COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

SERGI O CAL DERON, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00315- CR

Appea l from County Court at L aw No. 1 of El Paso County , Texas (TC # 20080C14983)

O P I N I O N Serg io Calderon was convicted by a jury of driving whil e int ox icated. I n acc ordanc e with the State’s plea offe r, the court assessed his punishment at 180 day s in jail, b u t s u s p en d ed the

sentenc e and place d him on community supervision for fiftee n months. For the rea sons that follow,

we a ffirm.
F ACTUAL SUMMA RY El Paso Police Offic ers E d u ardo Castañon and Cristobal Her rer a observe d Appellant’s vehicle stopped in an oncoming traff ic lane at 1:30 in the morning

. Wh en t h ey approa ched the vehicle, the office rs saw Appellant slumped over the steering whee l, appar ently aslee p. The eng ine

was running and the g ear shift was in drive, but Appellant had his foot on the brake pedal. Castañon and He rre ra pounde d on the windows and y elled for him to wake up. When Appellant a wake ned, Offic er Castañon instructed him to put the vehicle in park. Acc ording to the office rs, Appellant
appea red disoriented and beg an fumbling with a cell phone, the windshield wipers, and other vehicle controls. He event u al l y put the vehicle in park and unlocked the door. Offic er Castañon rea ched in to take the key out of the ignition and immediately smelled alcohol on Appellant. He askedAppellant to step out of the vehicle. When Appe l l an t did so, he stumbled to the point of almost

falling

. Offic er Casta

ñon noticed that he ha d g lossy , bloodshot ey es. The recor ding device in the office rs’ car was not capa ble of rec ording sound, so they called for another office r to bring her car , which had a functioning audio and video reco rd er . W hile waiting for the other car to arr ive, t hey made Appellant stand with his hands on their patrol unit for a pproxi mately

ten minutes. Once the other car arr ived, Offic er Castañon conducte d three field sobriety tests and conclude d that Appellant was intox icated. A t that point, Appellant was for mally arr ested.
I n addition to Offic er Castañon’s observa tions, Offic er Her

rer a testified that he smelled alcohol, noticed that Appellant had bloodshot ey es and slurred speec h, and saw him f ail two of the three field sobriety tests. The third office r also observe d that Appellant was unsteady on his fee t and that Offic er Casta

ñon had to help him stand. ADMISSION OF OUT-OF -COURT STATEMENTS During Cast añ on’s testimony , the State play ed State’s Ex hibit 4, the video and audio

rec ording of Appellant’s encounte r with the office rs. I n I ssue One, Appellant contends that the trial

court abused its discretion by deny ing his motion to suppress statements made by him and by Offic er Castañon. He arg ues that the admission of his statements in State’s Ex hibit 4 violated Article 38.22 of the Texas Code of Criminal Procedur e and that t h e ad m ission of Castañon’s narr ation of the

events shown in the exhibi t violated the hear say rule. The State asser ts that these arg uments are not
prese rved f

or re view and tha t they

fail on the mer its in any

event. Preserv ation of Error The State initially arg

ues that Appellant’s first issue is not prese rved beca use he did not file

a motion to suppress. Although Appellant uses the term “motion to suppress” in his brief, the rec ord does not r efle ct that he filed a written motion to suppress. Howeve r, Appellant’s counsel objectedto the admission of State’s Ex hibit 4 at trial, s pecif ically “any audio on there , under 38.22 on Miranda and 38.23, and hear say .” Counsel and the trial judge then eng ag ed in a discussion outside the jury ’s prese nce, spanning over five pag es in the repor ter’s rec ord, as to whether the rec ording depicted a custodial interrog ation. The court ultimately overr uled Appellant’s objection, but g rante d him a running objection. Be cause Appellant’s arg uments wer e raised at trial and ruled on by the judge , they are prese rved for revie w. See T E X .R.A P P .P 33.1(a) ; see also Ross v. State , 678 S.W .2d 491, 493 (Tex.Crim.App.1984)(“When no pretria l hear ing is held, the defe ndant must object when the evidenc e is offe red a t trial to preser ve er ror on a ppeal.” ). The State next ar g ues that Appellant has failed to prese rve any thing for revie w beca

