Ryan Rashad Merritt v. State ( 2011 )

Opinion issued March 10, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00939-CR

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Ryan Rashad Merritt, Appellant

V.

The State of Texas, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 46598

MEMORANDUM OPINION

          A jury found appellant, Ryan Rashad Merritt, guilty of the offense of arson of an insured and mortgaged vehicle,[1] and the trial court assessed his punishment at confinement for ten years and one day.  In four issues, appellant contends that the evidence is legally and factually insufficient to support his conviction, the trial court erred in admitting evidence of extraneous offenses during the guilt phase of trial, and the cumulative effect of the trial court’s errors deprived him of a fair trial. 

          We reverse and render a judgment of acquittal.

Background

Fort Bend County Fire Marshal Investigator M. Cornell testified that on December 17, 2006, he was dispatched to investigate the burning of a black GMC Yukon Denali, a sports utility vehicle (“SUV”), which had been found outside of a home.  He explained that the homeowner discovered an “abandoned vehicle,” realized it was “burned inside,” and then contacted his office.  When Cornell arrived at the scene, the SUV was in a “grass field,” but he did not see any “tire tracks, big truck tracks or anything in front of or behind” the SUV.  He also did not see anything indicating that a “wrecker” had been present. 

Cornell’s inspection revealed that the SUV had no fire damage on its outside and the front of the SUV appeared to be in good condition, “with no damage” or “indication of fire to the engine compartment.”  He found three unburned, wooden matches outside of the SUV.  Although the driver’s door had been damaged by what appeared “to be attempted forcible entry,” Cornell opined that “the damage to the top of [the] latching mechanism [was not] even open enough to allow a tool to get down in [the door] to be able to lift it up.”  When he approached the inside of the SUV, he saw that the seats, door covers, door panels, glove box, radios, and electronics had been removed. Cornell also saw “some pieces of paper” that were partially burned, and he noted that there was “no fire damage at all from the dash compartment” or the “electronics area,” which would have indicated a fire of mechanical origin.  Cornell noted “three separate areas of fire that [were] not contiguous to each other,” which indicated that the fire had separate points of origin, constituting a “red flag” that the “fire was intentionally set.”  Around each point of origin, he found “fine paper,” which he described as being “like a newspaper.” 

Cornell ruled out all accidental causes of the fire, and he opined that it was set intentionally.  He noted that there was no damage to the SUV’s steering column and its keys were not in its ignition.  Cornell then learned that the SUV had been reported stolen, and he contacted the Houston Auto Theft Task Force.  At the time that he had collected the matches from outside the SUV, Cornell was not sure if the matches were “crucial” evidence, but he explained that they would have been crucial had he been able to find a similar match or matches on a “person of interest” or if he could identify the matches and “make a connection” to the home of such a person.  Cornell opined that the fire was started by someone who had “ignited the paper products” found in the SUV, but he was unable to determine if a match, lighter, or some other item was used to ignite the paper. 

Cornell further testified that he contacted appellant, the owner of the SUV, who had reported it as stolen.  In a statement given to Cornell, appellant explained that during the evening prior to the theft of the SUV, he had parked it outside the apartment of a friend, Floyd Houston. Appellant and Houston went out for the evening, and the two “hung out at [Houston’s apartment] for four or five hours and . . . then went out to Scott’s Club and another [club] off of Cullen [Street].”  They “had been out all night just sitting in the parking lot, watching people at these bar locations and drinking.”  Appellant last saw the SUV at 6:30 p.m., when he had parked it outside Houston’s apartment. When appellant returned to Houston’s apartment around 5:00 a.m., he found that the SUV was missing, even though he was in possession of both sets of keys. 

