Stephen Franklin Heiman v. State ( 2020 )

Opinion issued September 1, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00968-CR
———————————
STEPHEN FRANKLIN HEIMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 81031-CR
MEMORANDUM OPINION
A jury found appellant, Stephen Franklin Heiman, guilty of the offense of
capital murder.1 Because the State did not seek the death penalty and appellant
was eighteen years or older when he committed the offense, the trial court, as
1
See TEX. PENAL CODE ANN. § 19.03(a), (b).
statutorily required, assessed appellant’s punishment at confinement for life,
without parole.2 In two issues, appellant contends that the evidence is legally
insufficient to support his conviction and the trial court erred in instructing the
jury.
We affirm.
Background
James Moore, a neighbor of the complainant, Don Weido, on Windy Shores
Drive in the Shadow Creek subdivision in Brazoria County, Texas, testified that on
the evening of January 22, 2017, he looked out his front window and noticed that a
car had backed into the complainant’s driveway and was parked diagonally, facing
the street. Moore thought this looked unusual and examined more closely the front
of the complainant’s home, which was across the street and one house over from
his own. Moore saw two individuals crouched over and walking toward the
complainant’s front door. He asked his wife to call for emergency assistance and
report that someone was trying to break into the complainant’s home. Meanwhile,
Moore went out his back door and walked to the front of his house. When he
looked over at the complainant’s house from this new vantage point, he saw that
the car was gone and the complainant’s front “door was sort of partially opened.”
2
See id. § 12.31(a)(2).
2
 Samuel Louis, another neighbor of the complainant, testified that he lived a
couple of doors down and across the street from the complainant’s home. On the
evening of January 22, 2017, while he watching television, he heard “what [he]
knew to be gunshots, approximately four gunshots.” Louis “proceeded to the back
door of [his] house going out to . . . see what this noise was and what was going
on.” His wife said she believed that the sounds had come from the front of their
home. So, Louis “went toward the front door of [his] home . . . . And at that time,
right before reaching the front door, [he] heard three more shots.” Louis decided
to go out the side door of his home into the carport area. He started to walk slowly
from behind his Ford Expedition sport utility vehicle (“SUV”) toward the front of
his house. As he “came from around” the SUV, he saw two men “bolt out of [the
complainant]’s front door.” Louis “immediately jumped back behind the [SUV],”
but not before noting that one man was about five feet, nine inches tall and the
other was about six feet tall and holding a handgun. The next thing he heard was
“tires screeching” and he saw a Ford Taurus car, “coming from the direction of the
complainant’s driveway[,] pass in front of [his] house, down the street, and then
exit[] out of the subdivision.”
After Louis watched the car leave, he asked his wife to call for emergency
assistance. He encountered Moore outside in front of his house, and they decided
to walk toward the complainant’s house. They could see that the front door to the
3
complainant’s home was open. Louis, an attorney and a former state and federal
prosecutor, cautioned that they should not go into the home because it probably
was a crime scene. They decided to walk toward the house until they reached the
middle of the street and called the complainant’s name. They “called out his name
several times but got no response.” Louis saw through the open door that the
complainant’s dog was sitting in the hall toward the back of the house.
Pearland Police Department (“PPD”) Sergeant A. Carroll testified that while
he was on patrol on the evening of January 22, 2017, he received a call about a
possible home invasion on Windy Shores Drive. When he arrived at the address,
he encountered other PPD officers in the front doorway, who told him that they
had found the complainant deceased inside the home. Carroll noticed that the front
door to the complainant’s home “looked like it had been kicked or forced open,
based on the splintering.” The window beside the front door was broken and
pierced with bullet holes. Carroll also noticed fresh damage to the hardwood floor,
which looked like a bullet had skipped across it. He saw a bullet hole that went
through the couch located in the study area to the left of the front door. The study
area looked as if there had been a struggle in it: the area was disheveled, in
contrast to the neat and tidy appearance of the rest of the house. Carroll proceeded
to the back of the house, where he found the complainant’s body lying in a
breakfast nook next to the kitchen. The complainant had been shot several times.
