# ORIGINAL NO. PO-loll- 1$

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DANIEL GONZALES RODRIGUES Petitioner
V. THE STATE OF TEXAS 

## XOURTOFCru?.'.?-'/:! Af.Tm,q OCT 29 2015

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Petition in Cause No. 1380317/ from the 351st District Court of Harris County, Texas and the Court of Appeals for the First District of Texas, Case No. O1-13-G>0778-CR. 

## FILED IN 

# €URTOFCRIMINALAPPEALS OCT 29 2315 

## AbelAcosta,Clerk PETITION FOR DISCRETIONARY REVIEW

Daniel Gonzalez Rodriguez #1869538 C.T. Terrell Unit 1300 FM 655 Rosharon, TX 77583 Petitioner Pro SeTABLE OF CONTENTS Page Index of Authorities III Statement Reqardinq Oral Arqument 1 Statement of the Case 1-2 Statement of Procedural History 2 Grounds For Review 2 NO. 1 - WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN i PETITIONER'S CONVICTION FOR KIDNAPPING WHEN IT DEFERED TO THE TRIAL COURT'S RESOLUTION THAT THE FACTFINDER RESOLVED ANY CONFLICTS IN EVIDENCE IN FAVOR OF THE VERDICT BECAUSE THE RESOLUTION WAS NOT RATIONAL UNDER JACKSON V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793.
NO. 2
- WHETHER THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE TRIAL COURT DID NOT ABUSE jx: ITS DISCRETION BY REFUSING PETITIONER'S REOUEST FOR AN UNLAWFULL RESTRAINT INSTRUCTION. Arqument No. 1 - Suoportinq Authorities Arqument 3 4-6 

## No. 2 - Supportinq Authorities j Arqument 7 

### Prayer For Relief 8 Appendix

II.INDEX OF AUTHORITIES
Caselaw Page Alamanza v. State- 586 S.W.2d 157 (Tex.Crim.App.1985) 7 Clark v. Proeunier, 755 F.2d 394 (5th Cir.1985) 4 Cordova v. State, 698 S.W.2d 107 (Tex.Crira.App.1985) 6 Hooper v. State, 215 S.W.3d 9 (Tex.Crim.App.2007) 3,6 In re Winship, 397 U.S. 358 (1970) 4,6 Jackson v. Virginia; 443 U.S. 307 (1979) 2,3,4 Williams v. State, 235 S.W.3d 742 (Tex.Crim.App.2007) . 4 

### Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App. 1983) 4 Wooten v. State, 400 S.W.3d 601 (Tex.Crim.App.2013) 7

Constitutions and Statutes 14th Amendment U.S. Constitution 3 Texas Penal Code, §§ 20.01 & 20.02 5 Texas Penal Code, §20.03 1,5

III.NO. PD-1071-15 'IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DANIEL GONZALEZ RODx^IGUEZ Peti tioner
V. THE STATE OF TEXAS Petition in Cause No. 1380317 From the 

### 351st District Court of Harris County, Texas and the Court of Appeals for the First District of Texas, Case No. 01-13-00778.

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Daniel G. Rodriguez, petitions che Court to review tfte judge 

### ment affirming his conviction for kidnapping. (Tex. Pen. Code §20.03, West 2011).
STATEMENT REGARDING ORAL ARGUMENT Present circumstances considered, oral argument is waived.

STATEMENT OF THE CASE 

### petitioner was indicted for kidnapping. The indictment con tained two prior felony convictions for drivinq for intoxicated 

### for purpose of the enhancement of the punishment, (i CR 21). After a finding of indigency, the triai courc appointed counsel. After trial by jury. Petitioner was found guilty as charqed

1.on July 10, 2013. (1 CR 21). The jury sentenced Petitioner to 30- 

### years confinement in the Texas Department of Criminal Justice
- Institutional Division. (1 CR 51). After Petitioner filed a timely notice of appeal, (1 CR 55), 

### the trial certified Petitioner's right of appeal on July 10, 2013, (I CR 58). On Aug. 19, 2013, the trial court found Petitioner re 

### mained indiqent and appointed counsel to represent him on direct appeal. (1 CR 61).

STATEMENT OF PROCEDURAL HISTORY On July 18, 2015, the Court of Appeals for the First judi cial District of Texas, affirmed the iudqeraent of the trial court in Case No. 01-I3-00778^CR. Petitioner filed a timely motion for extension of time to file Petition for Discretionary Review, and a motion to suspend 

### rule 9.3(b) of the Texas Rules of Appellate Procedure. The Court qranted both motion on 08^-19-2015, in Case No. PD-1071-15. Peti tion for review is now due on Oct. 26* 2015.