use his brief does not complain of any specific statement, nor does it discuss the case law reg arding custodial interrog ations. Wit hin the d i s cussi on of I ssue One, Appellant’s brief contains four pag es of quotations from State’s Ex hibit 4, with Appellant’s words in italics and Castañon’s words in bold. Thus, the brief adequa

tely identifies the specific statements that wer e purportedly admitted in err or. This portion of the brie f also cites se vera l statutes and ca ses, and applies t he cited authority to the fac ts of the case . See Swearingen v. State , 101 S.W .3d 89, 100 (Tex.Crim.App. 2003)(holding that

a brief was inadequa te beca use it failed to apply the law to the fac ts). Although the brief should have addre ssed whether t he recording depicts a custodial interrog ation, it is not so defic ient that it fails to preser ve Appe llant’s arg uments. Appellant’s Statements State’s Ex hibit 4 depicts Appellant’s perf ormance on the field sobriety tests. Appellant’s brief cites the following colloquy betwee n Offic er Castañon and Appellant, which beg ins during the final test. Appellant: I s there a

ny way -- I mean, c an I

--Offic er: Can y ou what?

Appellant: I mean, whe n y ou’re doing this, sir -- I mean, c an I

call my brother, sir, beca use -- Offic er: No, y ou can’t m ake any phone calls rig ht now, okay ? You’re taking this test. After the t est, I told y ou m ay b e. Ok ay ? W e’ ll see how that -- we’ll see how y ou do that, okay ? So did y ou understand those instructions? Appellant: I

understand tha t, but I mean - - Offic er: Do y ou understand the instructions? Appellant: I

understand tha t, but I mean, I ’m asking , can I just -- Officer: No. I told y ou alre ady y ou can’ t make any phone calls, ok ay ? No p h o n e calls y et. I told y ou later on may be, okay ? Okay ? I need y ou to finish this test. All rig ht? Okay

. So g o ahea d. Put y our fe et tog ether and whiche ver foot y ou want to raise, y ou raise it. Whether or not it’s y our rig ht or y our l eft, raise i t six inches off the g round, point y our toe, a nd count out loud, okay

. Appellant: Do y ou know Tala vera , J oe? Offic er: I don’t know who that is. Okay ? Appellant: Do y ou know a Mike N uñez? Offic er: I don’t know who that is either. Why ? What do they matter? Okay ? So g o ahea d. You know that y ou -- g o ahea d. Start. Appellant: Can I

do it with my

rig ht foot? Offic er: Either foot, whicheve r one y ou want. You’ve g ot to keep y our hands at y our side and c ount out loud, okay ? Appellant: How much time? Ten? Five? Offic er: No, until Itell y ou to stop. You keep c ounting until I tell y ou to stop. Appellant: No, I ’m not g oing to do that. Offic er: Why

not? Appellant: [I naudible].Offic er: All right. You’re not even c ounting. Ar e y ou -- y ou’re not able to do it?

No? Appellant: I ’m try ing to. I mean - - Offic er: You’ re not e ven starting to count or any thing, y ou know. Appellant: No, y ou know what - - [inaudible]

. Offic er: You c an’t do it? Appellant: You know what? That’s why I ’m asking y ou. I mean -- all I ’m asking y ou is, I mean - - I

-- Offic er: Okay

. L ook. I need y ou to -- I n ee d y o u t o t u rn around, fac e awa y . I ’m placing y ou under a

rre st for driving while intox icated, oka y ? Appellant: Ah, man. Offic er: Give me y our other ha nd. Step over he re in fr ont of the unit. Appellant: Can I

call him? Offic er: You know what? May be once we g et to the station. We’ll see. Appellant: I

mean, I know -- I ’m a c op. After Offic er Casta

ñon advised Appe llant of his rig hts, the following c olloquy occur red: Offic er: Why

are y ou ref

using to g ive bre ath, man?

. . . Appellant: B eca

use I ’m a c op. Offic er: B eca

use y ou’re a cop? Appellant: [I naudible]. Offic er: You’ re not a

cop, man. Appellant: Yes, I

am. Offic er: All rig ht. Sit tight, man.Appellant: [I naudible].

