Opinion
NO. 02-15-00406-CR
05-04-2017
GARY ALEXANDER APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-1332-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Gary Alexander appeals from his conviction and seventy-five-year sentence for aggravated robbery with a deadly weapon. In his first two issues, appellant contends that the trial court abused its discretion by admitting (a) evidence that the complainant had identified him in an impermissibly suggestive pretrial "one-person show-up," violating his due process rights and (b) the complainant's in-court identification of him as her assailant in violation of his Sixth Amendment right to counsel. In his remaining two issues, he challenges alleged errors in the jury charge. We affirm.
Background
On April 28, 2014, Liz Aguilar and Thania Vasquez were working at a MetroPCS Store on Loop 288 in Denton. Business was slow that day, and a customer came into the store around 5:40 p.m. Both Vasquez and Aguilar recognized the customer when he walked in because he had been in the store at least two or three times before, but neither of them knew his name. Vasquez remembered selling the man a phone during one of his previous visits. Aguilar remembered that when the customer had visited in the past, he was not alone; a woman came in with him, and the two would argue and curse at each other.
That day, the customer was wearing a short-sleeve, "cream/beige shirt with . . stripes, kind of squarish, and . . . white jeans and bright shoes," according to Aguilar, and, according to Vasquez, "white jean pants [with] a squared . . . brown-white tannish-looking . . . collared dress shirt" with short sleeves. The customer joked around with Vasquez and Aguilar, telling them he could guess what kind of car they drove by what their keys looked like; they each showed him their car keys. The customer then approached Aguilar, said he wanted to make a payment, and gave Aguilar his phone number. While Aguilar pulled up his account information, the customer was talking on the phone and walking back and forth between her register and the front door.
Because the customer kept walking back and forth and did not take out any money or a credit card to pay, Aguilar sat down at her register. The customer then walked around behind the register, pulled out what Aguilar thought at trial was a potato peeler, put the object up close to her neck, and said, "I need all the money." The man then opened the register and took all of the money out of it. He also took Aguilar's car keys. The man turned to Vasquez and told her to give him her money as well, but she told him she did not have a register on her side. Aguilar started backing away toward the front door, telling the man he was not going to take her car and telling him to give her keys back to her, but both she and the man ended up going out the front door. Vasquez locked the door and called 911.
Vasquez thought the object looked like a screwdriver and that it was "sharp." Aguilar admitted at trial that she described the object to police as a screwdriver.
In the parking lot, the man attempted to open Vasquez's car door with Aguilar's keys. When Aguilar asked the man why he was trying to open Vasquez's car door, he kept saying that he needed to get to the bus stop. Aguilar was "next to him" at that time. When he could not open Vasquez's car door, he went to the next car, which was Aguilar's.
While the man was opening Aguilar's car door and getting into the driver's side seat, Aguilar kept trying to grab her lanyard with her car keys from him. The man was having trouble getting the car to start; he tried shutting the door, but Aguilar's elbow got caught, and she was injured as she was trying to grab her lanyard. The man shut the door on her arm a "few times." He kept saying that he needed to get to the bus stop. The man grabbed Aguilar forcefully by the shoulders; she pulled him out of the car and they began grabbing each other. At some point, the man threw down Aguilar's lanyard with the car keys. He pushed Aguilar to the ground and walked away in the direction of a carwash.
In the meantime, Vasquez was watching what was happening with the man and Aguilar through the front door of the store while she was calling 911. After the man ran away, Vasquez let Aguilar back inside the store, and Aguilar began talking to the 911 operator that Vasquez had called. Aguilar could still see the man walking away; she told the operator where the man was going and what he was wearing. Vasquez then used another phone to call her boss, Patrick Koh. Both Vasquez and Aguilar saw the man go down Loop 288 away from I-35 in the direction of a nearby carwash and Wal-Mart. Aguilar saw the man take off his shirt. Underneath, he was wearing a dark blue or black "muscle shirt."
The police and Koh arrived at the store about five minutes later. Aguilar watched the store's surveillance video showing the robbery with the police.
That same night, police detained appellant at a train station that was "[f]airly close" to the store. A Denton police officer took Aguilar to the train station where she identified appellant as the man who had robbed her. Appellant was "sitting down handcuffed on the curb" and was wearing the same items of clothing she saw on the customer who had robbed her. After Aguilar identified appellant, the police took her back to the store where she gave them a written statement.
