Case Information
*1 PD-1039-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/4/2015 3:07:22 PM Accepted 5/5/2015 9:37:30 AM ABEL ACOSTA NO. PD-1039-14 CLERK IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS JOSE GUADALUPE RODRIGUEZ ELIZONDO, APPELLANT V.
THE STATE OF TEXAS, APPELLEE ON APPEAL FROM CAUSE NO. 13-12-00028-CR IN THE THIRTEENTH COURT OF APPEALS TRIAL COURT CASE NO. CR-3485-10-I FROM THE 398 TH JUDICIAL DISTRICT OF HIDALGO COUNTY, TEXAS
The Honorable Linda R. Yañez, Presiding by Assignment BRIEF OF STATE/APPELLEE RICARDO RODRIGUEZ, JR. CRIMINAL DISTRICT ATTORNEY HIDALGO COUNTY TEXAS MICHAEL W. MORRIS, ASSISTANT State Bar No. 24076880 Lead Counsel for Appellee Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closer Blvd.
Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407 ATTORNEYS FOR THE STATE Oral argument is not requeste
ii *2 IDENTITY OF PARTIES AND COUNSEL APPELLANT in this case is Jose Guadalupe Rodriguez Elizondo. APPELLANT is represented on appeal by Hon. Brandy Wingate, 809A Savannah Ave, #481, McAllen, Texas 78503.
APPELLANT was represented at trial by Hon. Santos Maldonado, 209 E.
University Dr., Edinburg, Texas 78539.
APPELLEE in this case is the State of Texas, by and through her Criminal District Attorney for Hidalgo County, the Hon. Ricardo Rodriguez, Jr., Office of
Criminal District Attorney, Hidalgo County Courthouse, 100 N. Closner Blvd.,
Edinburg, Texas 78539.
APPELLEE is represented on appeal by Hon. Michael W. Morris, Assistant Criminal District Attorney for Hidalgo County, Hidalgo County
Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.
APPELLEE was represented at trial by Hon. Rolando Cantu, Assistant District Criminal Attorney for Hidalgo County, and Hon. Criselda Rincon-
Flores, Assistant Criminal District Attorney for Hidalgo County, Hidalgo
County Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.
ii *3 TABLE OF CONTENTS Identification of Counsel and Parties ................................................................... ii
Table of Contents ................................................................................................ iii
Index of Authorities .............................................................................................. v
Notation as to Citation ....................................................................................... vii
Statement of the Case ....................................................................................... viii
Issues Presented (Restated) ............................................................................... viii
Statement of Facts ................................................................................................. 1
Summary of the Argument ................................................................................... 1
Argument .............................................................................................................. 1
I. There was no “Second Provocation”, rather there was a
continuation of the First and as such the Thirteenth Court of Appeals did not error in its provocation analysis .................................. 2 II. The Thirteenth Court of Appeals correctly held that the Jury
Charge was either not erroneous, Appellant did not suffer the requisite level of harm to warrant reversal or had not preserved the error ................................................................................... 4 A. Second Provocation Instruction .............................................................. 5
B. Defensive Instruction Error ..................................................................... 7
C. Harm Analysis Error ............................................................................... 9
D. Cumulative error .................................................................................... 12
Prayer for Relief .................................................................................................. 13
iii
Certificate of Compliance ................................................................................... 15
Certificate of Delivery ........................................................................................ 16
iv *5 INDEX OF AUTHORITIES Cases
Almanza v. State , 686 S.W.2d 157 (Tex. Crim. App 1985) ...................... 8, 9, 11