Offic er: What do y ou want? Appellant: I

mean, c an I

use the re stroom at least? Offic er: We’ll see once w e g et down to the station. Appellant: [I naudible]. Offic er: Rig ht now? We c an’t. Where a m I g oing to take y ou? Out in the middle of the de sert? No. You have to wait until y ou g et to a re st room. Article 3 8

. 2 2 of the Texas Code of Criminal Procedur e prohibits the admission of an

acc used’s statement re sulting fr om a custodial interr og ation unless the ac cused was advised of his Miranda rig hts and voluntarily waived those rig hts. T E X .C O D E C R I M .P R O C .AN N
. art. 38.22, §§ 2(a) , 3(a) (2)( West 2005); see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct

. 1602, 16 L .Ed.2d 694 (1966);

see also Herrera v. State , 241 S.W .3d 520, 526 (Tex.Crim.App. 2007)(“ Our const ru ct i o n of ‘custody ’ for purposes of Article 38.22 is consistent with the meaning of ‘custody ’ for purposes of Miranda .”). The war

nings r equire d by Article 38.22 and Miranda only apply when a suspect is in custody

. Herrera , 241 S.W .3d at 526. A trial judg e’s de termination reg arding custody prese nts a mix ed question of law and fa ct, meaning that we aff

ord almost total defe renc e to the deter mination when questions of historical fac t
turn on cre dibilit y and demea nor. Id. at 5 2 6 -2 7

. I f the questions of historical fac t do not turn on

cre dibilit y and demea

nor, we re view the deter

mination de novo . Id. at 527. I n this case , the trial judge deter

mined that Appellant wa s not in custody based on c ounsel’s leg al ar g uments reg arding the undisputed fac ts. W e ther efor e re view the de termination de novo

. For purposes of Article 38.22 and Miranda , a person who is temporar ily detained pursuant
to an ordinary traff

ic stop is not “in custody .” See Berke mer v. McCarty , 468 U.S. 420, 440, 104S.Ct

. 3138, 3150, 82 L .Ed.2d 317 (1984); State v. Steve nson , 958 S.W .2d 824, 828 (Tex.Crim.App.

1997). But “the safe g uards presc ribed by Miranda become applicable as soon as a suspect’s fre edom of action is curta iled to a deg ree associate d with formal arr est.” Berke mer , 468 U.S. at 440 [i nterna l quotation marks omitted ]

. Thus, a noncustodial traff ic stop may esca late into a custodial interrog ation. Steve nson , 958 S.W .2d at 828. Appellant points o u t th a

t O f f ic e r Ca s ta ñ o n a dmitted on cross-e x amination that Appellant was in custody and was not fre e to leave for approximately an hour befor e he was advised of his rig hts.
Howeve r , O f

f ic e r Ca s ta ñon’s “unar

ticulated plan has no bear ing on the question whether [Appellant]

wa s ‘in custody ’ at a particula r time; the only rele vant inquiry is how a rea sonable man i n [Appellant’s] pos ition would have under stood his si tuation.” Berke mer , 468 U.S. at 442.
I n Berke mer , an office r saw the defe ndant’s car wea ving in and out of a lane. Id. at 423. The office r pulled the c ar ove r and asked the defe ndant t o g et out. As he g ot out of the ca r, the off icer noticed that he was having difficulty standing

. Although the office r conclude d at that point that the defe ndant would be c harg ed with a tra ffic offe nse and that he was not f ree to le ave, the office r did

not communicate this information to the defe ndant. The office r conducte d a field sobriety test and asked the defe ndant whether he had been using intox icants. After the defe ndant answ er ed aff irmatively , he was formally place d under arr est. Id. The Supreme Court held that the defe ndant was not in custody

for pur poses of Miranda until his formal a rre st. Id. at 441-42. The fac ts in Berke mer are simil ar to the fac ts here except that approximately one hour passed befor e Appellant was arr ested, wher eas in Berke mer , “[o] nly a short period of time elapse d betwee n the stop and the arr est.” Id. at 441; see also id. at 437 (“The vast majority of roadside detentions last only a few minutes.”). I n Steve nson , howeve r, an encounte r that lasted approximately one hour was held not to constitute custody

. See 958 S.W .2d at 829; see also State v. Steve nson , 993 S.W .2d 857,869 (Tex.App.--F ort Worth 1999, no p et