Appellant was charged with aggravated robbery. At his jury trial, both Vasquez and Aguilar identified appellant as the customer who came into the store and robbed Aguilar. Additionally, Aguilar testified about identifying appellant at the train station after the robbery. The jury convicted appellant of aggravated robbery and made an affirmative deadly weapon finding. The jury also assessed appellant's punishment at seventy-five years' confinement, and the trial judge sentenced appellant accordingly.
Evidence of Pretrial Identification
In his first issue, appellant contends that the trial court erred by admitting evidence that Aguilar identified him at the train station as well as her subsequent identification of him at trial because he contends the method police used to facilitate the identification was impermissibly suggestive.
Appellant does not expressly state in his issue that he is also challenging Aguilar's in-court identification of him, but he does cite law pertaining to the admissibility of such an identification after an impermissibly suggestive pretrial identification procedure, and he argues that any subsequent identification of him was "tainted" by the impermissibly suggestive procedure. Therefore, this part of his complaint appears to be fairly included in the issue raised. See Tex. R. App. P. 38.1(f); Mendoza v. State, Nos. 02-10-00047-CR, 02-10-00048-CR, 02-10-00049-CR, 2010 WL 5621447, at *3 n.3 (Tex. App.—Fort Worth Dec. 30, 2010, no pet.) (mem. op., not designated for publication).
A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176 (1996). Although "one man showups" have been "widely condemned," nevertheless, such a procedure may not violate due process, depending on the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 198-201, 93 S. Ct. 375, 382-83 (1972); Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 1972 (1967); Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh'g); Knott v. State, No. 08-14-00235-CR, 2017 WL 542024, at *4-5 (Tex. App.—El Paso Feb. 10, 2017, pet. filed).
In determining the admissibility of an in-court identification, we engage in a two-step inquiry: we ask (1) whether the pretrial identification procedure was so impermissibly suggestive that (2) it resulted in a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001). The defendant has the burden to show by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive and that the in-court identification is unreliable. Barley, 906 S.W.2d at 34.
Whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor; thus, we review the issue de novo. See Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). To assess the second prong of the inquiry—the reliability of the identification—the totality of the circumstances surrounding an impermissibly suggestive procedure should be evaluated against a nonexclusive list of factors: (1) the witness's opportunity to observe the defendant during the crime; (2) the witness's degree of attention during that observation; (3) the accuracy of the witness's prior physical description; (4) the witness's degree of certainty when viewing a defendant; (5) and the amount of time between the offense and the identification of the accused. Id. at 772.
Reliability of the in-court identification is the "linchpin" of the analysis. Id. For this reason, even if the pretrial identification procedure was impermissibly suggestive, the identification testimony may still be admissible, such as if the witness's prior observation of the accused is sufficient to be an independent origin of the in-court identification. See Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1131 (1985); Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983); Knott, 2017 WL 542024, at *4.
Circumstances of Identification
Before the first day of testimony, appellant bench-filed a motion in limine, seeking a hearing outside the jury's presence before the State was allowed to "allude to or mention in any fashion to the [j]ury any identifications of" appellant by Aguilar or Vasquez. In the motion, appellant alleged that Aguilar's identification of him at the train station, as he was seated on a curb in handcuffs after having been detained by the police, was impermissibly suggestive. He further alleged that Aguilar and Vasquez later viewed mugshots from the Denton County Jail to see who had been charged and detained for robbery, "and then claimed to 'remember' that person as the person who committed a robbery to which they were witnesses." According to appellant, because these prior identifications were improper, any in-court identification of him should have also been subject to the motion in limine. The trial court held an evidentiary hearing on the motion outside the jury's presence before the State made its opening statement.
Appellant does not argue on appeal that this viewing of his mugshot caused an impermissible identification of him at trial. See Tex. R. App. P. 33.1(a)(1); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
At the hearing, appellant's counsel stated,
Your Honor, with regards to this witness, there's actually two issues. There is one that was -- there was an identification that we believe occurred that she was not able to actually identify the Defendant until after she had been taken to the MedPark Station and showed an individual who was seated on the curb and -- and was there, and secondly that she was not able to fully identify that person except that she later went . . . on the Denton City Police Department's jail web site and looked up the Defendant and -- and looked at a -- basically what we allege amounts to a single photograph line-up of him, which not only included Mr. Alexander but that he had been charged with robbery and that he was currently held by the Denton City Police Department for that offense.He also said that he did not believe Aguilar could have identified appellant except for her improper identification of him at the train station.
