Samuel Jones v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00564-CR
SAMUEL JONES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two issues, Appellant Samuel Jones appeals his conviction for
aggravated robbery with a deadly weapon, arguing that he received ineffective
assistance of counsel and that he was denied due process because two
witnesses, Don Cocanaugher and Rebecca Self, were absent from his trial. We
affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Jones was charged with committing the aggravated robbery with a deadly
weapon of Dr. Joseph Surdacki based on the events of July 23, 2006, recounted
below in our discussion of Jones’s issues.
On October 13, 2008, Jones’s counsel requested subpoenas for
Cocanaugher and Self to appear on October 16, 2008. Jones’s trial began on
October 14, 2008, and concluded on October 16, 2008, at around 10:09 a.m.,
when the jury assessed Jones’s punishment of life imprisonment and the trial
court entered judgment on the verdict.2 At 1:26 p.m. that day, the constable filed
the return of the subpoenas for Cocanaugher and Self, indicating that they could
not be served because their addresses for service were not in Denton County.
After we dismissed Jones’s appeal for want of jurisdiction, see Jones v.
State, No. 02-08-00465-CR, 2009 WL 160945, at *1 (Tex. App.—Fort Worth Jan.
22, 2009, no pet.) (mem. op., not designated for publication), the court of criminal
appeals granted Jones an out-of-time appeal. See Ex parte Jones, No. AP-
76454, 2010 WL 4679958, at *1 (Tex. Crim. App. Nov. 17, 2010) (not designated
for publication).
Jones filed a pro se notice of appeal and application for appointment of
appellate counsel. He also filed a pro se motion for new trial, alleging that his
2
The trial court also granted the State’s motion to cumulate Jones’s life
sentence, stacking it on top of the life and ninety-nine-year sentences he had
received for related convictions in Collin County.
2
trial counsel had been ineffective for not interviewing Cocanaugher and Self and
complaining that the trial court had abused its discretion by denying his motion
for continuance to obtain Cocanaugher and Self as witnesses.
Jones attached an unsworn statement to his motion for new trial, in which
he set forth his belief that Cocanaugher and Self would have corroborated his
claims and defenses and that he would not have been compelled to testify on his
own behalf at trial if they had been there, and he argued that the trial court
denied the motion for continuance “in-order to injure [his] 14th Amendment
Constitutional right to Due Process, [his] right to present witnesses in [his] behalf,
and the right to a fair and impartial trial.”3 Counsel was appointed for Jones’s
appeal, and this appeal followed.
III. Ineffective Assistance of Counsel
In his second issue, Jones argues that he was denied effective assistance
of counsel when his trial counsel failed to investigate or interview Cocanaugher
and Self on his behalf in preparation for trial, failed to ensure that they were
subpoenaed, and failed to timely file a motion for new trial and notice of appeal
after his conviction.
We overrule the last two portions of this issue because the court of criminal
appeals has already addressed them by granting Jones’s petition for an out-of-
time appeal. See Mestas v. State, 214 S.W.3d 1, 4 (Tex. Crim. App. 2007)
3
There is no indication that Jones’s motion was ever presented to the trial
court or that the trial court ruled on it. See Tex. R. App. P. 21.6.
3
(stating that the effect of granting an out-of-time appeal is that it restores the
defendant to the position he occupied immediately after the trial court signed the
judgment of conviction, putting him in the position of being able to file a timely
motion for new trial and notice of appeal); Burrus v. State, 266 S.W.3d 107, 116
(Tex. App.—Fort Worth 2008, no pet.) (stating, with regard to the court of criminal
appeals’s grant of an out-of-time appeal, that “[s]ince Burrus was returned to a
point at which she could give notice of appeal, she was also at a point where she
could file a motion for new trial.”).
With regard to the first part of his second issue, Jones argues that it is
“inconsevable [sic] to believe that an attorney would believe that the only two
witnesses who observed the offense other than the complainant and the
defendant would not have anything to add to appellant’s defense[,] especially
when appellant faced a potential life sentence.”4
A. Standard of Review
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
4
Because Jones states that regardless of when his counsel requested the
subpoenas, “the result would still be the same in that the subpoenas would have
been returned due to the witnesses[‘] addresses being outside Denton County,”
we will not address his failure-to-subpoena argument. See Tex. R. App. P. 47.1.
4
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001).