Cornell explained that because the type of matches that he found outside of the SUV are “common,” he asked appellant if he had any wooden matches or gasoline at his apartment.  Appellant replied that he did not use wooden matches, noting that his apartment was not equipped with gas appliances.  Approximately one month after speaking with appellant, Cornell went to appellant’s apartment complex and spoke with the manager, who indicated that appellant previously had a separate lease on a garage, but he had informed her that he no longer needed it after his SUV was stolen.  The manager allowed Cornell to enter the garage, where he found “several bags of what appeared to be trash.”  Inside the bags, Cornell found a “Cartronix envelope,” “the [SUV’s] window sticker,” “receipts,” and other items that he “believed to be the contents of the glove box or the inner console” of the SUV. 

Ofelia Stevens, a Texas certified court reporter, testified that on May 9, 2007, she recorded a sworn statement of appellant regarding an insurance claim that he had made concerning the theft of his SUV.  In his statement, appellant explained how he had obtained financing for the SUV and his relationship with David Ross, a man he had met at a mall in the “mid part of 2002.”  After appellant and Ross had initially talked “about sports,” they exchanged telephone numbers, and appellant would call Ross “every once in awhile” to talk about sports and trucks.  In 2006, appellant told Ross that he was going to purchase a new SUV, but he needed a cosigner on a loan to “make a better deal.”  Ross then offered to cosign on a loan for the purchase, and he met appellant at the mall for Ross to sign appellant’s loan application.  Appellant explained that he and Ross did not go to the dealership together, but separately.  Appellant made a $6,000 down payment on the SUV, and he stayed current on the $996 monthly payments.  Using his Compass Check Card, appellant also purchased for the SUV “after-market” “24-inch rims and tires” that had a value of $4,500.  However, he paid less than $4,500 for the rims and tires because he “negotiated them down.”  Appellant noted that a few months after the purchase of the SUV, he stopped speaking with Ross because he had tried to call Ross and discovered that “his phone was disconnected.” 

David Ross testified that in about November 2007, he began receiving telephone calls from a creditor, who told him that he was behind on payments due for some tires purchased in Houston, Texas.  Ross explained that he lives in Dallas, and, although, in 2005, he came to Houston for a job interview, he did not purchase any tires in Houston.  Also, Ross noted that he had never been to a tire store in Houston.  After speaking with the creditors, Ross obtained a copy of his credit report, in which he discovered the purchase of tires and a GMC Yukon Denali that had taken place without his authorization.  He explained that at that time, the only cars that he had ever purchased were a Lexus RX 300 and a Ford Escape.  After reviewing his credit report, Ross contacted the creditors, identified himself, and informed the creditors that he had not authorized the purchases. 

Ross later obtained copies of the documentation of the purchase of the tires, and he confirmed that the purchases were made under his name and with his social security number and birth date.  The documents were signed with the name “David Ross.”  He explained, however, that he did not sign the documents or authorize anyone to sign them in his name.  Ross also obtained copies of the documentation for the purchase of the GMC Yukon Denali, and he was listed as “part owner” and a “cosigner.”  The documents contained his personal information and were signed with the name “David Ross.”  Again, however, Ross explained that the signature was not his and he did not authorize anyone to sign his name.  After the State introduced into evidence copies of these documents, along with a copy of Ross’s driver license, for a comparison of the signatures, Ross noted that there were “no similarities” between his signature on his driver license and the signatures on the tire and SUV purchase documentation. Ross further testified that he had never met appellant nor did he know appellant.  Ross explained that the creditors recommended that he “submit an affidavit” and “file a police report” about the use of his identity to make the purchases.  He stated that he filed a police report in “about the middle of December,” but he did not file or pursue any criminal charges against appellant.

          Carlos Mesa, president of Cartronix, testified that on March 27, 2006, appellant purchased “tires and rims” from his business. Appellant financed part of the purchase, which required him to complete an application process to determine whether he qualified for financing.  Mesa explained that this particular transaction was done in the name of “David Ross,” and a man presented to Mesa identification in the name of David Ross.  Mesa also testified that the keys to a GMC Yukon Denali cannot be copied, and, if copied, the copy would only unlock the doors of the SUV and not start it.  He explained that if the SUV had not been “hotwired” and the steering wheel column broken, the only way to move the SUV would have been to use a key to start it and drive it or have it towed. 