Barrera v. State , 982 S.W2d 415 (Tex. Crim. App 1998) ....................... 8, 9, 11
Elizondo v. State ,
2014 Tex. App. LEXIS 462 (Tex. App. Corpus Christi Jan. 16, 2014) ........ 4, 11
Frank v. State , 688 S.W2d 863 (Tex. Crim. App 1985) ...................................... 8
Golston v. State ,
2012 Tex. App. LEXIS 5251 (Tex. App. Texarkana June 29, 2012) .................. 8
Johnson v. State , 23 S.W.3d 1 (Tex. Crim. App. 2000) ...................................... 3
Linney v. State , 413 S.W.3d 766 (Tex. Crim. App 2013) ................................. 13
Posey v. State , 966 S.W.2d 57 (Tex. Crim. App. 1998) .................................. 7, 8
Reynolds v. State ,
371 S.W.3d 511 (Tex. App. -- Houston [1st Dist.] 2012) ............................... 7, 8
Saxton v. State , 804 S.W.2d 910 (Tex. Crim. App. 1991) .............................. 2, 3
Riney v. State , 28 S.W.3d 561 (Tex. Crim. App. 2000) .................................... 13
Tallant v. State , 742 S.W.2d 292, 294 (Tex. Crim. App. 1987) .......................... 3
VanBrackle v. State , 179 S.W.3d 708 (Tex. App. --Austin 2005) .................... 10
Ward v. State , 829 S.W.2d 787 (Tex. Crim. App. 1992) ................................... 13
v
Westley v. Johnson , 83 F.3d 714, 726 *5 th Cir. 1996) ....................................... 13
Statutes and Rules
T EX . C ODE C RIM . P ROC . art. 14.01 (2012) .......................................................... 11
T EX . P ENAL C ODE A NN . § 9.04 (2012) .................................................................. 7
T EX . P ENAL C ODE A NN . § 9.31 (2012) .................................................................. 2
T EX . P ENAL C ODE A NN . § 9.32 (2012) ................................................................ 11
vi *7 NOTATION AS TO CITATION Citation to the record of the case below will be as follows:
1. Citation to the twenty-one volume Reporter’s Record (RR) and the one volume Supplemental Reporter’ Record (SRR) will be to volume and page, e.g., “2 RR 12” refers to page 12 of volume 2 of the Reporter’s Record.
a. Citation to State’s exhibits will be to volume and exhibit, e.g., “21 RR SX 1” refers to State’s exhibit one found within volume 21 of the Reporters Record.
b. Citation to Defense’s exhibits will be to volume and exhibit, e.g., “21 RR DX 1” refers to Defense’s exhibit one found within volume 21 of the Reporters Record.
2. Citation to the single-volume Clerk’s Record (CR) and the single volume Supplemental Clerk’s Record (SCR) will be to page only, e.g., “CR 015” refers to page 15 of the Clerk’s Record.
3. Citation to Appellant’s Brief (AB) will be to page only, e.g., “AB 6” refers to page 6 of the Appellant’s Brief.
vii *8 STATEMENT OF THE CASE The State adopts Appellant’s Statement of the Case.
ISSUES PRESENTED
The State adopts Appellant’s Issue Presented.
viii *9 STATEMENT OF FACTS With the exception of parts two and three of the Appellant’s Statement of Facts, the State adopts for purposes of this brief the Appellant’s facts as laid out
in his Statement of Facts [1] .
SUMMARY OF THE ARGUMENT Appellant did not abandon the difficulty as a matter of law, this determination was a fact issue to be determined by the Jury. The Thirteenth
Court of Appeals properly held that the mere fact that Appellant ran 70 yards
while making threats was not clear communication of an intent to abandon the
difficulty.
The alleged charge errors were either not error on the part of the trial court, or the error did not result in the necessary level of harm under Almanza to
demand reversal.
ARGUMENT
I. There was no “Second Provocation”, rather there was a continuation of the First, and as such, the Thirteenth Court of Appeals did not error in its provocation analysis.
In his first briefed issue, Appellant challenges the Court of Appeals determination that he had not abandoned the initial provocation. Appellant
contends the court of appeals erred by not applying all of the Smith [2] factors
when in analyzed the “second provocation”.
The State contends that the Court of Appeals correctly held that Appellant did not clearly abandon the initial provocation, and as such, there was not a
“second provocation.” Rather, there was, at most, change in position. The
abandonment must be clearly communicated through either words or actions.
