeded to a jury trial. The State and Appellant stipulated that the offense occurred in an area subject to a state of
disaster declaration. The evidence revealed that Appellant and the victim unknowing ly shared the same lover, and that early one morning Appellant discovered the victim in h er lover ’ s bed,

1 See T EX

. P ENAL C ODE A NN

. § 22.01 (West Supp. 2022 ).

2 See T EX

. G OV ’ T C ODE A NN

. § 418.014 (West 2019 ).

3 See T EX

. P ENAL C ODE A NN

. § 12.50 (West Supp. 2022 ).2 resulting in an assault in which Appellant struck the victim , and a melee ensued

. Their lover

re turned to the apartment and separated the two. The vi ctim rep orted the incident to the
authorities several hours later , who subsequently arrested Appellant

. After hearing t he evidence, the jury found Appellant “guilty” of the offense and
sentenced her t o 360 days of confinement in the county jail and asses sed a $4 ,000 fine. However, the jury also recommended that the portion of Appellant ’ s sentence requir ing her
confine ment be suspended and that she be placed on community supervision. The trial court

a nnounced Appellant’s sentence in accordance with the j ury’s ve rdict. This appeal followed.

C ONSTITUTIONALITY OF T EXAS P ENAL C ODE S ECTION 12.50 In her first issue, Appellant contends that the Texas Legislature ’ s promulgation of Texas Penal Code Section 12.50 violates the separation of powers doctrine enshri ned in t he Texas
Constitution.
Standard of Review We review de novo a challenge to the constitutionality of a statute. Salinas v. State , 464 S.W.3d 363, 366 (Tex. Crim. App. 2015). We afford great deference to the Legislature and presume that the statut e is con stitutional and that the Legislature has not acted unreasonably or arbitrarily. Ex parte Lo , 424 S.W.3d 10, 14

- 1 5 (Tex. Crim. App. 2014). The party challenging the statute normally bears the burden of establishing its unconstitutionality. Id. at 15.
Whe n we interpret statutes, our duty is to determine and give effect to the apparent intent of the legislators who v oted on it. Whitehead v. State , 273 S.W.3d 285, 288 (Tex. Crim. App. 2008)

. In determining the legislative intent, we focus our atten tion on the text of the statute and how ordinary legislators would have understood the text. Id. We are not empowered t o substitute what we believe is r ight or fair for what the Legislature has written, even if the statute
seems unwise or unfair. Vandyk e v. Sta te , 538 S.W.3d 561, 569 (Tex. Crim. App. 2017)

. “Judicial intervention is generally unwarranted no matter how un wisely we may think a political
branch has acted.” Id. Applicable Law The separation of powers among branches of government is fundame ntal in our country’s history. Id. at 571. T he Texas Constitution provides in pertinent part as follows :3 The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate b ody of m agistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; a nd no person, or collection of persons, being of one of these departments, shall exercise any power properly atta ched to either of the others, except in the instances herein expressly permitted

.

T EX

. C ONST

. art. II, § 1. Although the language of the separ ation of powers provision is rigid, there is natural overlap in the duties delegated to each branch. Vandyke , 5 38 S.W.3 d at 571. Not every instance of overlap, therefore, will amount to a violation of separation of powers. See Arm a dillo Bail
Bonds v. S tate , 802 S.W.2d 237, 239

- 40 (Tex. Crim. App. 1990)