. )( p o i n ting out on rema nd that the defe ndant was not formally arr ested until almost an hour into the investigation).
T h is case is simil ar to Espinoza v. State , No. 08-05-00241- CR, 2007 WL 17905 9 ( T e x. A p p . - - El Paso J an. 25, 2007, n o p et

. )( n o t d esig nated for publication). I n Espinoza , as in this case , the police discovere d a driver aslee p behind the whee l with the car in park and the driver’ s foot on the brake

. 2007 WL 179059, at *1. The police knocked on the car windows and eventually woke up the driver. A strong odor of alcohol emana ted from the car . The driver was g rog g y , incoher ent, and slurred his speec h. After failing three field sobriety tests, he was arr ested. Id. Rely ing on Berke mer and Steve nson , we held that the driver was not in custody reg ardle ss of whether he was fre e to leave

or whether the office r had probable cause to arr est. Id. at *3. We likewise conclude in this case that Appellant wa s not in custody befor e his forma l arre st. Even if Appellant had been in custody , his statements did not result from an interrog ation.
For purposes of Miranda , “interr og ation” ref ers to any words or actions on the part of the police that the police should know a

re r easona

bly likely to elicit an incriminating response from the suspect.
Morris v. State , 897 S.W .2d 528, 531 (Tex.App.--El Paso 1995, no pet.), citing Rhode Island v. Innis , 446 U.S. 291, 300-301, 100 S.Ct .16 8 2 , 1 6 8 9 -90, 64 L .Ed.2d 297 (1980). Offic ers are not interrog ating a suspect when t h ey ask hi m to perf orm field sobriety tests and ins truct hi m on how

to do the tests. Id. Fr om a revie w of the colloquy quoted above, it is clea r that Appellant asked most

o f t he questions. The few questions asked by Offic er Castañon focuse d on whether Ap p el l an t understood the instructions for the test. Although he twice asked Appellant whether he was able to do the t est, these questions did not amount to an interrog ation under the circ umstances. See id. at532 (asking whether a suspect was “too intox icated to understand” did not constitute interrog ation). 1 Officer Castañon’s Statements Appellant arg ues that the a bove-quote d statements by Offic er Castañon wer e inadmis sible hear say . We apply an abuse of discretion standard when revie wing a trial court’s decision to admit evidenc e over

a hea rsay objection. Zuliani v. State , 97 S.W .3d 589, 595 (Tex.Crim.App. 2003). Appellant relies on Fischer v. State , in which the Court of Criminal Appe als held that an “off icer ’s fac tual observa tions of a DWI suspect, contempora neously dictated on h i s patrol-c ar videotape,” wer e not “admissible as a prese nt sense impression exception to the hear say rule.” 252 S.W .3d 375, 376 (Tex.Crim.App. 2008). I n Fischer , a police office r repe atedly walked awa y from the suspect to dictate his observa tions into his microphone. See id. at 377. I mmediately afte r asking the s uspect how much he had to drink, for ex ample, the office r t ol d t h e s u s p ec t “to s tay wher e he was, and

. . . walked back to his patrol car and dictate d into his microphone that [t he suspect] had ‘g lassy , bloodshot ey es’ and ‘slurre d speec h’” and “that he had smelled ‘the strong odor of alcoholic bever ag e.’” Id. The Court of Criminal Ap p ea l s h el d that “[t] his calc ulated narr ative in an ad v er s aria l setting was a ‘spea king offe nse repor

t,’” rathe r than “the ty

pe of unref

lective,

street- corne r st atement that the present sense impression ex ception to the hea rsay rule is desig ned to allow.” Id. at 376. This case is di stinguishable from Fischer

. As the State points out, most of Offic er C as tañon’s statements wer e not offe red for the truth of the matter asser ted, and thus wer e n o t hear say . See T E X
. R

. E V I D
. 801(d); see also Kirk v. State , 199 S.W .3d 467, 479 (Tex.App.--F ort