A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at
740; Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d
at 63). To overcome the presumption of reasonable professional assistance,
“any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting
Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to
5
simply infer ineffective assistance based upon unclear portions of the record.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
the appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
An appellant claiming ineffective assistance of counsel at trial must identify
the allegedly erroneous acts and omissions of counsel. Strickland, 466 U.S. at
690, 104 S. Ct. at 2066; Cooper v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort
Worth 2010, pet. ref’d). The appellate court then determines whether, in light of
all the circumstances, these identified acts or omissions were outside the wide
range of competent assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066;
Cooper, 333 S.W.3d at 867.
B. Totality of the Representation
1. The State’s Evidence
At around 2:50 p.m. on July 23, 2006, Jones carjacked Baki Sulanc at
gunpoint in a Lowe’s parking lot in Carrollton as Sulanc opened the door to his
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gold Lexus SUV. Sulanc cried out for help as he struggled with Jones. Paul
Palnau heard Sulanc and went to assist him. Jones pointed his gun at Palnau
before fleeing the scene in the gold SUV.
During Jones’s flight, the gold SUV rolled over into a ditch. Dr. Surdacki
saw the gold SUV in the ditch and stopped to offer assistance. Jones opened
the door of Dr. Surdacki’s black SUV, pointed a gun at Dr. Surdacki’s head, and
told him to get out of the vehicle. Dr. Surdacki said that he was afraid Jones was
going to shoot him, so he exited the vehicle. Jones then got into the vehicle and
fled the scene.
Around 3:10 p.m., Carrollton Police Officer Tim Adamo drove into Denton
County, saw the overturned gold SUV, and met with Dr. Surdacki and some
bystanders. Officer Adamo stated that Dr. Surdacki was emotionally shaken and
upset and told him that Jones had pointed a gun at his head and had stolen his
vehicle.
When Palnau learned about the SUV rollover, he went to find out what he
could about it for Sulanc. He arrived at the rollover scene and encountered Dr.
Surdacki, who was “extremely distraught,” shaking, trembling, and upset. Palnau
said that when he asked Dr. Surdacki if he was all right, Dr. Surdacki told him,
“He just put his gun to my head and told me to get out of the car. I thought he
was going to kill me and I wasn’t going to see my wife [again]. I thought I was
7
going to die.”5 During cross-examination, Palnau denied that Dr. Surdacki had
said anything to him about Jones trying to trick him out of his vehicle and that Dr.
Surdacki told him only that Jones had put a gun to his head and told him to get
out of the car.
A couple—Cocanaugher and Self—had pulled up in a pickup truck as
Jones drove away. Dr. Surdacki said that they were “just literally braking and
stopping as [Jones] was taking off in [Dr. Surdacki’s SUV].” Dr. Surdacki stated
that the couple told him that it looked as if he had rolled the gold SUV and Jones
had stopped to ask him if he needed help. During cross-examination by Jones’s
counsel, Officer Adamo said that he took statements from Cocanaugher and Self,
that both witnesses told him that they drove up and saw a black person get in the
car and head off, and that neither said anything about a gun.
Not long after stealing Dr. Surdacki’s SUV, Jones approached Eduardo
Jiminez’s vehicle at a truck stop in Fairview and asked Jiminez for a “jump.”
Jiminez told Jones that he did not have jumper cables, and Jones said that he
had cables. When Jiminez’s wife turned their car towards the black SUV, Jones
pointed his gun at Jiminez. Jiminez grabbed at the gun, and he and Jones
5
Jones’s trial counsel raised a hearsay objection, but the trial court allowed
Palnau’s testimony about Dr. Surdacki’s statement under the excited utterance
exception for hearsay. See Tex. R. Evid. 803(2).
8
wrestled while Jiminez yelled for his wife to take the car and leave. Jiminez’s
wife took off, and Jones ran to Christie Bundren’s eighteen-wheeler.6
Bundren testified that Jones opened the driver’s side door of the truck,
jumped in, put a gun to her head, and told her, “Drive, bitch, or I’ll kill you.”
During the five-hour ordeal that followed, Jones kept the gun pointed at
Bundren’s waist. Jones had Bundren drive him to his sister’s house while the
police chased them. Police surrounded the eighteen-wheeler while Jones
dragged Bundren into the truck’s sleeper area and used Bundren’s cell phone to
talk with SWAT team negotiators. Eventually, Jones had Bundren return to the
driver’s seat, and she resumed driving with the police still following.