GROUNDS FOR REVIEW NO. 1 - THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVID ENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S CONVICTION FOR KIDNAPPING WHEN IT DEFERED TO THE TRIAL COURT'S RESOLUTION THAT THE FACTFINDER RESOLVED ANY CONFLICT'S IN EVIDENCE IN FAVOR OF THE VERDICT, BECAUSE THE RE SOLUTION WAS NOT RATIONAL UNDER JACKSON V. VIRGINIA, 443 U.S. AT 326. 99 S.CT. AT 2793.
NO. 2 - THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING PETITIONER'S REOUEST FOR AN.UNLAWFULL RESTRAINT JURY INSTRUCTION.

2.ARGUMENT
•;-N0. 1-WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S CONVICTION FOR KIDNAPPING, WHEN IT DEFERED TO THE TRIAL COURT'S RESOLUTION THAT THE FACTFINDER RESOLVED ANY CONFLICTS IN EVIDENCE IN FAVOR OF THE VERDICT BECAUSE THE RESOLUTION WAS NOT RATIONAL ..UNDER JACKSON V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793. Supporting Authorities 

### The Due Process Clause of the 14th Amendment requires that every State criminal conviction be supported by evidence that a 

### rational trier of fact could accept as sufficient to prove all of the elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979). The Due Process 

### quarantee is safeguarded when an appellate court reviews the legal sufficiency of the evidence. For the purpose of a Jackson v. Virqinia analysis, jurors are permitted to draw inferences from the evidence as long as those inferences are reasonable and supported by the evidence. 

### Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App.2007). Legal sufficiency analysis does not permit verdicts based on "mere specu lation or factually unsupported inferences or presumptions." Id at 16-17. For this purpose, an inference is "a conclusion reached by considering other facts and deducting a logical consequence from them." Id at 16. Speculation is "mere theorizing or guessing about 

### the possible meaning of facts and evidence presented." A conclu sion based on speculation may appear reasonable; however, it will 

### not support a finding of guilt under Jackson v. Virginia, if it is not sufficiently supported by record facts, or evidence beyond

3.a reasonable doubt. Id. If there is an inference tha appellant is not guilty, a find ing of guilt is not a rational finding. Wilson v. State, 654 S.W.2d 

### 465 (Tex.Crim.App.1983). If the evidence equally supports both theories of a case, the evidence is insufficient, and the review ing court must entertain a reasonable doubt. Clark v. Procunier, 755 F.2d 394, 396 (5th Cri.1985). It is the appellate court's duty to ensure that the evidence presented actually supports the conclusion that the defendant committed the charged offense. Wil liams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). In Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983), the court acknowledged that although Jackson v. Virginia, 443 U.S. 307, set the standard for review of State convictions by federal courts, 

### the Due Process requirements that it announced were based express ly on the 14th Amendm^rt..They are binding on the States and con stitute a minimum'standard for sustaining a conviction. "Under In re Winship, 397 U.S. 358, 90 S.Ct. 1088 (1970), which esta blished proof beyond reasonable doubt as an essential of the 14th Amendment Due Process, it follows that when such a conviction [that was obtained even when no rational trier of fact could have found guilt beyond a reasonable doubt]., occurs in state court, it cannot constitutionally stand. Jackson v. Virginia, 443 U.S. 317-318. Argument Supported By Record Facts Petitioner asks whether the Court of Appeals has decided an important question of State or Federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States.Petitioner would argue that the Court of Appeals failed in 

### its duty to ensure that the evidence presented actually supports
a conclusion that the defendant committed the crime that was 

### charged. Here, there i® legally insufficient evidence that Peti tioner intentionally and knowlingly abducted (kidnapped) another person. Texas Penal Code §20.03. Abduct means to restrain a•person with intent to prevent his liberation by: (A) secreting of holding 

### him in a place where he is not likely to be found; or (B) using or threatening to use deadly"force. Texas Penal Code §20.01(2). Re strain means to restrict a person's movements without consent.... Texas Penal Code §20.01(1)'. In this instance, the Court of Appeals improperly found evi dence of intent to prevent liberation by secreting Jane by Con 

### cluding that Petitioner: "intended to do so by either secretion
or the use or threatended use of deadly force". The statute re 

### quires an intent to prevent liberation - not an intent to secrete or an intent to use or threatening to use deadly force. Petitioner contends the Court's Opinion is based on speculation and not the record facts. Here, the record facts support insufficient evidence 