. The Separation of Powers Clause may be violated in either of two way s. Vandyke , 538
S.W.3d at 571. First, it is violated when one branch of government assumes, or is delegated, to
whatever degree, a power that is more “properly attached” to another branch. Armadillo Bail
Bonds , 802 S.W.2d at 239. When a branch of gover nment violates separation of powers in this way, it is said to have usurped another branch’s power. See Ex parte Giles , 50 2 S.W.2d 774, 786 (Tex. Crim. App. 1974). The provision is also violated when one branch unduly interferes
with another bran ch so th at the other branch cannot effectively exercise its constitutionally assigned powers. Armadillo Bail Bonds , 802 S .W.2d at 239 (citing Rose v. State , 752 S.W.2d 529, 535 (Tex. Crim. App. 1987)). This undue influence test “‘takes the middle ground between those who would seek rigid compartmentalization and those who would find no separation of powers violation until o ne branch completely disrupted another branch’s ability to function.’”
State v. Williams , 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) (quoting Armadillo Bail Bonds , 802 S.W.2d at 239). Our Constitution vests all lawmaking power in the Legislature of the S t ate of Te xas. T EX

. C ONST

. art. III, § 1. Provisions of our Constitution serve only as a limitation on power of the Legislature and n ot as a grant of power. Vandyke , 538 S.W.3d at 573. This includes the power to make, alter, and repeal laws, in accorda n ce with the other provisions of the
Constitution. Id. Of importance here, the Legislature possesses the sole authority to establish
criminal offenses and prescribe punishments. Id. (citing State ex rel. Smith v. Blackwell , 500 S.W.2d 97, 104 (Te x. Crim

. App. 1973) (“The Legislature is invested with the lawmaking power of the people and may define crimes and prescribe penalties.”) ) ; se e also A rmadillo Bail Bonds ,4 802 S.W.2d at 239 (citing Rose v. State , 752 S.W.2d 529, 535 (Tex. Crim. App. 1987)); Jones v . State , 902 S.W.2d 102, 105

– 06 (Tex. App.

— Houston [1st Dist.] 1995, pet. ref’d).
D efendants must generally preserve error on alleged violati ons of most constitutional rights. Perales v. State , 622 S.W.3d 575, 585

– 86 (Tex. App.

— Houston [14th Dist .] 2021 , pet. ref’d )

. This includes an argument that a particular statute violates the s eparation of p owers provision of our C onstitution

. W ilkerson v. State , 347 S.W.3d 720, 724 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref’d) (stating that separation of powe r s challenges must be preserved). However, there is an exception : a penal statute’s compliance with the separation of powers
section of the Tex as Constitution is an absolute, systemic requirement that cannot be waived.
Henson v. State , 4 07 S.W.3d 764, 768 (Tex. Crim. App. 2013) ; Elizondo v. State , 541 S.W.3d 271, 275 (Tex. App.

— Houston [14th Dist.] 2017, pet. ref ’ d)

. Discussion
It is dif ficult t o ascertain the exact contours of Appellant ’ s constitutional claim in her first
issue. On the one hand, she appe a rs to challenge the Legislature ’ s delegation of authority to the
Governor i n Texas Government Chapter 418 pertaining to his de claratio n of a s tate of disaster

. On the other hand, she also appears to contend that Texas Penal Code Section 12.50 violates th e separation of powers doctrine in Article I, Section 2 of the Texas Constitution. To the extent that Appellant challenges the Legisla ture ’ s d elegation of authority to the
G overnor in Chapter 418 of the Texas Government Code, we hold that she failed to pr e serve this
issue. See T EX

. R. A PP

. P. 33.1 ; see also Ex parte Williams , No. 03

- 20

- 00457

- CR, 2021 WL 1583882, at *11

– 12 (Tex. App.

— Aus tin Apr. 23, 2021, no pet.) (mem. op., not designated for publication) (holding defendant failed to preserve error challe n ging separation of powers argument concerning Governor’s COVID

- 19 pandemic order made under Texas Government Code Chapter 418 , which a mong oth er things, suspen ded rules related to personal bonds for
individuals who have been convicted or have been arreste d for crimes involving physical violence). At no point did Appellant object to the application of Chapter 418. See Wilkerson , 347 S.W .3d at 7 24

. In fact, the parties stipulated that the assault took place in a n area subject to

a dis aster zone proclamati o n issued by the G overnor

. In any event, Chapter 418 does not present a violation of the separation of powers provision. The Disaster Act in Chapter 418 establishes a detailed, comprehensive framework that, in the case of a disaster, allocates powers, du t ies, and responsibilities across various levels5 of state government and multiple agencies. See Ector Cnty. All. of Businesses v. Abbo tt , No.
11

- 20

- 00206

- CV, 2021 WL 4097106, at *2 (Tex. App.