T EX . P ENAL C ODE A NN . § 9.31(b)(4) (2012). This would necessitate both an
intention of abandonment by Appellant and such action as to allow the other
party to clearly understand that abandonment. While Appellant testified that he
was running to his truck with the sole intention of escaping the altercation, and
that he did not have any thought of getting his firearm, the jury and the Aourt of
Appeals was free to disbelieve this. 16 RR 196. The evidence does not support
Appellant’s contention that he clearly communicated his abandonment of the
difficulty. Although it does show that Appellant ran nearly 70 yards from the
*11 front of the club to his vehicle, it also shows that he was shouting threats or
words that could be taken as threats, i.e. “van a ver” [3] , and was running towards
his weapon. 15 RR 234-35. Junior further testified that he took those words to
be a threat. 15 RR 235. The evidence further acknowledges that Appellant was
aware that he was running towards his weapon. In his written statement,
Appellant stated “I ran towards my truck where I had my duty-issue H&K. I
usually take my gun with me when I’m off duty. I carry my gun in my truck and
left it in the center console.” [4] 21 RR DX 21. The jury was free to see this as
evidence that this was Appellant’s intention from the beginning. Further, the
other parties were aware that he might have had a weapon in his vehicle. 16 RR
10.
Appellant testified that he forgot that his weapon was in his vehicle. 16 RR 196, 199, 241, 17 RR 5. The jury was free to disbelieve this statement in
view of the fact that the first thing Appellant did was grab his firearm upon
reaching his vehicle. 16 RR 200. Appellant’s contention that because these
words were said after he started to flee to his truck and Junior and the others
were already in pursuit at the time, that these words could not be cause for
provoking a second confrontation at the truck is misplaced. Without clear
*12 abandonment of the initial difficulty there was no need for a “second
provocation.” The “threat” made by Appellant is evidence that Appellant failed
to clearly communicate an abandonment of the first. By yelling “[y]ou’re going
to see” after getting into a fight, Appellant is making a continuing threat, not
communicating an end to the fight. The Court of Appeal correctly held that
Appellant had not communicated an intent to abandon the difficulty and was
therefore also correct when it did not analyze the additional actions by Appellant
under the Smith factors. Without an abandonment, there was not a second
provocation. See Elizondo v. State , 2014 Tex. App. LEXIS 462 at *17 (Tex.
App. Corpus Christi Jan. 16, 2014). Appellant is incorrect in stating that the
Court of Appeals had to determine whether the factors during and after the chase
were sufficient provocation. Because the determination that Appellant did not
abandon is dispositive and precludes the need for a finding of further
provocation, Appellant’s analysis in this first issue is flawed and should be
rejected.
II. The Court of Appeals correctly applied this Court’s precedent and affirmed the conviction.
In Appellant’s second briefed issue, he contends the Court of Appeals erred in its analysis of the jury charge on self defense by way of five topics: (1)
included a provocation instruction over Appellant’s objection; (2) failing to
include an instruction on section 9.04; (3) failing to include any reference to
multiple assailants; (4) not including all the presumptions of reasonable use of
force within section 9.32 of the Penal Code; (5) provocation instruction
incorrectly directed the jury to find Appellant guilty of murder upon a finding of
provocation; and (6) cumulative error.
A. Including a Provocation Instruction As to the provocation instruction, Appellant correctly states that it should only be submitted to the jury when “there is evidence from which a rational jury
could find every element of provocation beyond a reasonable doubt.” AB 45;
Smith, 965 S.W2d 514. The elements are: (1) that the defendant did some act or
used some words which provoked the attack on him, (2) that such act or words
were reasonably calculated to provoke the attack, and (3) that the act was done
or the words were used for the purpose and with the intent that the defendant
would have a pretext for inflicting harm upon the other. Id. at 513.
Appellant incorrectly states that there was no evidence of provocation [5] . AB 45. The evidence shows that that Appellant was in an altercation with the
bouncers of Punto 3 nightclub and there was testimony that Appellant started
this altercation striking Mr. Fermin Limon. 14 RR 98-99, 15 RR 36-37, 15 RR
228-230. Further, that this lead the bouncers to attack Appellant. 14 RR 99, 15
*14 RR 230-232. Appellant then ran to his truck and retrieved his firearm. 16 RR
195-200. It is not necessary that the evidence establish a conclusive motive for
murder. Smith , 965 S.W.2d 519. It merely must give some basis for a rational
jury to find that that Appellant’s act or words were made with the intent that
Appellant would have a pretext for inflicting harm on another. Id. Because of
the heated argument and Appellant’s retrieval of a firearm, it was reasonable to
believe that there was some evidence from which a jury could find such intent.