          Mike Nguyen, finance manager at Gay Pontiac, testified that in March 2006, he reviewed and approved the financing of a loan for a 2006 GMC Yukon Denali in the names of “David Ross” and “Ryan Merritt.” He explained that a man who represented himself as “David Ross,” the father of appellant, wanted to help his son purchase the SUV by cosigning the loan.  Nguyen noted that the “David Ross” present on the day of the financing was not the David Ross who had testified earlier in the trial.  He further explained that Denalis are equipped with certain security features, including a key that contains a “chip,” which prevents the SUV from being started without the key. 

Chris Walker testified that he worked at Gay Pontiac in March of 2006, and he was involved in the sale of the SUV to appellant.  He explained that appellant’s father, “David Ross,” called about the purchase of the SUV, and Walker obtained his credit information over the telephone.  Walker then had Ross come to the dealership to complete the paperwork; however, appellant did not come to the dealership with him. Approximately one and one-half of a week later, Walker met with appellant at a fast food restaurant to complete the paperwork.  Walker explained that the keys to a GMC Yukon Denali are equipped with a “theft-determining system,” meaning that the keys have a “chip” inside.  He explained that in order to get a “key cut to the ignition,” one must obtain approval through General Motors by supplying it with a copy of a social security card and driver’s license before a key code can be released to the service department to “cut a key.” 

Lana Reinecker, a branch manager at Wells Fargo Bank, testified that it made a loan in appellant’s name in the amount of $49,015.57.  She explained that on December 17, 2006, the $994.69 monthly payment due to Wells Fargo was two months in arrears.  Reinecker noted that this particular SUV was purchased with no down payment, Wells Fargo had written “the loan off at $32,671.50,” and it had suffered a loss for the value of the loan. 

Allstate Insurance Special Investigations Unit member David Thorsen testified that in January 2007, he investigated appellant’s insurance claim for potential fraud.  He explained that under the conditions of Allstate’s insurance policy, an insured agrees to cooperate in any investigation and a failure to cooperate will result in the denial of any claim.  Thorsen noted that an insured also agrees to submit to an “examination under oath,” which will be recorded by a court reporter.  After appellant had filed his insurance claim, Thorsen met with him and obtained a recorded statement.  In his statement, appellant explained that the last time that he had seen the SUV was on a Saturday night at approximately 6:30 p.m. after he had driven it to Houston’s apartment, exited it, locked it, and left it in the parking lot.  Appellant had one set of keys with him, and the other set was “safeguarded” at his house.  He stayed at Houston’s apartment until approximately 9:00 p.m. when the two left to go “drinking,” and after they had returned at approximately 5:00 or 6:00 a.m., appellant realized that his SUV was missing. Appellant called for police assistance and reported the SUV missing, and he returned to his home and watched some television.  He informed Thorsen that for a cost of “close to $5,000” he had added some rims and tires to the SUV about two weeks after he had purchased it.  In response to Thorsen’s questioning, appellant answered that he did not have any debts in collection, he did not have any information or leads or suspects as to who took his SUV, and he did not have any personal involvement with the theft of his SUV. 

In a supplemental recorded statement, appellant provided additional information concerning the keys to his SUV.  Appellant stated that “about two months” before the theft of his SUV, he had taken it to a car wash to have it “detailed,” and the keys “went missing.”  He then had his wife bring his second set of keys to the car wash, but he remained at the car wash.  “Maybe five hours” after having lost his keys, and shortly before the Sheriff’s department was to be notified that they were missing, a man approached appellant and said, “Oh, I took your keys.”  Appellant did not know from where or when the man had taken his keys or if the man was an employee of the car wash.  Thorsen explained that he had asked appellant several questions about the keys because “the biggest thing in any vehicle theft is . . . to follow the keys.”  He noted that if a SUV is stolen and there is no steering column or ignition breach, someone had to have keys to drive the SUV.  When the owner has the keys under such circumstances, “there is a problem with that.”  As part of his investigation, Thorsen inspected the SUV, and he opined that there was “forced entry” into the SUV.