— Eastland Sept. 9, 2021, no pet.) (mem. op.). A “disaster” is “ t he occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man

- made ca use,” inclu ding the COVID

19 pandemic. See T EX

. G OV ’ T C ODE A NN

. § 418.004(1) (West Supp. 2022 ); see also See Ect o r Cnty. All. of Businesses , No. 11

- 20

- 00206

- CV, 2021 WL 4097106, at *2. The G overnor of Texas is responsible for meeting “the dangers to the state and p eople presented by disasters.”
T EX

. G OV ’ T C ODE A NN

. § 418.011(1) (West 2019 ). The purposes of the Di s aster Act include, among other things , to : (1) reduce vulnerability of people and communities of this state to damage, injury, and los s of lif e and prope rty resulting
from natural or man

- made catastrophes and riots ; (2) clarify and strengthen the roles of the governor, state agencies, the judicial branch of state government, and local governments in prevention of, preparation for, respon se to, a nd recovery from disasters; (3) authorize and provide for cooperation in disaster mitigation, preparedness, respo n se, and recovery; and (4) authorize and provide for coordination of activities relating to disaster mitigation, preparedness,

response , and re covery by agencies and officers of this state, and similar state, local, interstate,
federal

- state, and foreign a c tivities in which the state and its political subdivisions may participate. See id. § 418.002 (1), (4)

- ( 6 ) (West Supp. 20 22 )

. The Act provides that the “ [G] overnor by executive order or proclamation may declare a

s tate of disaster if the [G] overnor finds a disaster has occurred or that the occurrence or threat of
disaster is imminent. ” Id

. § 418.014(a) (West 2019 )

. The “state of disast er” cont inues until the
G overnor finds that the threat or danger has passed ; or the disaster has been dealt with to the

ex tent that emergency conditions no longer exist ; and terminates the state of disaster by
executive order. Id. § 418.014(b)

. Important ly, the statute continues:

A state of disaster may not continue for more than 30 days unless renewed by the [G] overnor

. The [L] egislature by law may terminate a state of disaster at any time. On termination by the [L] egislature, the [G] overnor shall iss ue an ex ecutive order ending the state of disaster.

Id. § 418.014(c). This provision avoids any separation of powers is sue because it balances the Legislature’s delegation of authority to the Governor to act expeditiously in times of emergency,
while al so p rese rving its own authorit y to terminate the state of disaster. In other words, the6 statute retains the power of th e Legislature to act in its legislative function and does not represent an improper delegation of authority to the Governor

. As for Tex as Penal Code Section 12.50, t he Texas Court of Criminal Appeals has held that an Appellant cannot waive a violation of th e s eparation of p owers d octrine ’ s application to a penal statute. See, e.g., Henson , 407 S.W.3d at 768. Appellant ’ s brief appears to primari ly challenge the Governor ’ s authority to declare a disaster zone in periods when the Legislature
does not meet. H owever, liberally construing her brief , it appears Appellant also challenges
Section 12.50. W e hold that Appellant’s s eparation of p o wers cha llenge to this st atute is unavailing

. Texas Penal Code Section 12.50 provides elevated penalties for various ca te gories of enumerated offenses committed during a declaration of a state of disaster made by the Governor
under Texas Government Code C hapter 4 18. See T EX

. P E N AL C ODE A NN

. § 12.50 (West Supp. 2022). Assault is one of these offenses, elevating the minimu m term of confinement to 180 days.
See id § 12.50 (b)(1), (c). As we have stated, the Texas Constitution vests all lawmaking power in t he Legis lature
of the St ate of Texas. T EX