### to support a charge under Penal Code §20.03: 1. The alleged abduction occurred inside a flea market in the morning of May 07, 2011. (4 RR 11); .-2. There were few customers at the market because of the early 

### morning hour. (5 RR 25, 34, 64, 68); 

### 3. Petitioner had been helping his friend (Jesus Gonzalez) un load wares at the market since Sept. 2010 (over -years). (5 RR 109); 4. After unloading wares, Petitioner would remain at market and 

### shop. Petitioner would allways park his pick-up in same place. (5 RR 112);
5.5. Testimony of victim reflected that Petitioner made no effort to hide his identity from her when they met earlier that morning at the Market's sign in booth. (5 RR 77-78); 6. Petitioner never left the interior grounds of flea market, signed in at flea market, and did not take child to his vehicle
or utilize exits. (5 RR 17); 7. There is no evidence in the trial record that reflects Peti tioner was using his truck in the commission of this offense or that he was attempting a getaway. ( CR & RR). In reviewing the sufficiency of the evidence, the reviewing court should look at "events occuring before, during and after the commission of the offense and may rely on action of the defendant

which show an understanding and common design to do the prohibit 

### ed act. Hooper v. State, 9, 15-16 (Tex.Crim.App.2007)-(citing Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985). The statute under which Petitioner was convicted required the State to prove that Petitioner restrained a person with intent to prevent his liberation by secretion or threat of deadly force. Here, the reviewing court merely required the State to show that 

### Petitioner "intended" to secrete or use deadly force." ( see Opinion,at page 5). Aside from the evidence showing Petitioner was holding the child's hand and walking around inside the flea market with the child, without the child's mother's permission. The child was in 

### an open publid space ^nd unharmed during the period of time she was missing. The thesis of the Court of Appeals releived the State of its burden of proving beyond a reasonable doubt of every fact 

### necessary to sonstitute the crime with which Petitioner was charged. see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1073..

6.NO. 2- WHETHER THE COURT OF APPEALS ERRED WHEN IT CON^ , ; , . J CLUDED THAT THE TRIAL COURT DID NOT ABUSE ITS J> . '. DISCRETION BY REFUSING PETITIONER'S REQUEST FOR AN UNLAWFULL RESTRAINT INSTRUCTION. Petitioner incorporates the argument and authorities from Ground No. 1, into the Ground. Supporting Authorities In Alraanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985), the court determined, when trial counsel timely requests a charqe
on a lesser-included offense and the trial court fails to give the requested charqe, reversal is required if the error results in

some harm to the accused. A harm analysis requires the appellate court to consider (1) the jury charge as a whole, (2) the argument of counsel, (3) the entirety of the evidence, and (4) such other relevant factors as may be present in the record. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App.2013). Argument Supported By Record Facts In this instance, the Court of Appeals failed to consider the entirety of the evidence and other relevant factors present in the record as previously asserted in point of error number #1. [Petitioner respectfully incorporates those same record



### facts as presented in Ground #1, in support of Ground #2].

Here, the reviewing courts evaluation of the record appears to have misconstrued and misapplied the standard for factual suf 

### ficiency of the evidende review, while overlooking some the the evidence and some of the harm. In sum, the reviewing court applied
a harsher standard of review than precedent required.-

7.Prayer 

### Petitioner prays the court holds that the State did not prove that Petitioner "secreted or used deadly force," and cannot, on the record, be infered; and that the Court of Appeals did commit
error when it failed to find that the trial court abused its dis 

### cretion by refusing Petitioner's request for an unlawfull restraint jury instruction. Respectfully submitted,

Daniel G. Rodriguez #1869583 CT. Terrell Unit 1300 FM 655 Rosharon, TX 77583 Certificate of Service 

### This is to certify that a copy of the above-entitled and numbered petition for review has been served on State's Prosecu 

### ting Attorney, P. 0. Box 13046, Capitol Station, Texas 78711, 

### via first-class U.S. Mail, on this the &lst day of Oct., 2015. 

# QcJ&rLd?/ [K&Jjiu< %*£-

8.

### Opinion issuedJuly 28, 2015

In The 

## CourtofAppeal* For The 

# jf trsit2Bt*trtctofCexa*

NO. 01-13-00778-CR 

### DANIEL GONZALEZRODRIGUEZ, Appellant 

### V. , . THE STATE OFTEXAS, Appellee 

### On Appealfrom the351stDistrictCourt Harris County, Texas Trial Court Case No. 1380317
MEMORANDUM OPINION 

# Daniel Rodriguez appeals his convictionforkidnapping.1 Intwo issues, he contends that (1)there is insufficient evidence ofintent to abduct to support the 

## jury's guilty verdict and (2)the trial court; abused its discretion by denying his
Tex. PenalCodeAnn. § 20.03 (West2011).