Provocation is ultimately a question of fact rather than law; and if there is
sufficient evidence from which a rational jury could have found provocation
beyond a reasonable doubt, when viewed in favor of the provocation charge, the
charge is properly given. Id. Appellant fails to view the evidence in the light
most favorable to giving the charge.
Appellant’s error is in viewing his belief that his claimed abandonment required the issue of provocation to be resolved. Merely because Appellant
might have had a viable theory of abandonment does not preclude the
provocation instruction. Abandonment is a fact issue that needs to go before the
ultimate fact finder, the jury, for determination. Provocation was a central
portion of the State’s case. The Court of Appeals was correct in holding the
evidence supported the inclusion of a provocation instruction; any issue was a
fact issue for the jury to decide [6] .
B. Defensive instruction error In Appellant’s second and third alleged errors, he contends that the Court of Appeals erred by failing to conduct analysis of his complaints that the jury
charge failed to give a 9.04 [7] instruction or a multiple assailants instruction. AB
46. The Court of Appeals held that as each of these instructions is a defensive
issue, failure to request the instruction or object to the lack of the instruction
waived any error under Posey v. State , 966 S.W.2d 57, 62 (Tex. Crim. App.
1998). The State contends this is the correct analysis as without a request, these
instructions were not preserved.
Appellant’s reliance on Reynolds v. State , 371 S.W.3d 511 (Tex. App. -- Houston [1st Dist.] 2012), is misplaced. In Reynolds , the defendant requested
the 9.04 instruction and was denied. Id. at 522. In this case, Appellant failed to
make such a request. Under Posey , a defendant is required to request a
defensive instruction or it is deemed waived. 966 S.W.2d at 62. Additionally,
*16 Appellant would fail under harm analysis as in Reynolds , the Court held that
even though the instruction was requested, the defendant failed to prove harm.
Reynolds , 371 S.W.3d at 524-25. In Reynolds, the harm was analyzed under the
harmless error doctrine. Id. at 522 . In this case, because the instruction was not
requested, Appellant would have to show egregious harm. Almanza 686 S.W.2d
at 171. Given that the Reynolds Court held that the error was harmless the State
does not see how Appellant can meet the egregious harm standard on similar
facts.
Likewise, the multiple assailants instruction is a defensive issue that must be raised by a defendant or it is deemed waived. Posey, 966 S.W.2d at 62.
Appellant cites to Frank v. State , 688 S.W2d 863, 868 ((Tex. Crim. App 1985),
for support of this instruction. This reliance is again misplaced; in Franks , the
instruction at issue was requested. Id. In the case at bar, Appellant did not
request this defensive instruction and has therefore waived it [8] . Posey , 966
S.W.2d at 62.
Appellant alleges that by charging on self defense the Trial Court had a duty to state the law correctly. Appellant cites Barrera v. State , 982 S.W.2d
415, 416 (Tex. Crim. App. 1998) for this proposition. However, Barrerra is
*17 distinguishable as it deals primarily with the Court’s duty to correctly state the
law when giving an instruction sua sponte. Id. It does not state that when giving
a self-defense instruction, any other potentially applicable additional defensive
instructions must be included, even without a defendant’s request. Id . Appellant
would have this Court hold that by charging on the defensive issue of self-
defense the Court gains a duty to determine all additional charges that the
defendant might be entitled to or suffer reversal. This cannot be balanced
against the dictates of Posey ; that failure to request a specific instruction waives
the issue. The Court of Appeals correctly held that these instructions were
waived under Posey .
C. Harm Analysis error In his fourth and fifth claims, Appellant alleges that the Court of Appeals failed to conduct a proper harm analysis of the charge errors contained in the
presumptions charge and the provocations charge. AB 49.