. C ONST

. art. III, § 1. Furthermore, the Legislature possesses the sole
autho ri ty to establish criminal offenses and prescribe punishments. Vandyke , 538 S.W.3d at 573 (citing Blackwell , 500 S.W.2d at 104); see al so Armad illo Bail Bonds , 802 S.W.2d at 239;
Jones , 902 S.W.2d at 105

– 06.
Texas Penal Code Section 12.50 does not repres en t a delegation of its lawmaking authority ; rather it provides elevated punishments for offenses that occur during a state of
disaster , which i s fully wi thin its legislative function to establish criminal offenses and prescribe punishment

. See Vandyke , 5 38 S.W.3d at 573. It is within the constitutional power vested in the Legislature to determine that the penalty for certain crimes like assault occurring in times of a
state of disaster should be enhanced , the apparent purpose of which is to provide addit io nal deterrence and keep the peace during such periods. See T EX

. G OV ’ T C ODE A NN

. § 418.002, .014;
T EX

. P EN

. C ODE A NN

. § 12.50 ; Vandyke , 538 S. W.3d at 573. Accordingly, we hold that Appellant has failed to show that one branch of government improperly usu rp ed another branch’s power, or that one branch unduly interfered with another
branch so that the other branch cannot effective l y exerci se its c onstitut ionally assigned powers.
See Armadillo Bail Bonds , 802 S.W.2d at 239

.7 Appellant’s first issue is overru le d.

R EPORTER ’ S R ECORD D EFICIENCIES In Appellant ’ s second issue, she argues that the reporter ’ s record is of such deficient quality and charact er that it may not be relied upon by this Court, necessitating a remand for
retrial on the merits.
Standard of Re view

“ Whether a court reporter violates her statutory duties is a question of law that we review
de novo. ” Walsh v. State , No. 05

- 19

- 00710

- C R, 2021 WL 3438069, at *1

– 3 (Tex. App.

— Dallas Aug. 5, 2021, no pet.) (mem. op., not designated for publication) (c iting Herron v. State , 625 S.W.3d 144, 152

– 53 (Tex. Crim. App. 2021) (questions of statutory construction reviewed de novo) ; Ex parte De La Cr uz , 466 S.W.3d 855, 866 (Tex. Crim. App. 2015) (“We review de novo both pure questions of law and mixed question s of law and fact that do not depend upon credibility and demeanor.”) ). “When we interpret statutes, we look to the literal t ext of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment.” Day v

. State , 614 S.W.3d 121, 127 (Tex. Crim. App. 2020). Our analysis ends if the plain language is clear and unambiguous becaus e “the Legi slature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a st at ute.” Id. Applicable Law Texas Rule of Appellate Procedure 13.1 provides that the official court reporter must,
“unless ex cused by ag reement of the parties, attend court sessions and make a full record of the proceedings.” T EX

. R. A PP

. P. 13.1(a). Tex as G overnment C ode Section 52.046 provides that,

“ on request , an official court reporter shall:

(1) attend all sessions of the c ourt; (2) take full shorthand notes of oral testimony offered before the court, including objections made to the ad mi ssibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings; (3) take full shorthand notes of closi ng arguments if requested to do so by the attorney of a party to the case, including objections to the arguments , court rulings and remarks on the objections, and exceptions to the rulings; (4) preserve the note s for future reference for three years f rom the date on which they were taken; and (5) furnish a transcript of the reported evidence or other proce ed ings, in whole or in part, as provided by this chapter.8 T EX

. G OV ’ T C ODE A NN

. § 52.046(a) (West 2023 ) (emphasis added)

. The Texas Cour t of Cri minal Appeals has held that a defendant must object to the court reporter ’ s failure to record a portion of the t ri al proceedings to preserve error. Valle v. State , 109 S.W.3d 500, 508

– 09 (Tex. Crim. App. 2003); see also Rodriguez v. State , 491 S.W .3d 18, 33

– 34 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref ’ d) (holding that defendant ’ s argument regarding reporter ’ s f ai lure to record bench conferences was waived on appeal where defendant did not object at trial); Velazq uez v. State , 222 S.W.3d 551, 55 6

– 57 (Te x. App.