4
PPD Detective J. Bond testified that, among other duties as a law
enforcement officer, he monitored and accessed the Shadow Creek subdivision’s
surveillance system to “use as a tool . . . to help solve crimes.”3 Related to the
investigation of the complainant’s death, he reviewed the videotaped surveillance
recording from the night of January 22, 2017, looking for a Ford Taurus car to
match the description given by the complainant’s neighbors. On the recording, he
saw the car “traveling northbound” on Reflection Bay, “exiting the neighborhood”
at about 7:07 p.m. Bond accessed the camera view for the license-plate camera
and obtained a screenshot of the license-plate number for the car. He then traced
the car’s registration to a Jarrett Angst in Needville, Texas.
PPD Detective J. DeSpain testified that he located the Ford Taurus car at
Angst’s place of employment in Richmond, Texas. DeSpain entered the building
and spoke for about forty-five minutes with Angst, who agreed to accompany
DeSpain to PPD headquarters for an interview. DeSpain interviewed Angst for
three and a half hours, then, accompanied by PPD Detective C. Simons, drove
Angst to his home in Needville.
When they arrived at Angst’s home, Detective DeSpain spoke briefly with
Angst’s father and got permission to enter the home. PPD officers also obtained
3
Detective Bond noted that “[a]nything that involves the roadways in [the] Shadow
Creek [subdivision], [law enforcement] ha[s] the ability to look at the camera
system.”
5
and executed a search warrant at Angst’s home. Angst told one law enforcement
officer that a firearm used to kill the complainant was in his bedroom.4
Detectives DeSpain and Simons collected a pair of black shorts, a red t-shirt,
a pair of black and white Nike shoes,5 and a black holster containing “a Taurus
9-millimeter pistol with two magazines.” The officers also searched Angst’s car.
Inside the trunk, they found cardboard laid across the interior and a plastic Family
Dollar shopping bag containing a dark-colored sweatshirt and pants. The pants
were stained with what appeared to be blood near the right pocket and left knee.
Detective DeSpain left Angst’s home and returned to PPD headquarters,
where PPD Detectives E. Morton and McGuire were interviewing appellant.
McGuire left and DeSpain took his place in the interview.
The trial court admitted into evidence a videotaped recording of law
enforcement officers’ interview with appellant. In the interview, appellant
admitted that he and Angst had traveled in Angst’s car to Pearland, Texas to kill
the complainant. Upon arrival at Windy Shores Drive, appellant approached the
complainant’s home and knocked on the door. The complainant came to the door
and, after a brief exchange, appellant shot a firearm at waist level several times
4
Detective Simons testified that Angst told him that the firearm found in his
bedroom was possibly used to kill the complainant. Simons stated that he found
the firearm in Angst’s closet.
5
According to Detective Simons, Angst stated that he wore these clothes while
committing the offense.
6
through the window on the right side of front door, then shot the door handle and
kicked in the front door. At that point, appellant’s firearm either jammed or ran
out of bullets. The complainant tried to escape down the hall, but appellant caught
up to the complainant at the back door, where the complainant was struggling with
the doorknob. Appellant dropped his firearm and began punching the complainant
in the face. He grabbed the complainant’s shoulders, pulled him to the floor, and
continued to punch him. When appellant “put [his] knee into [the complainant’s]
side,” his knee became covered in blood, so appellant assumed that he must have
struck the complainant with a bullet when he was shooting through the door.
In the meantime, Angst had entered the home and found appellant and the
complainant by the back door. Appellant pinned the complainant down on the
floor as Angst shot the complainant in the head. After shooting the complainant,
appellant and Angst drove to the home of Rita Young, an acquaintance of the
appellant, and told her that “it was done.” Appellant told law enforcement officers
that Young had given him the nine-millimeter firearm that he used to kill the
complainant and he left it at the scene.