The truck stopped after the police spiked its tires and shot out its radiator.
After the truck stopped, Jones pulled Bundren back into the sleeper area,
keeping the gun to her head. Bundren begged Jones not to shoot her, and then
she managed to grab the gun and jump out of the truck.
Carrollton Police Officer David Taylor dusted Sulanc’s SUV for fingerprints
and testified that Jones’s fingerprints matched the latent prints that he had found.
Officer Taylor also found a spring inside the gold SUV that was consistent with
the shape of a spring for an ammunition magazine. Denton County Deputy
Sheriff Jeff Coats processed Dr. Surdacki’s SUV and found a .380 semi-
automatic magazine that had come apart because it was missing its push spring,
6
Jiminez and his wife had gone to the truck stop to meet Bundren, his
mother-in-law.
9
as well as two or three loose bullets that fit the magazine. Collin County Deputy
Sheriff Diane Stubbs testified that she processed Bundren’s eighteen-wheeler
with Deputy Coats on July 24, 2006, where they found Dr. Surdacki’s lab coat
and State’s Exhibit 33, a .380 caliber gun, which was unloaded.
2. Jones’s Testimony
After the State rested, Jones’s counsel informed the trial court that Jones
planned to testify. Jones’s counsel and the trial court both questioned Jones
about whether he understood the consequences of his decision to testify, and
Jones told them that he did.7 Jones agreed that his counsel had informed him
that he thought Jones should not testify.8
Jones told the jury that at no point had he displayed a firearm or
threatened Dr. Surdacki. Rather, after the gold SUV rolled, Jones removed
himself from the vehicle, put the gun in his waistband, and pulled his shirt over
the gun before waving to the doctor. Jones said that instead of threatening the
doctor, he had lied to Dr. Surdacki, telling him that his child was trapped in the
7
The trial court granted the State’s oral motion in limine that neither Jones
nor his counsel should go into the sentences that Jones had received for the
related offenses committed in Collin County because those were on appeal.
Those sentences have since been affirmed. See Jones v. State, Nos. 05-07-
01234-CR, 05-07-01235-CR, 2008 WL 4881121, at *1 (Tex. App.—Dallas Nov.
13, 2008, no pet.) (not designated for publication).
8
Contrary to Jones’s allegation in the unsworn statement attached to his
pro se motion for new trial—that he felt compelled to testify on his own behalf
because Cocanaugher and Self were not available to testify—nothing in the
record indicates why Jones decided to testify.
10
SUV. While Dr. Surdacki jogged towards the gold SUV to help, Jones ran for Dr.
Surdacki’s vehicle, jumped into the vehicle, and drove off.
During cross-examination, Jones agreed that State’s Exhibit 33, the semi-
automatic gun recovered from Bundren’s truck, was his gun, and he admitted
that he had used it to steal Sulanc’s gold SUV at Lowe’s. Jones said that he had
kept the gun’s magazine in his shoe and that when he tried to take it out, he lost
control of the gold SUV and it rolled. Jones stated that he had tried to remove
the magazine from his shoe because he was getting ready to load it, intending to
use the gun on himself. The gun broke in the wreck. Jones said that Dr.
Surdacki had lied about Jones using the gun to take his vehicle, even though he
agreed that Dr. Surdacki had no motivation to lie.
Jones said that he had tried to take Jiminez’s car because he could not
restart Dr. Surdacki’s vehicle. Jones agreed that he had pulled a gun on Jiminez,
but he denied putting a gun to Bundren’s head or pointing it at her head. Jones
conceded that Bundren had seen the gun because it was in his hand and that he
had held the gun to her side. He admitted that he had told Bundren that he was
going to kill her, but he claimed that he had let her go.
3. Jones’s Motion for Continuance
At the conclusion of Jones’s testimony on October 15, Jones’s counsel
made the following request outside the jury’s presence:
[Jones’s counsel]: Okay. Mr. Jones, my client, has asked me
to have two witnesses here. This was discussed Monday of this
week. I had reviewed these two witnesses’[] statements prior to
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coming to trial today, I mean, long ago. Each statement is one
sentence. Okay? The witness—the first witness is Don N.
Cocanaugher. . . . His written statement given to the Carrollton
Police Department says—and this is about when Mr. Jones is taking
Dr. Surdacki’s car, and his statement says, “Drove up to accident
and seen black person get in SUV and speed away.” That’s it.