Appellant also contends that the Court of Appeals erred in holding that the provocation instruction directed the jury to find him guilty as the charge stated,
“if you find there was such a design, then you will find defendant guilty of
murder,” at the end of the provocation instruction was harmless. AB 45. The
Court of Appeals was correct in holding that the charge was erroneous when it
directed the jury to find Appellant guilty if it found provocation. The Court of
Appeals was likewise correct in holding that the charge nevertheless did not
warrant reversal under the appropriate harm analysis. Because Appellant did not
object to the charge, the appropriate harm standard is egregious harm. Almanza
v. State , 686 S.W.2d 157, 171 (Tex. Crim. App 1985)
The State would first note that by its nature, a finding against Appellant on the provocation issue is a finding against him as to self-defense. Given that
Appellant testified himself that he intentionally fired his weapon at Mr. Limon [9] ,
and the testimony that Mr. Limon died as a result of those gunshots [10] , his
complicity in the death of Mr. Limon can hardly be called a contested issue.
Rather, the issue was whether he was justified in taking Mr. Limon’s life.
Further, in a claim of self-defense the defendant must admit to the crime at
issue. VanBrackle v. State , 179 S.W.3d 708, 715 (Tex. App.--Austin 2005).
Given the state of the evidence, a finding against Appellant on provocation
necessarily leads to a finding of guilt in the murder of Mr. Limon.
Appellant also complains that the Court of Appeals holding that the incomplete charge as to the presumption of reasonableness was harmless was
error. AB 49-50. Specifically, the Court of Appeals held that the charge failed
to instruct that the presumption of reasonableness also arises from the actor’s
reasonable belief that the person against whom he used force was: (1)
*19 “unlawfully and with force entered, or attempting to enter unlawfully and with
force, the actor’s occupied habitation, vehicle, or place of business or
employment”; or (2) was “unlawfully and with force remove, or attempting to
remove unlawfully and with force, the actor from the actor’s habitation, vehicle,
or place of business or employment.” Elizondo , 2014 Tex. App. LEXIS 462 at
*23; T EX . P ENAL C ODE 9.32(b)(1)(A)-(B). As Appellant did not object to this
“error” at trial, it is subject to egregious harm analysis. Barrera , 982 S.W2d at
417; Almanza , 686 S.W.2d at 171.
Appellant contends that the evidence supports the presumption because the evidence shows Appellant “knew or had reason to believe that Junior either
unlawfully, and with force, entered [Appellant]’s vehicle or removed him from
the vehicle was attempting to do so. AB 49; 15 RR 80; 15 RR 237. However,
merely banging on a truck window and telling an individual to “get off asshole”
does not constitute either the actual or attempted forceful entry or removal of
Appellant by Junior. It also does not necessarily mean it was unlawful; Rodrigo
testified that the reason they gave chase was to detain Appellant. 15 RR 39. As
the testimony was that Appellant struck Mr. Limon, under section 14.01 of the
Texas Code of Criminal Procedure, the security personnel would have been
authorized to make a citizen’s arrest for breach of peace. See T EX . C ODE C RIM .
P ROC . art. 14.01 (2012). Additionally, even without the presumptions at issue,
the jury was free to conclude that Appellant’s actions were reasonable based on
the charge a person is justified in using force against another when and to the
degree they reasonably believe the force is immediately necessary to protect
themselves against the other person's use or attempted use of unlawful force.
CR 003. Further, the State would note that the only evidence that could
reasonably support the presumption is Appellant’s testimony that he was
forcible removed from his vehicle. 16 RR 202-03. This evidence was
contradicted by several witnesses who all stated that Appellant exited his vehicle
only after Appellant’s brother grabbed Junior. 14 RR 105-06; 15 RR 238. As
Appellant did not object and the evidence does not support this presumption, the
State contends that he was not egregiously harmed. Further, given the analysis
as to the provocation and that a finding of provocation removes the issue of self-
defense, the State contends the Court of Appeals was correct in holding that
Appellant did not suffer egregious harm.
D. Cumulative error Finally Appellant claims that the charge as a whole was a garbled mess.
The State would construe this to be a claim that the errors contained in the
charge are cumulative error, in that even if each individual error did not rise to
the level warranting reversal, the charge as a whole does. AB . However,
Appellant did not raise cumulative error before the Thirteenth Court of Appeals.