Appellant also stated that he had never met the complainant before January
22, 2017, but Young had told him that the complainant was the ex-husband of
Young’s daughter. Appellant told law enforcement officers that Young wanted
him to “take care of a problem” involving a child-custody dispute between the
7
complainant and Young’s daughter. Young gave appellant the complainant’s
address, but he could not recall the complainant’s name.
Detective DeSpain explained that after he and Detective Morton completed
appellant’s interview in the early morning hours of January 24, 2017, Morton
drove appellant to his home in Needville. The next day, when appellant returned
to PPD headquarters for more questioning, DeSpain read him his statutory rights.
During the second interview, DeSpain appellant stated that he and Angst had made
a “dry run” to the complainant’s home the night before the murder.
PPD Detective J. Page testified that he was tasked with reviewing the
videotaped surveillance recording from the Shadow Creek subdivision’s
surveillance system for the night of January 22, 2017. Page located a portion of
the recording that showed Angst’s Ford Taurus car entering the Shadow Creek
subdivision shortly before the offense occurred.
PPD Detective J. Albin, a crime scene investigator, testified that he was
charged with collecting evidence from the scene at the complainant’s house on
January 22, 2017. He recovered shell casings from the flower bed beside the front
door of the complainant’s home. He found broken pieces of tempered glass where
the windows beside the front door appeared to have been shot out. He found a
broken cylinder from the front door lock, a bent deadbolt, and a significant gouge
in the doorframe. Albin also found scuff marks in the floor where bullets had
8
penetrated the wood. In the study area by the front door, Albin found a small
round table knocked over and broken glassware on the floor. He found droplets of
blood dotting the floor, a bullet lodged in the floor, and a bullet indentation on the
baseboard. He found a hole through a sofa cushion and a bullet lodged in the
sheetrock behind the sofa.
Detective Albin also explained that he found the complainant’s body next to
the kitchen. The complainant had a bullet wound on his neck and blood was
pooling underneath his body. Albin noted additional bullet wounds on the
complainant’s torso and one on his mouth. When Albin rolled the complainant’s
body over to look at the back, he found a firearm underneath, which had been
emptied of ammunition. Near the complainant’s body, Albin collected shoe sole
impressions from the dried blood on the floor, which were found to match the tread
pattern of the tennis shoes appellant wore during the offense. Albin also confirmed
that he had collected the pants from the back of the Ford Taurus car that were later
the subject of the DNA testing.
Detective Morton testified that, related to the investigation of the
complainant’s death, he was tasked with finding appellant after Angst mentioned
appellant’s name during his interview with law enforcement officers. Morton,
accompanied by Detectives McGuire and DeSpain, traveled to appellant’s home in
9
Needville on January 23, 2017. They arrived at appellant’s home at about
11:00 p.m.
According to Detective Morton, appellant agreed to be interviewed by law
enforcement officers at PPD headquarters. As appellant walked to the officers’
patrol car, Morton noticed that appellant had what appeared to be blood on his
shoes. The officers drove appellant to PPD headquarters, where Morton and
Detective DeSpain interviewed him in the early morning hours of January 24,
2017. During the interview, appellant gave the officers his cellular telephone and
tennis shoes and provided a DNA sample on a buccal swab.
Appellant also gave law enforcement officers consent to search his cellular
telephone. A search of its contents revealed text messages among appellant,
Angst, and Young, sent before and after the complainant’s death, indicating that
the three had planned the offense together. Appellant reiterated that Young gave
him the complainant’s address.
Detective Morton testified that during appellant’s second interview with law
enforcement officers, appellant mentioned the parcel of land Young owned in
Needville, saying that he “was hoping maybe [he] could do some work for
[Young] and end up working off [the price of] her property or something like that.”
Appellant also remarked, “Even if I could do it for a year, I could get property that
would last me a lifetime, go down for generations, [that] I could hand down to my
10
family.” Appellant agreed that “[Young] was fully aware from the beginning that
[his] whole purpose was to try to work off—or work up some credit with her so
[he] could possibly work a deal with her for her property at a later date.”