The next witness, I believe, is a person that was with this
Cocanaugher person. Her name is Rebecca Self . . . and her
statement says, “Drove up behind SUV and saw person get into
SUV and drive off.” And, actually, her statement is two sentences.
“The person was a black individual.”
Mr. Jones and I disagree on this. I think these witnesses are
unimportant to his case, would not add anything to his case. He
wants these witnesses here to testify. I subpoenaed them. The
subpoenas have not been returned served yet. I didn’t know we’d
get done this quickly, so I had them scheduled to show up tomorrow
at 9:00.
Mr. Jones wants me to ask you that we be allowed to recess
or have a continuance until I can see if these witnesses are going to
be subpoenaed or they’re going to be here at 9:00 tomorrow. And if
they are going to be here, if I can get them here earlier, that they be
allowed to testify either later today or at 9:00 on Thursday.
[Prosecutor]: May I, Your Honor?
THE COURT: Okay.
[Prosecutor]: Judge, my response to that is I would ask that
you deny the continuance. First of all, [Jones’s counsel] asked that
question to the officer as to those witnesses. Second of all, in light
of the Defendant’s testimony where he just admitted that he
carjacked Dr. Surdacki at the Lowe’s (sic), I think it’s moot.
[Jones’s counsel]: I’m sorry, Judge. She didn’t—he didn’t
carjack him at the Lowe’s. I’m not trying to pick nits, but I want to
make sure the record is correct. He carjacked Dr. Surdacki out on
544 in the middle of nowhere.
[Prosecutor]: Sorry. Carjacked Baki Sulanc at the Lowe’s and
the incident with Paul Palnau. In light of the Defendant’s testimony,
he said I don’t deny what happened. I don’t see how these
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witnesses are going to be important in—and I don’t see any reason
for us or for the Court to continue this case for those two witnesses
to be called, and I ask that you deny the motion for continuance.
[Jones’s counsel]: Judge, if I may explain real quickly, he
believes that they’re important because obviously his story—the
difference from Dr. Surdacki is that he did not have a weapon, and
these two witnesses don’t say anything about him having a weapon
or anything. And my opinion, based on my training and experience
as an attorney for ten years, is that they didn’t see it, but they don’t
have anything to offer the other way. You know, they can’t say, well,
I’m for certain he didn’t do that or he didn’t have a gun. That’s why I
don’t think they have anything to add to our case. But he is my
client. He’s asked me to do this. It’s a difference in our opinion of
his legal strategy.
THE COURT: Okay. As—from what you’ve read there, what
they’ve said, I think that’s in evidence from two different people, two
or three maybe, but I—your client just said it, first off, I think, didn’t
he? Plus I’m sure the—I think Dr. Surdacki said that they didn’t—all
they—all they didn’t see anything or something like that. They just
saw him drive off.
[Jones’s counsel]: And that’s another reason, Your Honor,
that I believe that—I mean, they don’t add anything to our case, but,
you know, I want to be—I want to zealously advocate for my client.
He’s asking for a continuance at this point so that I can try to
wrangle these people up here. But—I me[an], it’s my understanding
I’m allowed to do certain things, you know, obviously in
contravention of what he wants based on my—obviously, I can’t
keep him from testifying, but I can basically, you know, submit his
legal strategy. And, Judge, I just ask that the two statements be
entered for record purposes.
The trial court admitted the two witnesses’ statements for record purposes.
Cocanaugher’s statement reads, “Drove up to accident and seen [sic] black
person get in SUV and speed away.” Self’s statement reads, “Drove up behind
SUV and saw person get into SUV and drive off. Person was a black individual.”
The trial court then stated, “[a]s far as the continuance to get these people here, I
13
think their testimony in effect would already be in evidence, so I’m going to deny
the continuance.” Jones rested after the trial court denied his motion for
continuance.
4. Closing Arguments, Punishment, and the Return of the Subpoenas
During closing arguments, the State argued that the jury could consider
Jones’s other July 23 offenses for intent, motive, or identity. Jones’s counsel
responded that the State had brought the witnesses from the other offenses
because it did not believe Dr. Surdacki’s version of events and that the State
hoped the jury would find Jones guilty because he had committed the other
offenses. With regard to Cocanaugher and Self, Jones’s counsel argued,
You have two people driving up as he’s getting in the vehicle, long
flat stretch of road, and they don’t say anything about, you know, we
saw a gun or we saw him, you know, getting a—Surdacki out of the
car or anything like that. You don’t hear anything from those two
witnesses. They don’t tell the police anything about that. They say,
we seen him getting in the car and he drives off.