— Houston [14th Dist.] 2007, no pet.) (concluding that defendant ’ s complaint that court reporter failed to r ecord bench conferences was not preserved for appellate review because defendant did not object to lac k of court reporter ’ s presence a t confer ences). This rule lik e wise applies to any alleged failure to record voir dire proceedings in whole or in part. S ee Washington v. State , 127 S.W.3d 111,
114

– 15 (Tex. App.

— Houston [1st Dist.] 2003, no pet.) ( holding defendant did not preserve compl aint tha t court reporter failed to record voir dire proceedings); see also Hunnicutt

McDonald v. State , No. 01

- 18

- 01035

- CR , 2019 WL 3484215, at *2

– 3 (Tex. App.

— Houston [1st Dist.] Aug. 1, 2019, no pet.) (mem. op., no t designated for publication) (holding d efendant waived failure of court reporter to record bench conferences concerning challenges for cause of prospective jur or s during voir dire )

. Discussion Appellant first contends that the voir dire transcript contain s twenty

- five instances in
which the cou rt repor ter indicated “ANON” when referring to some of the venirepersons on the panel , thereby limiting her ability to c ha llenge the panel on appeal. At the outset, we note that m any of the “A NON ” references occurre d because Appellant ’s
counsel did not id entify t he venireperson to whom he asked the question. T he remaining

“ ANON ” references were in response to inconsequent ia l matters. Furthermore, Appellant did not object to any juror selected in voir dire. She also never objected or otherwise made the t rial

cou rt aware of her complaint, and therefore did not preserve error. See Washington , 127 S.W.3d
at 114

– 15; see also H unnicutt

- McDonald , 2019 WL 3484215, at *2

– 3. Moreover, even if she had preserved the is sue, she fail s to show error. In a similar cas e, the d efendant alleged that the court reporter failed to fulfill her duties in not identifying the prospective jurors by name or number, and that this prevented him from challenging the
dismissal of two of t he jurors for cause. See Wals h , 2021 WL 343806 9, at *1

– 2

. The Dallas9 Court of Appeals disagreed, noting that the reporter identified each member of the venire panel

as “prospective juror” unless the judge or counsel identified them by name or juror numbe r. See
id. at *2. The court explained:

Secti on 52.04 6 includes no requirement that the court reporter identify veniremembers by name or juror number when the trial ju dge and the parties’ counsel do not identify the veniremembers by name or juror number. Under the plain language of the statute, the court re porter was required to “take full shorthand notes of oral testimony.” The court reporter fulfilled that duty he re

. The record shows that the court reporter fully transcribed the proceedings by transc ribing the words spoken by the trial judge, the venirem embers, and the parties’ counsel. There is no indication in the record that any portion of what transpired is m is sing from the transcript.

See id. at *3 (internal citations omitted)

. That is what occurred in the instant case

— the court reporter recorded the veniremember’s name or number when referred to as such by counsel or
the court. Any “ANON” references occu rr ed when either the court or counsel failed to identify the person by name or number. Therefore, we conclude that the court reporter d id not e rr in this regard. See id. Next, Appellant challenges several portions of the trial transcript, alleging that it contains
several inaccuracies. For example, Appellant contends that the following excerpts from the transcript outlined in her brief contain inaccuracies of such a magnitude that we cannot rely on them, necessitating a remand for a new trial :

During t he direct examination of the [ victim ,] the prosecutor

. . . is reported as having asked the witness:
Q. And was it usual for him to get pone ca lls at 5:17 in the morning? Was that n ormal?

. . . . Q. Was there anything going on in [your lover ’s ] life at t hat? A. Yes. His grandfather ill at that time. Q. What kind of disease did he have? A. Some type of cancer or something that he was very ill and very sick six.