## request for a juryinstruction on thelesser-included offense ofunlawful restraint.' We affirm. 

### Background 

## Early one morning, seven-year-old JaneJ was playing on coin-operated "horses" with a friend at the flea market where her mother was a vendor. Jane's 

### mother testified that she was keeping an eye on the children but looked away "for 

## just a minute" while setting up her display. According to Jane, Rodriguez approached theyoung girls andoffered them quarters to activate the horses. He then asked Jane ifshe wanted to go to his house. Jane declined both offers. 

## Suddenly. RodriguezgrabbedJane'swrist. Janetestifiedthatthis "hurt" and that she was unable to escape Rodriguez's grasp. Rodriguez forced Jane toward an out-of-sightexit. Jane's mother looked back and did not see Jane. Jane's friend said that she had left with her father. Because Jane's father was not at the flea market, Jane's motherbecame alarmed and contacted security. 

## Security personnel found Rodriguez and Jane beforethey reached the exit. 

## According toJane, Rodriguez claimedthat she was hisdaughter. Anotherwitness testified thatRodriguez said that Jane's mother gave himpermissionto takeJane. Theseruses did notwork, andJanewas returned to hermother. 

### Tex. PenalCodeAm. § 20.02 (West2011). 

## Wereferto thecomplainantbythispseudonymtoprotectheridentity.

## Rodriguez was convictedofkidnapping. He timely appealed. Sufficiency ofthe Evidence 

### In his first issue, Rodriguez contends that the evidence is insufficient to support thejury's guilty verdict. A. Standard ofreview 

## We review a challenge to thesufficiency ofthe evidence under the standard announced inJackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-89 

## (1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Under the Jackson standard, evidence is insufficient to support a conviction if, 

## considering all of therecord evidence in the light mostfavorableto theverdict, no rational factfinder could have found that each essential element of the charged 

## offensewasprovenbeyondareasonabledoubt. Jackson,443 U.S. at 317-19, 99S. Ct. at 2788-89; Lasterv. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). We consider both direct and circumstantial evidence and all reasonable inferences 

## thatmay be drawn from the evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The Jackson standard defers to the factfinder to resolve any conflicts in the 

## testimony, to weigh theevidence, and to draw reasonable inferences from "basic facts to ultimate facts." Jackson, AA3 U.S. at 318, 99 S. Ct. at 2789; Clayton, 235 

## S.W.3d at 778. We presume that the factfinder resolved any conflicts in the

### evidence in favor ofthe verdict and defer to that resolution, provided that the resolution isrational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. 

### Evidence is insufficientwhen (1) the record contains no evidence, or merely a "modicum" ofevidence, probative ofan element ofthe offense, (2) the evidence 

### conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750 

## (Tex.Crim. App. 2007);seeJackson, 443 U.S. at 314-19, 99 S. Ct. at 2786-89. If 

## anappellate courtfinds theevidenceto beinsufficientunder thisstandard, it must reverse thejudgmentand enter an orderofacquittal. See Tibbsv. Florida,457 U.S. 3.1,41, 102 S.Ct. 2211,2217 (1982). i 

### B. Definition ofkidnapping 

## "A person commits [kidnapping] ifhe intentionally or knowingly abducts 

## another person." Tex. Penal Code Ann. § 20.03 (West2011) (emphasis added). "'Abduct" means to restrain a person with intent to prevent his liberation by: 

## (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force." Tex. Penal Code Ann. § 20.01(2) (West2011) (emphasis added). "'Restrain' means to restrict aperson's movements without consent. . .." Tex. Penal Code Ann. § 20.01(1). Thus, "[a] kidnapping 

## becomes a completed offense when a restraint is accomplished, and there is evidence that the actor intended to prevent liberation and that he intended to do so

## by either secretion or the use or threatened use ofdeadly force." Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995). 