Thorsen also had appellant fill out an “Affidavit of Vehicle Theft” as part of the claims process.  He explained that Allstate typically requests such an affidavit so that the statements made therein can be compared with any recorded statement to check for inconsistencies.  During his investigation, Thorsen discovered a number of inconsistencies in appellant’s statements, including those concerning the time that he had last seen the SUV; the price of and how he had paid for the after-market rims and tires; the events surrounding his missing keys at the carwash; his statement that he had made a down payment of $6,000, when he had made no down payment; his being behind on payments; the fact that the receipts for the rims and tires were found in his garage when he had said that they were in the SUV; the fact that the rims and tires were bought in the name of “David Ross,” but appellant had said that he had paid for them with a check card; and the fact that appellant had used a different address on his application to purchase the SUV than the address that he had used for the investigation.  Thorsen explained that appellant’s claim was initially denied “for noncooperation,” but the insurance company reserved its “rights for fraud.” 

Standard of Review

We review the legal sufficiency of the evidence “by considering all of the evidence in the light most favorable to the prosecution” to determine whether any “rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979).  Evidence is legally insufficient when the “only proper verdict” is acquittal.  Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982).  Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact’s finding of the essential elements of the offense beyond a reasonable doubt.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused.  Id.

We now review the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency.  Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *2–4 (Tex. App.—Houston [1st Dist.] November 10, 2010, no pet. h.). 

Sufficiency of the Evidence

          In his first issue, appellant argues that the evidence is legally insufficient to support his conviction because, although the State proved that he had a motive to burn his SUV, “it did not offer any proof, even circumstantial, that [he] set fire” to his SUV.  In his second issue, appellant argues that the evidence is factually insufficient to support his conviction because “a review and consideration of all the evidence certainly undermines any contention that a rational trier of fact could find that [appellant] intentionally or knowingly set fire” to his SUV. 

Here, appellant stood accused by indictment of committing arson by starting a fire with the intent to destroy or damage his SUV knowing that it was insured against damage or destruction or knowing that it was subject to a security interest.  See Tex. Penal Code Ann. § 28.02(a)(2)(B),(C) (Vernon Supp. 2010).  The State had the burden of proving beyond a reasonable doubt that the fire was set intentionally and appellant set the fire or was criminally responsible for setting it.  See Orr v. State, 306 S.W.3d 380, 394 (Tex. App.—Fort Worth 2010, no pet.); see also Fitts v. State, 982 S.W.2d 175, 186 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Evidence that establishes no more than motive and opportunity will not suffice to prove the corpus delicti of arson.  Fitts, 982 S.W.2d at 186.  However, evidence tending to establish the corpus delicti need not be direct, but may be circumstantial.  Penry v. State, 691 S.W.2d 636, 648 (Tex. Crim. App. 1985).

The State argues that the evidence is legally sufficient to support appellant’s conviction because the circumstantial evidence shows that appellant had a motive for committing the offense and the State provided evidence on each element of the offense.  The State asserts that “[a]ttempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt.”  See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2005).  During trial, the State did point out several inconsistencies in the statements that appellant had made.  However, the inconsistencies have no relation to the cause of the fire, appellant’s whereabouts at the time of the fire, or anything about the burning of the SUV.  The inconsistencies concern appellant’s acquisition of the SUV and, possibly, the extraneous offense of identity theft.[2]  Although the inconsistencies in his statements may be probative of his having committed the offense of identity theft, appellant was on trial for the offense of arson, and the State had the burden to prove each element of the offense beyond a reasonable doubt. 