Appellant told law enforcement officers that Young had told him, “If you want
compensation[,] I can give you that afterward.” Although appellant denied being
promised anything specific for killing the complainant, he also said that Young
offered to help him later because his girlfriend was pregnant.
Ashley Kibbe, a forensic scientist in the DNA section of the Texas
Department of Public Safety Crime Laboratory in Houston, testified in regard to
DNA results comparing the complainant’s blood sample with DNA extracted from
a stain on the right pocket of the pants found in the plastic bag in the back of
Angst’s car. Kibbe opined that both samples were from a single source.
E. Barnhart, M.D., the Chief Medical Examiner for Galveston, Brazoria,
Fort Bend, and Matagorda Counties, testified that she performed an autopsy on the
complainant’s body. She found the complainant’s cause of death to be homicide
by multiple gunshot wounds. The complainant’s body had eight gunshot wounds.
Five of the wounds were potentially fatal: one that passed through the brain and
exited through the back of the head; one went into the mouth and exited through
the back of the neck; and three passed through the abdomen, perforating the
intestine and lacerating the kidney.
11
Sufficiency of Evidence
In his first issue, appellant argues that the evidence is legally insufficient to
support his conviction because he lacked the intent to kill the complainant and his
statements about the possibility that his actions were “based on remuneration or the
promise of remuneration” are insufficient to support his conviction.
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 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, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. 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.
In reviewing the legal sufficiency of the evidence, we treat direct and
circumstantial evidence equally because circumstantial evidence is just as
12
probative as direct evidence in establishing the guilt of a defendant. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence
constitutes “direct proof of a secondary fact which, by logical inference,
demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684
(Tex. Crim. App. 1984). And it alone can be sufficient to establish guilt. Clayton,
235 S.W.3d at 778. Further, the “cumulative force” of all the circumstantial
evidence in a case can be sufficient to support a jury finding of guilt beyond a
reasonable doubt. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
“Intent is almost always proven by circumstantial evidence.” Trevino v. State, 228
S.W.3d 729, 736 (Tex. App.—Corpus Christi–Edinburg 2006, pet. ref’d); see also
Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the
requisite intent is not required . . . .”); Smith v. State, 56 S.W.3d 739, 745 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d).
Relevant to this case, a person commits the offense of murder if he
intentionally or knowingly causes the death of another person. TEX. PENAL CODE
ANN. § 19.02(b)(1). A person commits the offense of capital murder if he
intentionally commits murder under Texas Penal Code section 19.02(b)(1) while in
the course of committing or attempting to commit burglary. See id. § 19.03(a)(2).
A person commits the offense of burglary if he, “without the effective consent of
13
the owner,” “enters a building or habitation and commits or attempts to commit a
felony, theft, or an assault.” Id. § 30.02(a)(3).
Appellant asserts that “[t]here is no evidence before the jury [that he] went
to or entered [the complainant]’s residence with a requisite intent to murder [the
complainant].”
“In a prosecution for capital murder based on burglary, the requirement that
a felony be intended is satisfied by the murder of the victim.” Gardner v. State,
306 S.W.3d 274, 287 (Tex. Crim. App. 2009). Here, appellant admitted that while
breaking into the complainant’s home, he shot the complainant in the abdomen,
and then, after chasing the complainant down the hall, beating him, and pulling
him to the floor, he pinned the complainant down while Angst shot the
complainant in the head. Chief Medical Examiner Barnhart testified that five of
the gunshot wounds that the complainant sustained were potentially fatal, including
three that passed through the complainant’s abdomen, and caused the
complainant’s death. Viewing the evidence in the light most favorable to the
verdict, we conclude that a rational trier of fact could have determined beyond a
reasonable doubt that appellant intentionally committed murder in the course of
committing burglary.