### C. Evidence ofintentto preventliberation bysecretingJane 

## Rodriguez concedes that the evidence is sufficient to conclude that he restrainedJane, but he contends that the evidence is insufficientto concludethat he 

## intended to prevent her liberation and that he intended to do so by secretion or deadly force. We disagree. Jane testified that Rodriguez asked her to go to his house before grabbing her wrist and dragging her toward an exit. An eyewitness 

## saw Rodriguez "walking . . . with a purpose. ... He was walking towards the exit like he needed to go." When confronted by security, Rodriguez lied that he was Jane's father. Rodriguez told Jane that she could watch television once she was in his house. From this evidence, a reasonablejury could conclude that Rodriguez 

## intendedto prevent Jane's liberation and that heintendedto do so bysecreting her away to a location where she was unlikely to be found. SeeLaster v. State, 275 S.W.3d 512, 522-23 (Tex. Crim. App. 2009) (evidence that defendant grabbed 

## child complainant andattempted to drag her into his car was sufficient to show intentto secret away). 

## Rodriguez argues that Jane's testimony should be given no weightbecause 

## (1)hedidnotuseexitscloserto Jane'slocation, (2)hechoseanexitfarawayfrom his truck, (3) Janewas unattended, (4) aneyewitness testifiedthatJane was calm

## whenfound and reluctant to leaveRodriguez, and (5) Jane reported no wrist pain to her doctor several days later. How these factors impact the weight ofJane's testimony is for the jury to decide. Following Jackson, we presume that the jury 

## resolved the weight ofevidence infavor of theverdict, and defer to thatfinding. See Jackson, 443 U.S. at 326; 99 S. Ct. at 2793. 

### Accordingly, we overruleRodriguez's first issue. Lesser-Included Offense 

### In his second issue, Rodriguez contends that the trial court erred by denying 

## his request for a jury instruction on the lesser-included offense of unlawful restraint. A. Standard ofreview 

## "In determining if the jury should be charged on a lesseroffense, this Court 

## applies a two-step analysis." Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim. App. 2008). "First, we decide if the offense is a lesser-included offense of the 

## chargedoffense . . . ."Id. This "is aquestion oflaw," andthestandardofreview is de novo. Hall v. State,225 S.W.3d 524, 535 (Tex. Crim. App. 2007). 

## "The second prong of the test then requires an evaluation to determine whether some evidence exists that would permit a jury torationally findthat, if the 

## defendantisguilty, he isguilty only of the lesseroffense." McKinneyv. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006). "Wereview the trial court's decision

## regarding including a lesser-included offense in the jury charge for abuse of discretion." Brockv. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 

## 2009, pet. refd). "Inmakingthis determination, this Courtshouldreview all of the evidencepresented at trial."Bignallv. State, 887 S.W.2d21,23 (Tex. Crim. App. 1994). "Anythingmore than a scintilla ofevidence" that thedefendantisguilty of the lesser-included offense but not guilty ofthe charged offense "is sufficient to 

## entitle a defendant to a lesser charge."Id; seeSegundo, 270 S.W.3d at90-91. B. An ineffective getaway isnotevidence ofrestraintwithoutabduction 

## Rodriguez argues that the jury should have been allowed the option of convicting him ofunlawful restraint. A person commits the offense ofunlawful restraint "ifhe intentionally or knowingly restrains another person." Tex. Penal 

## Code Ann. §20.02(a) (West2011). Unlawfulrestraintis alesser-includedoffense 

## ofkidnapping. SeeSchweinlev. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). To be entitled to an instruction on a lesser-included offense, it is not enough 

## that the jury could havedisbelieved some portion of theevidence; rather "there must be some evidence directly germane to an unlawful restraint offense for such
an instruction to be warranted." Anderson v. State, 125 S.W.3d 729, 731 (Tex. 

## App.—Texarkana 2003, no pet.). Thus, "[t]he next step of the analysis is to determine whether there was evidence that if guilty, appellant was guilty only of 

## restraining the complainant, without intending to prevent her liberation

# by . . .secreting or holding her in a place where she was not likely to be found . . . ." Schweinle, 915 S.W.2d at 19. 

## Rodriguez arguesthathis decisiontodragJanetoward amainexit, ignoring other nearby exits thatcould have facilitated aneasier escape, is some evidence that herestrainedher but did not intend to secret her away. But this is not evidence 

### of restraint without abduction. Although Rodriguez could have chosen a more 

## efficientgetawayroute, hewasneverthelessheadingtowardanexitwithJane. This exit was not visible from Jane's original location. Rodriguez attempted to prevent 

## Jane's escapeby lyingtosecurity. There is no evidencethatRodriguezrestrained Jane without intending toprevent her liberation by removing her to a location where she was unlikely to be found. We conclude that the trial court did not abuse its discretion by refusing 

## Rodriguez'srequestforanunlawful-restraintinstruction. Accordingly, weoverrule his second issue. Conclusion 

### We affirm thejudgmentofthe trial court.
Harvey Brown Justice 

### Panel consists ofJustices Jennings, Bland, and Brown. 

## Do notpublish. Tex. R.App. P.47.2(b).