T h e d i s c u s s i o n a b o v e a p p l i e s t o t h e p a r t o f t h e e n c o u n t e r t h a t o c c u r r e d b e f o r e A p p e l l a n t w a s a r r e s t e d a n d 1

a d v i s e d o f h i s M i r a n d a r i g h t s . I n h i s b r i e f , A p p e l l a n t a l s o q u o t e s t h e c o l l o q u y t h a t o c c u r r e d a f t e r O f f i c e r C a s t a ñ o n r e a d h i m h i s r i g h t s , i n c l u d i n g t h e q u e s t i o n “ W h y a r e y o u r e f u s i n g t o g i v e b r e a t h , m a n ? ” A p p e l l a n t s t a t e s t h a t t h e r e c o r d d o e s n o t s h o w t h a t h e w a i v e d h i s M i r a n d a r i g h t s . H o w e v e r , a n e x p r e s s w a i v e r i s n o t r e q u i r e d

. J o s e p h v
. S t a t e , 3 0 9 S

. W

. 3 d 2 0 , 2 4 ( T e x . C r i m . A p p . 2 0 1 0 )

. A p p e l l a n t d o e s n o t c o n t e n d t h a t h i s s t a t e m e n t s w e r e i n v o l u n t a r y .Worth 2006, pet. ref ’d)( holding that a detec tive’s questions wer e not hear say beca use they wer e admitted to g ive context to the suspect’s replies)

. The only statements by Of fi ce r Castañon that

rese mble the statements in Fischer are his two comments that Appellant was “not even counting ”

or “not ev en s t ar t i ng to count.” Unlike in Fischer , howeve r, these comments wer e not part of a
separ ate narr ation that was calc ulated to inform a future fac t-finder about fac ts that wer e not alre ady obvious from the videotape. I n s t ea d , t h e comments wer e made direc tly to Appellant, as Offic er Castañon attempted to deter mine whether Appellant was g oing to be able to complete the test. They

wer e unref

lective statements, whi ch t h e p resent sense impression exception to the hear say rule allows. See F

ischer , 252 S.W .3d at 376. We overr ule I ssue One. JURY INSTRUCTION
I n I ssue Two, Ap p el l an t complains that the trial court abused its discretion in deny ing his
reque st for a jury instruction pursuant to Article 38.23 of t he Tex as C ode of Criminal Procedur e. That statute allows the jur y t o “b e instructed that if it believes, or has a rea sonable doubt,” that evidenc e was obtained illega lly , it “sha l l disreg ard any such evidenc e so obtained.” T E X .C O D E C R I M .P R O C .AN N . art. 38.23(a ). The first step in analy

zing a claim of jury -cha

rg e err or is to deter

mine whether there actua lly

was err or in the char g e. Barrios v. State , 283 S.W .3d 348, 350 (Tex.Crim.App. 2009). An Article 38.23 instruction is appropr iate only if there is a dispute about a specific issue of fact. Madden v. State , 242 S.W .3d 504, 509-10 (Tex.Crim.App. 2007). “I f there is no disputed fac tual issue, the leg ality of the c onduct is determined by the trial judg e alone , as a que stion of law.” Id. at 510. Appellant appar ently believes that there was a fac tual dispute as to whether he was in custody during his encounte r with Offic er Castañon. I n his brief, he arg ues that “the fa ct u al dispute was whether evidenc e wa s o b ta in e d th r o u g h c u s to d ial interrog ation of Appellant without Appellant beingMirandized .” He notes that the trial court “admitted evidenc e based on the State’s contention that

Appellant was not in custody

. As such, a fac t question was raised as to the underly ing leg ality of the custodial interrog ation

. . . .” Appellant does not identify any d i s p u te about the historical fac ts und er l y i ng his encounte r with the office rs; his complaint rela tes to the leg al signific ance of those fac ts. Be cause Appellant is r aising a leg al, rathe r than a fac tual, dispute, he was not e ntitled to the Article 38.23 instruction. See Mbugua v. State , 312 S.W .3d 657, 669-70 (Tex.App.--Houston [1st Dist.] 2009, pet. ref