The State did present evidence that appellant had a motive to set fire to the SUV to obtain proceeds from an insurance policy to pay off the loans and conceal his fraudulent activity in obtaining the SUV.  The State asserts that appellant’s motive constitutes circumstantial evidence that he actually committed arson.  In support of this argument, the State cites Orr.  In Orr, the court found the evidence sufficient to show that the defendant had committed the offense of arson where the defendant had a motive, was present at the time of the fire, and gave implausible explanations about the fire.  306 S.W.3d at 395.  There, the defendant went to her neighbors’ house to notify them that her house was on fire.  Id. at 397.  The neighbors called for emergency assistance, and one of the neighbors remained with the defendant.  Id.  The defendant, however, informed authorities that she had attempted to re-enter her house in an attempt to get to her wheelchair-confined husband. Id.  The neighbors’ testimony, along with the testimony of the defendant’s daughter, made the defendant’s explanation implausible because they testified that the defendant was with them the entire time of the fire and had no opportunity to return to the house.  Id.  Furthermore, the defendant and her husband had over $1 million in insurance, and, within hours of the fire, the defendant had contacted an insurance company in an attempt to recover a portion of the proceeds.  Id. at 395.  Yet, the defendant, months later, told a fire investigator that she was unaware of the insurance policies, despite the fact that she had already made claims on the policies.  Id.  Additionally, the defendant was pregnant by another man, her husband had planned to move out within the next few days, and there was evidence that her husband’s family financially supported the defendant.  Id.  Accordingly, the court concluded that the defendant not only had a motive to intentionally set fire to her house, but the evidence was also sufficient to prove that she had committed arson.  Id. at 396.  Here, in contrast, the State failed to present any evidence other than that on the issue of motive to establish that appellant set his SUV on fire. 

          Motive is a relevant factor in determining whether a defendant has committed the offense of arson; however motive, standing alone, does not constitute sufficient evidence that the defendant did commit the offense.  Guevara, 152 S.W.3d at 50; Kresbach v. State, 962 S.W.2d 728, 734 (Tex. App.—Amarillo 1998, pet. ref’d).  The State cites several cases in which motive was considered in determining whether the defendant had committed arson; however, in each of these cases, evidence of motive was accompanied by other circumstantial evidence indicative of guilt. See id. (motive, presence at scene, and fabrication of stories about fire and discovery of fire); Orr, 306 S.W.3d at 395 (motive to commit arson, presence at scene, incendiary origin of fire, and inconsistent statements).  Furthermore, in cases where motive was considered a factor evidencing a defendant’s connection to an arson, other evidence was presented linking the defendant to the scene of the crime.  See Buchanan v. State, No. 04-08-00871-CR, 2010 WL 307875,  at *4 (Tex. App.—San Antonio Jan. 27, 2010, pet. ref’d) (mem. op.) (defendant’s motive, threats, angry behavior, incendiary origin of fire, and presence before fire supported inference that defendant committed arson); Calvin v. State, No. 04-03-00121, 2004 WL 2671651, at *2 (Tex. App.—San Antonio Nov. 24, 2004, pet. ref’d) (mem. op.) (motive to commit arson combined with burns on defendant sufficient to establish defendant’s identity as arsonist); Taylor v. State, 735 S.W.2d 930, 941 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (motive to commit arson, incendiary origin, and presence at scene sufficient to support conviction).

          Here, the State presented evidence that the fire was incendiary in nature, Cornell opined that “trash” found in appellant’s garage would be commonly found in the glove box of a car, Cornell found matches at the scene, and appellant was in possession of both sets of keys to the SUV at the time that he stated it was taken from outside Houston’s apartment.  On appeal, appellant does not challenge the State’s evidence that the fire was incendiary in nature.  Therefore, we consider only whether the State presented evidence establishing appellant’s identity as the person who started the fire.