Aguilar testified at the hearing that she had worked at the same store for four years. She said that appellant came into the store on April 28, 2014, wearing a cream or beige shirt with stripes and white jeans and bright shoes. She recognized him because he was a regular customer who had previously come into the store at least twice to make payments and change phones. She did not know his name. Appellant usually came into the store with the same woman, an "older African-American lady." He and the woman would "always have some sort of a dispute over little things, . . . like the activating or purchase of a new device," and they would exchange "[i]nappropriate words." Aguilar remembered these conversations.
On April 28, 2014, when appellant came into the store, he gave Aguilar and Vasquez an account number to look up. Although Aguilar remembers appellant's name appearing on the screen, she did not remember what that name was. According to Aguilar, she gave the police a description of appellant after the robbery. At some point, the police asked her to go with them to look at a person who was sitting on the ground in handcuffs; she identified that person as appellant.
The next day, Aguilar went online and searched the Denton Police Department web page, where she found appellant's picture and learned his name. According to Aguilar, the picture she saw was of the man who had robbed her the previous day.
On cross-examination, Aguilar testified that she viewed the store video of the robbery before going to the train station. Once at the train station, she saw the man sitting on the curb from the inside of a police car with a camera zoomed in. The man was surrounded by police officers, and the police had "pointed out" the man as the person they had identified as a possible suspect. To the question, "Was it once you saw him on the curb that you were able to say for sure that that's the guy that robbed the store?" Aguilar answered, "Yes." Although she acknowledged that the man sitting on the curb was wearing different clothes than the man on the store video, Aguilar also testified that she saw the man take off his original shirt as he was running away from her after trying to take her car. She could see that he was wearing a dark blue-black muscle shirt underneath the beige shirt. The man she identified at the train station was also wearing the same shirt.
Aguilar testified that she made her statement to police the same day; at first, she said she could not remember if she did so before or after identifying the man at the train station, but later she testified that it was after. It was, however, about an hour and twenty minutes after the robbery and it was before the "show-up" identification at the train station. Aguilar agreed that nothing in her statement had been influenced by what she saw on the Denton Police Department's website. After reading her statement, she confirmed that she told the police that the person who robbed her was a regular customer.
Aguilar also stated on redirect that what she saw at the train station did not influence her identification and that the person she saw at the train station was the same person she saw on the video. Aguilar testified that she told the 911 operator that the man who had robbed her had taken off his original shirt and was in a dark muscle shirt.
At the conclusion of the hearing, Aguilar identified appellant in the courtroom as the person who had robbed her. She denied being influenced "in any way" by the fact that she had seen him sitting on the curb in handcuffs or saw his picture on the Denton Police Department's website. She repeatedly stated that she was able to identify appellant because of his status as a regular customer. Aguilar reiterated,
I can identify him from the four minutes to when he was in handcuffs to him being a customer. If you would have put him out with several other people, I can guarantee you I know who robbed my store. I was face to face with that person. I was injured by that person.
After Aguilar's testimony, appellant objected to the admission of any evidence that Aguilar had identified him as the person who had robbed her—either to the police or in court. See Tex. R. Evid. 103(b). The trial court overruled the objection but granted appellant a running objection.
Identification Reliable Under Totality of Circumstances
The totality of the circumstances show that even if the identification procedure used was impermissibly suggestive, it was not so impermissibly suggestive that Aguilar's in-court identification of appellant was unreliable or that there was a "very substantial likelihood of irreparable misidentification."
Aguilar averred repeatedly and unwaveringly that she recognized appellant as a prior customer, and she even remembered details about who was with him when he had previously come into the store. She had viewed the store surveillance video showing the robbery before going to the train station to make the identification. See, e.g., United States v. Monks, 774 F.2d 945, 957 (9th Cir. 1985); United States v. Evans, 484 F.2d 1178, 1186 (2d Cir. 1973) (explaining that bank surveillance film "contained the likeness not of some possible suspect in the police files, but of the man who actually committed the robbery[;] [a]s a consequence, to refresh the memory of each eyewitness from that source ran a significantly smaller risk of misidentification than to refresh it from a source unrelated to the actual events"); United States v. Ervin, 436 F.2d 1331, 1333-34 (5th Cir. 1971) (holding that allowing eyewitnesses to view part of actual photo of crime before trial was not impermissibly suggestive because "[t]he photograph did not suggest possibilities, it showed facts"). That same surveillance video was admitted and viewed by the jury. See Evans, 484 F.2d at 1186 ("Furthermore, the surveillance film was shown to the jury and they were able to make the comparison for themselves between the defendant, sitting before them in open court, and the person of the robber as caught by the eye of the surveillance camera at the time of the robbery.").