Well, who does that corroborate? Does that corroborate
Surdacki or does that corroborate Mr. Jones’s testimony?
[Emphasis added.]
The State responded to Jones’s counsel’s attack on Dr. Surdacki’s
credibility by recounting all of the other evidence supporting Dr. Surdacki’s
version of events. The jury took thirty-six minutes to find Jones guilty of the
offense as alleged in the indictment. The Cocanaugher and Self subpoenas
were not returned unserved until after the trial had already concluded.
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C. Analysis
After being granted an out-of-time appeal by the court of criminal appeals,
Jones filed a pro se motion for new trial in which he alleged that his trial counsel
had been ineffective for not interviewing Cocanaugher and Self and complained
that the trial court had abused its discretion by denying his motion for
continuance to obtain Cocanaugher and Self as witnesses. There is no
indication that Jones presented the motion for new trial to the trial court or
secured a ruling on it. See Tex. R. App. P. 21.6. And instead of attaching to his
motion for new trial affidavits from Cocanaugher and Self showing that they had
been available to testify at trial and what they would have testified at trial, Jones
attached his unsworn statement, which merely stated his belief that the two
witnesses would have corroborated his version of events. We therefore have no
record—beyond that created at trial—to review with regard to Jones’s arguments
about Cocanaugher and Self.
While the record contains extensive evidence supporting Jones’s
conviction, all we have with regard to Cocanaugher and Self are the following
items: (1) their statements, which Officer Adamo paraphrased during Jones’s
counsel’s cross-examination for the jury, that they drove up and saw a black
person get in the vehicle and drive away; (2) Cocanaugher and Self’s actual
statements—which correspond to Officer Adamo’s summary and which were
entered for record purposes; and (3) Dr. Surdacki’s testimony that Self and
Cocanaugher were braking and stopping their truck as Jones took off in Dr.
15
Surdacki’s vehicle and that they told him that they were under the impression that
Dr. Surdacki had rolled the gold SUV and Jones had stopped to offer help.
Further, although the record contains some of Jones’s counsel’s reasoning
for his actions with regard to Cocanaugher and Self, in that he had reviewed their
statements and thought that they would not add anything to the case because
“they don’t have anything to offer” as far as seeing or not seeing any weapons, in
his closing argument, Jones’s counsel was able to argue that Cocanaugher and
Self drove up as Jones was getting into Dr. Surdacki’s vehicle, that they did not
say anything about seeing a gun, and that their statements corroborated Jones’s
testimony because all they saw was Jones get in the vehicle and drive off. As
postulated by the State, Jones’s counsel might not have been able to make this
argument if Cocanaugher and Self had actually testified at trial. And in light of
the record before us, we cannot say that there is a reasonable probability that,
but for Jones’s counsel’s deficiency—if any—the result of the trial would have
been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Davis, 278
S.W.3d at 352; see also Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App.
2010) (noting that counsel’s failure to call witnesses at the guilt-innocence stage
is irrelevant absent a showing that such witnesses were available and that
appellant would benefit from their testimony). Therefore, we overrule the
remainder of his second issue.
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IV. Due Process
Jones argues in his first issue that he was denied due process when the
Denton County constable failed to serve subpoenas to Cocanaugher and Self.
However, Jones did not raise this issue in his motion for new trial—the only point
at which he could have raised it, as the subpoenas were not returned unserved
until after the trial had concluded. See Tex. R. App. P. 33.1; Anderson v. State,
301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (stating that due process rights may
be forfeited if not properly preserved); see also Mendez v. State, 138 S.W.3d
334, 342 (Tex. Crim. App. 2004). And even if Jones had preserved this issue for
our review, because—as discussed above—there is no showing that either
witness would have testified to something material and beneficial to Jones’s case
beyond what was presented to the jury, we cannot say that Jones was harmed.
See Harrison v. State, 187 S.W.3d 429, 433–34 (Tex. Crim. App. 2005).
Therefore, we overrule Jones’s first issue.
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V. Conclusion
Having overruled both of Jones’s issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 17, 2012
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