’d)( “A jury may not be instructed under article 38.23(a) to deter mine whether a
person is ‘in custody ’ beca use such an instruction require s the jury to resolve an issue of law, not of fac t.”). We over

rule I ssue Two. JURY AR GU MENT
I n I ssue Three , Appellant arg ues that the State made three improper closing arg uments. First, the prosec utor stated, “When somebody g ets behind a vehicle that weig hs two tons and they g et on the road -- even when there ’s no alcohol involved, there are a lot of fata lities that are involved when there ’s a car acc ident.” Second, the prosec utor stated, “You have the rig ht to know that y ou can take
y our child to the hospital at 1:30 in the morning , driving on 54, and g etting off on the Gatew ay and know t hat s omeone else isn’t just g oing to drive right int o y ou . . . when driving d o wn the road.” Third, the prose cutor stated, “ You have the rig ht . . . to go to the pha rmac y , to visit y our re latives,

to leave town on vacation o r to head to the airport without having to worry that someone else is
g oing to pr od into y our vehic le at 1:30 in the m orning .” Appellant conte nds that these stateme nts introduced f

acts that we re not in the re cord. Closing arg uments are g ener all y l i m i ted to a summation of the evidenc e, rea sonable deductions from the evidenc e, answe rs to the arg uments of opposing counsel, and pleas for law enfor ceme nt. W

esbrook v. State , 29 S.W .3d 103, 115 (Tex.Crim.App. 2000). I f an ar gu m entexceeds the permissible bounds of these topics, it still does not amount to reve rsible err or unless, in

light of the rec ord as a whole, the arg ument is extreme or manifestly improper, violates a mandatory statute, or injects ne w fa cts harmf ul to the defe ndant into the trial. Id. Although it is g ener ally improper to arg ue facts out side the record, statements of common knowledg e are an exception to t h i s rule. Nenno v. State , 970 S.W .2d 549, 559 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas , 4 S.W .3d 720 (Tex.Crim.App. 1999). I t is

common knowledg e that car acc idents, including those cause d by drunk drivers, can cause fata lities. See Eng lish v. State , 828 S.W .2d 33, 38 (Tex.App.--Ty ler 1991, pet. ref

’d)( “I t is common knowledg e that in this state each y ear , many people are kill ed or seriously injured i n automobile collisions as

a result of alcohol-intoxi cate d drivers

. . . . I t cannot be denied that a motor vehicle opera ted by an intox icated driver instantly become s an instrument c a p a b le o f in f li cting death or serious bodily injury

on any person, who by chanc e comes within its path.”)

. Acc ording ly , the prosec utor’s first statement was not improper

. Counsel have “wide latitude without limitation in draw ing infere nces from the evidenc e so long as the infere nces draw n are rea sonable, fair, leg itimate, a nd offe red in g ood faith.” Gaddis v. State , 753 S.W .2d 396, 398 (Tex.Crim.App. 1988). The rec ord in t h i s ca s e est ablishes that Appellant was aslee p in his vehicle, which was stopped in an oncoming traff ic lane with its eng ine running and its transmission in drive g ear . T he prosec utor’s second and third statements wer e

rea sonable deductions from this evidenc e. Cf. Porter v. State , 601 S.W .2d 721, 723 (Tex.Crim.App. [P anel Op.] 1980)(holding that statement that “people can be killed” was a rea s o n ab l e d ed u ction from evide nce tha t a fire arm wa s used). The second and third statements also constituted proper plea s for law enfor ceme nt. I n
compar ison, in another driving while intox icated case , the prosec utor asked the jury to consider “thepeople who have to trave l our highw ay s” and that “[ w] h en y o u and y our family are on these

highw ay s driving y ou can’ t help but sometimes wonder if some drunk driver is g oing to hit y ou, run

over y ou and kill y ou.” Strahan v. State , 172 Tex.Crim

. 478, 358 S.W .2d 626, 627 (Tex.Crim.App. 1962). The Court of Criminal Appea ls held th at these arg uments wer e proper pleas for law enfor ceme nt. Id. ; cf. Porter , 601 S.W .2d at 723 (holding that statement that “pe ople ca n be killed in arm ed robber ies” was proper plea for law enfor ceme nt in ag g rava ted robber y case ); Pittman v. State , 9 S.W .3d 432, 434 (Tex.App.--Ho u s to n [1 4 th D is t. ] 1 9 99, no pet.)(holding that prosec utor was making a proper plea for law enfor ceme nt when he sug g ested seven times that the defe ndant, a DWI

rec idivist , would eventua lly “kill some one”)

. We overr ule I ssue Three and aff

irm the judgme nt of the trial cour

t.
May 4, 2011 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)