Although the robbery lasted only a few minutes, Aguilar had the opportunity to view appellant from a close vantage point for all of these minutes, including when she was trying to reach into the car for her keys and when she was physically struggling with him before he ran away. She accurately described his physical appearance and clothing, including that he had taken off his shirt and was wearing a dark muscle shirt underneath. That she underestimated his age when describing him to the police does not undermine the remainder of her description. Additionally, Aguilar identified appellant at the train station close to the time of the robbery, only about an hour and twenty minutes after it occurred.
Accordingly, we conclude and hold that the trial court did not abuse its discretion by admitting evidence of the train station identification or Aguilar's subsequent in-court identification of appellant. See Loserth, 963 S.W.2d at 772; Herrera, 682 S.W.2d at 318; Jackson, 657 S.W.2d at 130; Knott, 2017 WL 542024, at *4.
Right to Counsel
Appellant contends in his second issue that his right to counsel was violated by the identification procedure at the train station because he was not (a) advised of his right to counsel or (b) provided counsel before the procedure. Appellant did not raise this complaint in the trial court; therefore, it is not preserved for appeal. See Darcy v. State, 488 S.W.3d 325, 329 (Tex. Crim. App. 2016); Lucio v. State, 351 S.W.3d 878, 909 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2712 (2012). We overrule appellant's second issue.
Jury Charge Issues
Appellant contends in his third and fourth issues that the trial court reversibly erred in submitting two different parts of the jury charge.
Unaninimity
In appellant's third issue, he argues that the charge allowed the jury to return a nonunanimous verdict. Although appellant did not object to the charge, we review all alleged jury charge error on appeal. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
A jury must be unanimous in finding every constituent element of the charged offense in all criminal cases. Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014). In other words, every juror must agree that "the defendant committed the same, single, specific criminal act." Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Jurors, however, need not be unanimous about the specific manner and means of how an offense was committed. Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011).
A person commits the offense of aggravated robbery if he commits robbery with an aggravating factor, one of which is using or exhibiting a deadly weapon. Tex. Penal Code Ann. § 29.03 (West 2011). A person commits the offense of robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally, knowingly, or recklessly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02 (West 2011). "In the course of committing theft" is defined as "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id. § 29.01(1) (West 2011) (emphasis added).
The indictment charged that appellant:
while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause[d] bodily injury to [Aguilar], by pushing [Aguilar] with defendant's hand and by closing a door on [Aguilar's] arm, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a potato peeler, screwdriver or an object unknown to the Grand
Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury;
And . . . while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place [Aguilar] in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a potato peeler, screw driver or an object unknown to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury[.]
The charge allowed the jury to convict appellant of aggravated robbery as follows:
[I]f you find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 2014, in Denton County, Texas, the defendant, GARY ALEXANDER, did then and there, while in the course of committing theft of property owned by Patrick Koh and with intent to obtain or maintain control of said property owned by Patrick Koh, intentionally, knowingly, or recklessly caused bodily injury to [Aguilar], by pushing [Aguilar] with defendant's hand and by closing a door on [Aguilar's] arm, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a potato peeler, screwdriver or an object unknown to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury, then you will find the defendant guilty of Aggravated Robbery, as charged in the indictment.Thus, the charge was submitted in the disjunctive, allowing the jury to return a general verdict on the two alternate manner and means of robbery. See Burton v. State, 510 S.W.3d 232, 237 (Tex. App.—Fort Worth 2017, no pet.) (citing Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014)). The charge also defined "[i]n the course of committing [t]heft" as "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of [t]heft." [Footnote omitted.]
Or, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 2014, in Denton County, Texas, the defendant, GARY ALEXANDER, did then and there, while in the course of committing theft of property owned by Patrick Koh and with intent to obtain or maintain control of said property owned by Patrick Koh, intentionally or knowing[ly] threatened or placed [Aguilar] in fear of imminent bodily injury or death and the defendant did then and there use or exhibit a deadly weapon, to-wit: a potato peeler, screwdriver or an object unknown to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury, then you will find the defendant guilty of Aggravated Robbery, as charged in the indictment. [Emphasis added.]