As cumulative error is a a independent ground for relief that must be raised
separately from the underlying instances of error. See Linney v. State , 413
S.W.3d 766, 767 (Tex. Crim. App 2013)(Cochran J., concurring); Westley v.
Johnson , 83 F.3d 714, 726 *5 th Cir. 1996). Failure to brief and raise an issue in
the lower court waives the error. See Tallant v. State , 742 S.W.2d 292, 294
(Tex. Crim. App. 1987); Ward v. State , 829 S.W.2d 787, 795 (Tex. Crim. App.
1992)( overrruled on other grounds by Riney v. State , 28 S.W.3d 561 (Tex.
Crim. App. 2000)).
The State submits that the charge errors complained of either were not harmful to the degree necessary under the appropriate Almanza standard or were
not trial court error. As such, this Court should affirm this conviction.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court affirm the opinion of the Court of Appeals. Respectfully submitted,
/s/ Michael W. Morris
RICARDO RODRIGUEZ, JR.
CRIMINAL DISTRICT ATTORNEY HIDALGO COUNTY TEXAS ___________________________ Michael W. Morris, Assistant Criminal District Attorney State Bar No. 24076880 Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closner Blvd.
Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407 Michael.Morris@da.co.hidalgo.tx.us ATTORNEYS FOR THE STATE *23 Certificate of Compliance This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than
14-point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), because it contains 3,318
words, excluding the parts exempted by Rule 9.4 /s/ Michael W. Morris
Respectfully submitted, _____________________________ Michael W. Morris, Assistant Criminal District Attorney State Bar No. 24076880 Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closner Blvd.
Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407 Michael.Morris@da.co.hidalgo.tx.us *24 CERTIFICATE OF DELIVERY This is to certify that a true and correct copy of the foregoing Brief of State/Appellee was sent to Appellant’s attorney of record, Brandy M. Wingate /s/ Michael W. Morris at, The Smith Law Group, by e-service, on this the 4 th day of May, 2015.
______________________ Michael W. Morris
[1] The Statement of Facts is generally a complete recitation of the evidence adduced at trial; the State would note that Appellant includes both the evidence that supports his assertions as well as the evidence generally against him. As Appellant has been found guilty, the evidence is viewed in a light favoring the verdict.
[2] Smith v. State , 965 S.W.2d 509, 512 (Tex. Crim. App. 1998).
[3] “Van a ver” was translated as “you will see” at trial. 15 RR 235.
[4] Appellant’s claim that the Court of Appeals used this statement out of context is without merit. The jury and the Court of Appeals was free to interpret this in the manner they did, Appellant simple cannot on appeal require a phrase to have a certain meaning as the evidence is to be viewed in the light most favorable to a jury’s verdict. See
[5] For this proposition, Appellant contends there was no provocation at the second altercation However, the State contends that there was no separate altercation but merely a continuation of the first. Additionally, Appellant’s attack on the provocation instruction is predicated on a finding of abandonment. He does not actually challenge the elements of provocation for what he terms the “first altercation.”
[6] Appellant again asserts that by running some 70 yards he clearly abandoned the difficulty. As such in the State’s response this is not the case. It was a fact issue that should have gone and did go to the jury. Appellant would have this Court hold that running to his vehicle while shouting threats is abandonment as a matter of law. Provocation and abandonment are fact intensive issues that should go to a jury as long as there is some evidence to support the inclusion of the instruction. Smith , 965 S.W.2d 519
[7] This references to the “Threats as Justifiable Force” provision in the Texas Penal Code. T EX . P ENAL C ODE A NN . § 9.04 (2012).
[8] As an illustration, the Sixth Court of Appeals in Texarkana has held that failure to request this instruction waived this instruction as the trial court had no duty to sua sponte include the instruction and therefore “did not err in failing to instruct the jury on this defensive issue.” Golston v. State , 2012 Tex. App. LEXIS 5251 (Tex. App. Texarkana June 29, 2012).
[9] 14 RR 213-15
[10] 16 RR 103-04