Appellant also asserts that the evidence does not support a finding that he
“caused the death of [the complainant] for remuneration or the promise of
14
remuneration from Rita Young.” See TEX. PENAL CODE ANN. § 19.03(a)(3)
(providing person commits offense of capital murder if “the person commits the
murder for remuneration or the promise of remuneration or employs another to
commit the murder for remuneration or the promise of remuneration”). Because
sufficient evidence supports a finding that appellant intentionally committed
murder in the course of committing a burglary, we need not address appellant’s
challenge to the sufficiency of the evidence that he committed the murder in
exchange for remuneration or the promise of remuneration. See Gardner, 306
S.W.3d at 286–87; see also TEX. R. APP. P. 47.1.
We hold that the evidence is legally sufficient to support appellant’s
conviction.
We overrule appellant’s first issue.
Jury Charge
In his second issue, appellant argues that the trial court erred in instructing
the jury because the trial court, in its charge, failed to tell the jury that “it must
unanimously agree as to the alternative paragraphs alleging what element gives
raise to capital murder.”
A review of jury-charge error involves a two-step analysis. Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d
726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether error
15
actually exists in the charge, and, second, if error does exist, whether sufficient
harm resulted from the error to require reversal. Ngo, 175 S.W.3d at 743–44;
Abdnor, 871 S.W.2d at 731–32. If the defendant preserved error by timely
objecting to the charge, an appellate court will reverse if the defendant
demonstrates that he suffered some harm as a result of the error. Sakil v. State, 287
S.W.3d 23, 25–26 (Tex. Crim. App. 2009).
Here, pertinent to this appeal, the trial court instructed the jury:
. . . [I]f you believe from the evidence beyond a reasonable doubt that
[appellant], either acting alone or as a party thereto as hereinbefore
defined, in Brazoria County, Texas, on or about the 22nd day of
January, 2017, did then and there intentionally cause the death of an
individual, namely, [the complainant], by shooting [the complainant]
with a firearm, and [appellant] was then and there in the course of
committing or attempting to commit the offense of Burglary of a
Habitation owned by [the complainant];
OR
If you believe from the evidence beyond a reasonable doubt that
[appellant], either acting alone or as a party thereto as hereinbefore
defined, in Brazoria County, Texas, on or about the 22nd day of
January, 2017, did then and there intentionally or knowingly cause the
death of an individual, namely, [the complainant], by shooting [the
complainant] with a firearm, for remuneration or the promise of
remuneration from Rita Young, to wit: money from Rita Young;
OR
If you believe from the evidence beyond a reasonable doubt that
[appellant], either acting alone or as a party thereto as hereinbefore
defined, in Brazoria County, Texas, on or about the 22nd day of
January, 2017, did then and there intentionally or knowingly cause the
death of an individual, namely, [the complainant], by shooting [the
complainant] with a firearm, for remuneration or the promise of
remuneration from Rita Young, to wit: real property from Rita Young;
16
Unless you so find beyond a reasonable doubt, or if have a reasonable
doubt thereof, you will acquit [appellant] of Capital Murder and next
consider whether [appellant] is guilty of Murder.
Appellant depends on Richardson v. United States to assert that the trial
court’s charge to the jury on Texas Penal Code section 19.03(a)(2) and (a)(3)
“contain[s] elements of capital murder not merely manner and means,” and thus
permits a nonunanimous verdict. 526 U.S. 813, 817–19 (1999). According to
appellant, because Texas Penal Code section 19.03’s “subheadings (a)(2) and
(a)(3) constitute two sets of different elements,” they “require[] the State upon the
request of [appellant] to elect what theory the State would pursue in presenting the
charge to the jury.”
Richardson, the case on which appellant relies, did not involve a
capital-murder statute, but rather one for the offense of a continuing criminal
enterprise, which, the United States Supreme Court held, required the jury to
unanimously find each of the three acts in the “series of violations” that constituted
the criminal enterprise. See 526 U.S. at 817–19, 824. In contrast, in charging a
jury under the Texas-capital-murder statute, the predicate crimes are submitted in
the disjunctive. See Gamboa v. State, 296 S.W.3d 574, 583–84 (Tex. Crim. App.