Appellant does not complain generally that the two different manner and means of committing robbery cannot be submitted in the disjunctive. Instead, he argues that the evidence showed the commission of two distinct robbery offenses: (1) one robbery of Aguilar by threatening her with the potato peeler and taking the store money, which appellant contends was completed when he fled the store, and (2) a second robbery of Aguilar by injuring her in the attempt to steal her vehicle. Thus, appellant contends that, rather than simply charging an alternate manner and means of committing the same offense, "this jury charge allowed for a conviction if the jury believed either of the two separate, unique, criminal acts: use of the threat to obtain the money and use of force to attempt but fail to take the motor vehicle."
The indictment and charge both alleged that appellant was in the course of committing theft of property belonging to Patrick Koh. The evidence shows that Koh was the owner of the MetroPCS store and that the money belonged to him. The evidence also showed that the car belonged to Aguilar, not Koh. Thus, the theft referred to in both paragraphs of the charge is the theft of the money belonging to Koh. The evidence further shows that appellant was still in immediate flight from his taking of the money when he tried to take Aguilar's car to escape. See Tex. Penal Code Ann. §§ 29.01, 29.02, 29.03; White v. State, 671 S.W.2d 40, 41-42 (Tex. Crim. App. 1984); Oggletree v. State, 851 S.W.2d 367, 369-70 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd); see also Blue v. State, No. 14-09-00184-CR, 2010 WL 1655485, at *3 (Tex. App.—Houston [14th Dist.] Apr. 27, 2010, no pet.) (mem. op., not designated for publication) (holding that appellant was in immediate flight from stealing $100 bill when appellant fled to car, got inside car, but then after complainant approached car, got out of car and displayed gun); Valladares v. State, No. 01-98-00276-CR, 1999 WL 460067, at *1 (Tex. App.—Houston [1st Dist.] July 8, 1999, no pet.) (not designated for publication) ("Robbery includes violent conduct antecedent to a completed theft and violence accompanying an escape immediately following a completed theft.").
Even though the State may have also proved the extraneous offense of aggravated robbery of Aguilar in the course of attempting to steal her car, the jury could not have convicted appellant of aggravated robbery on the charge given based on that extraneous offense, which clearly charged the theft of only Koh's property, the money. Thus, we conclude and hold that there was no error in the charge. We overrule appellant's third issue.
Double Use of Conviction
In his fourth issue, appellant claims that the trial court allowed the State to improperly use the same enhancement conviction twice in the same prosecution. The State alleged two enhancement paragraphs in the indictment: (1) a state jail felony theft conviction in cause number F-8999879-IR (First Theft) and (2) a felony theft conviction in cause number F-0257918-KP (Second Theft). The punishment evidence showed that the sentence for the Second Theft had itself been enhanced by the First Theft. At the punishment charge hearing, appellant objected to the inclusion of the Second Theft for enhancement purposes, contending that the use of the First Theft against him twice—first to enhance the Second Theft and also to enhance this aggravated robbery—violated his due process rights under the Fourteenth Amendment and constitutes cruel and unusual punishment.
Appellant relies on this court's opinion in Ex parte Serrato, 374 S.W.3d 636, 638 (Tex. App.—Fort Worth 2012, pet. ref'd). But in that case, we were concerned with a specific part of the DWI-offense statute, penal code section 49.09(g), which provides that "[a] conviction may be used for purposes of enhancement under [that] section or enhancement under Subchapter D, Chapter 12, but not under both [that] section and Subchapter D." Tex. Penal Code Ann. § 49.09(g) (West Supp. 2016) (footnote omitted). However, this case does not involve the DWI statute, and we find no applicable counterpart to section 49.09(g) for the offense of aggravated robbery. Moreover, we held in Serrato that "[a] misdemeanor DWI conviction is a separate and distinct conviction from a felony DWI conviction, even if that felony DWI conviction included the separate misdemeanor conviction as a jurisdictional element." Serrato, 374 S.W.3d at 638-39. That same reasoning applies here even though the two enhancement allegations are felonies; they are nevertheless separate offenses. See id.; Perez v. State, 124 S.W.3d 214, 216 (Tex. App.—Fort Worth 2002, no pet.); Carroll v. State, 51 S.W.3d 797, 800-01 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) ("[A]ppellant would have this Court hold that the use of a felony conviction that was predicated on a prior misdemeanor conviction, where the same prior misdemeanor conviction is used for jurisdictional purposes in the instant case, is the equivalent of using the misdemeanor conviction twice. We decline appellant's suggested interpretation."). We overrule appellant's fourth issue.
Conclusion
Having overruled all four of appellant's issues, we affirm the trial court's judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 4, 2017