. . . . Q. You spent the night, at the request of [your lover] in his bed, and you were at tack? A. Yes, ma’am.

. . . . Q. Now, [victim] , are you on Face Book? A. Yes, ma’am. Q. What is Face Box?

. . . .10 Q. You wold be talking about Detective Stouffer, then? A. Correct.

. . . . Q. And there are a lot of people that smoke marihuana. I appreciate your honesty for admitting that. Thank you for telling the true.
Under recross examination, defense counsel is reported as havin g asked the victim : Q. Okay. And you wanted that commitment, didn’t? A. Yes, I did.
On redirect examination, [ the prosecutor] asked [the victim] : Q. But you ended things after this happen, didn’t you? A. Correct.

. . . . Q. And you didn’t specific ally ask? A. No, because I was really looking at was it an assault and how the assault occurred. Not what happe ne d six hours or ten hours our however long prior to that.
During [the prosecutor’s] direct examination of Officer Seth Stouffer, the transcri pt reports:

A. Which looking at assaults, she had visible injuries then she’s assault.

We first note that when su ch an error is raised for the first time in the appellate court, we

may abate the appeal and refer the matter to the trial court to be resolve d. See T EX

. R. A PP

. P. 34.6(e)(3) (“If the dispute arises after the reporter’s record has been filed in the app el late court,
that court may submit the dispute to the trial court for resolution.”); s ee also Flores v. Grayson Cnty. Cent. Appraisal D ist. , No . 05

- 16

- 00180

- CV, 2016 WL 7384161, at *3 (Tex. App.

— Dallas Dec. 21, 2016, no pet.) (mem. op.) (discussing discre ti onary nature of appellate courts to submit disputed inaccuracies in court reporter’s record to trial court for resolution). In other words, i f not warranted in a pa rticular case, we are not required to abate the appeal. See T EX

. R. A PP

. P. 34.6(e)(3); se e also Flores , 2016 WL 7384161, at *3

. Here, the complained of portions of the transcript relate to simple misspellings or omitted wo rds that are immaterial when co nsidered in
their context within the record. Furthermore, among other requirements, to b e entitled to a new trial for deficiencies in the reporter’s record, the error must relate to a significant exhibit or significant porti on of th e reporter’s record, an d such portion must be necessary to the appeal’s resolution. See T EX

. R.11 A PP

. P. 34.6(f) (2 )

- (3); see also Lazy W Conservation Dist. v. Jones , No. 12

- 22

- 00168

- CV, 2023 WL 327805, at *8 (Tex. App.

— Tyler Jan. 19, 2023, no pet. h.) (mem . op.) (holding that mi ssing portion of record be significant and necessary to appeal’s resolution, and if not, er ror is harmless and new trial not required). Appellant has not shown that the errors are significant, necessary to the appeal’s resol ution, o r that s he was harmed b y any of the inaccuracies in the record. See
Flores , 2016 WL 7384161, at *3 (overruling ap pellant’s complaints about alleged inaccuracies in court reporter’s record and noting appellant “has failed to put forth any argument about ho w he has been harmed by these alleged inaccuracies or how they might affect our ability to conduct an appellate re view”). Accordingly, for these reasons, we hold that Appellant is not entitled to a new trial for the alleged errors in the reporter’ s record

. Appellant’s second i ssue is overruled.

D ISPOSITION Having overruled Appellant ’ s two issues, the trial court ’ s judgment is affirmed

.

B RIAN H OYLE Justice
Opinion delivered March 31 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TE XAS

JUDGMENT

MARCH 31 , 2023

NO. 12

- 22

- 00077

- CR

VALESKA BARNES , Appellant V. THE STATE OF TEXAS , Appellee

Appeal f rom the County Court at Law
of Nacogdoche s County, Texas (Tr.Ct.No. CF2001769 )

THIS CAUSE came to be heard on the appellate record an d briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judg ment.
I t is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this deci si on be certified to the court
below for observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., a nd Neele y, J.