2009) (disjunctive charge is permissible in capital-murder cases under “all
alternate theories of capital murder” “so long as the same victim is alleged for the
17
predicate murder”; disjunctive submission of any of alternate theories of offense
does not violate unanimity requirement).
In reviewing a disjunctive jury charge, we first consider whether the separate
application paragraphs contain different criminal acts or whether they merely
instruct as to different means of committing a single offense. See Fullenwider v.
State, 176 S.W.3d 290, 299 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). If
the disjunctive paragraphs contain different criminal acts, then the jury must be
instructed that it cannot return a guilty verdict unless it agrees unanimously that the
defendant committed one of the acts. Ngo, 175 S.W.3d at 744. If the disjunctive
paragraphs merely inform of different means of committing a single offense, the
jury must agree unanimously that the defendant committed one of the acts. Id.
Thus, if the disjunctive paragraphs merely inform the jury of different means of
committing a single offense, then the jury does not have to unanimously agree on
which alternative means the defendant used to commit the offense. Kitchens v.
State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991); see also Gardner v. State, 306
S.W.3d 274, 301–02 (Tex. Crim. App. 2009) (reaffirming Kitchens).
All three of the application paragraphs in the trial court’s charge instructed
the jury to find whether appellant “intentionally or knowingly cause[d] the death of
an individual, namely, [the complainant], by shooting [the complainant] with a
firearm.” The disjunctive language asked the jury to find whether appellant did so
18
“for remuneration or the promise of remuneration from Rita Young,” either for
remuneration or the promise of remuneration in cash or real property, or whether
appellant “was then and there in the course of committing or attempting to commit
the offense of Burglary of a Habitation owned by [the complainant].” Under each
paragraph, the jury had to find that appellant caused the complainant’s death by
shooting him with a firearm. The charge, then, required the jury to unanimously
agree to a single offense before appellant could be found guilty of the offense of
capital murder.
In a recent capital-murder case, the Texas Court of Criminal Appeals
rejected the same argument that appellant makes here. See Thomas v. State, No.
AP-77,052, 2018 WL 739093, at *23 (Tex. Crim. App. 2018) (mem. op., not
designated for publication). In doing so, the court reiterated the rule that, “[t]he
jury in a capital[-]murder case need not be unanimous about which of the
enumerated underlying felonies the defendant was in the course of committing (or
attempting to commit).” Id. (citing Gardner, 306 S.W.3d at 302); see also Luna v.
State, 268 S.W.3d 594, 601 (Tex. Crim. App. 2008) (upholding, over
jury-unanimity challenge, general verdict that defendant was guilty as charged in
indictment where indictment charged, in separate paragraphs, three alternate
theories that defendant murdered complainant while committing and attempting to
commit the offenses of burglary, robbery, and arson); Sherrill v. State, No.
19
01-07-00503-CR, 2008 WL 4670606, at *9 (Tex. App.—Houston [1st Dist.] Oct.
23, 2008, pet. ref’d) (mem. op., not designated for publication) (holding
defendant’s rights to due process and jury trial were not violated by jury charge
that did not require jury to unanimously agree on which aggravating offense—
kidnapping or aggravated assault—elevated his crime to capital murder). The
Court of Criminal Appeals in Thomas further observed that it has “applied this
holding equally to all alternate theories of capital murder in [Texas] Penal Code
Section 19.03, whether they are found in the same or different subsections, so long
as the same victim is alleged for the predicate murder.” 2018 WL 739093, at *23
(internal quotations omitted).
For these reasons, we conclude that the trial court’s charge to the jury did
not violate the unanimity requirement but properly instructed the jury to consider
the predicate crimes under the capital-murder statute as alternate manners and
means. We therefore hold that the trial court did not err in instructing the jury.
We overrule appellant’s second issue.
20
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Kelly, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
21