Cornell did find “several bags of what appeared to be trash” in appellant’s garage.  In the bags, Cornell found a Cartronix envelope, the SUV’s window sticker, receipts, an envelope with David Ross’s name on it, a Crown Royal bag, a “couple bottles” of Crown Royal, Sprite, a Discount Tire receipt, a Hallmark Oil and Lube Center invoice, some dealer paperwork, and a Blockbuster video receipt.  The State notes that bottles of alcohol were among the items found by Cornell and appellant had been drinking the night that his SUV was burned.  However, the State presented no evidence that the alcohol was consumed by appellant on the night of the fire.  Cornell opined that the various papers and receipts would commonly be found in a person’s car.  Although it may be common for such items to be kept in a car, it does not necessarily follow that appellant would have kept the items in his SUV before disposing of them.  A jury is free to draw reasonable inferences based on the evidence presented; however, the “trash” found in appellant’s garage simply does not connect appellant to the scene of the arson, and it does not constitute evidence that appellant set fire to his SUV. A reasonable inference that appellant committed arson cannot be drawn from the fact that Cornell found various receipts, papers, and bottles of alcohol in appellant’s garage. 

The State also asserts that among the items found in appellant’s garage were some matches, which were admitted as State’s exhibit 26.  However, after a review of the record, it is apparent that State’s exhibit 26, consists of the matches that Cornell found at the scene of the burned SUV.  The evidence bag is clearly marked as recovered on “December 17, 2006,” the day the SUV was discovered burned, “location 4114 Brynmawr.”  These matches could not have been found in appellant’s garage, as Cornell did not search appellant’s garage until over one month later, when he was given permission to do so on January 24, 2007.  There is simply nothing in the record linking these matches to appellant’s possession. This is further evidenced by Cornell’s testimony that if the matches at the scene had been linked to a “person of interest” they would have constituted “crucial” evidence.  However, no such connection was made, and Cornell testified that he was unable to determine the source of the ignition of the paper that started the fire. 

          The State also presented evidence that appellant was in possession of both sets of the keys to the SUV at the time that he said it was taken from outside Houston’s apartment, and it could not have been started without a key.  However, appellant’s possession of the keys to the SUV does not show that he was the person that set the SUV on fire.  The State notes that there is no evidence that the SUV was towed to the location where it was found, implying that the SUV must have been driven there.  Cornell did testify that he did not see any “tire tracks,” “big truck tracks,” or anything in front of or behind the SUV to indicate that a wrecker had towed the SUV to the location.  However, an examination of the photographs depicting the location where the SUV was recovered reveals that it was found in a grass field, with no tire tracks in front of the SUV or behind it.  While the State is correct that there is no evidence that the car was towed to the location by a wrecker, given that there is no evidence of any tire tracks at all, even from the SUV itself, there is also no evidence that the car was not towed to the location by a wrecker. 

Viewing the evidence in a light most favorable to the prosecution, the evidence shows that appellant had a motive to commit arson, appellant was in possession of both sets of the keys to the SUV at the time that he stated it was taken, and appellant, at one point in time, may have taken various receipts, papers, and other items out of his SUV.  We recognize that each fact need not point directly and independently to the guilt of appellant.  However, the logical force of the probative evidence, coupled with reasonable inferences, must be sufficient to support the conviction.  Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006).  Here, there is simply no evidence that appellant was the person responsible for setting his SUV on fire.  Motive alone is not sufficient to prove arson, and, motive coupled with appellant’s possession of the keys to the SUV does not show, beyond a reasonable doubt, that appellant was the person responsible for burning his SUV.  Unlike the cases in which motive was a factor to be considered in reaching the conclusion that a suspect had committed arson, here, appellant was not seen in the area shortly before or after the fire, he was not present at the scene during the fire, and he was not found in possession of any items linking him to the fire.  Our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused.  Williams, 235 S.W.3d at 750.  Although the evidence shows that someone intentionally set fire to appellant’s SUV, the evidence does not support a finding that appellant was the person who set the fire.  Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could not have found beyond a reasonable doubt that appellant committed or was complicit in committing the offense of arson.  Accordingly, we hold that the evidence is legally insufficient to support appellant’s conviction.

We sustain appellant’s first issue.

Conclusion

          Having sustained appellant’s first issue, we need not address appellant’s remaining issues.  We reverse the judgment of the trial court and render a judgment of acquittal.   

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 28.02 (Vernon Supp. 2010).  

[2]           See Tex. Penal Code Ann. § 32.51 (Vernon Supp. 2010).