State of Louisiana v. B. J. B.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 08-112 consolidated with KA 08-113

STATE OF LOUISIANA

VERSUS

B. J. B.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 44658
HONORABLE J. BYRON HEBERT, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Michael Harson
District Attorney
Laurie A. Hulin
Assistant District Attorney
15th Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant:
B. J. B.

SAUNDERS, Judge.

This is a case wherein Defendant voluntarily came to police and confessed to

criminal activity. Defendant sought to have that confession suppressed via motion on

the basis that the State failed to prove that his statement was freely and knowingly

made, and that he was not still under the influence of the drugs at the time he

confessed.

The district court denied Defendant’s motion. Defendant and the State reached

a plea agreement with Defendant reserving his right to appeal the denial of his motion

to suppress. Defendant has exercised his reserved right. We affirm his conviction.

FACTS AND PROCEDURAL HISTORY:

On November 15, 2005, the Vermilion Parish Grand Jury, under Vermilion

Parish docket number 2005-44658 charged Defendant, B.J.B., with five counts of

aggravated rape upon a juvenile whose birth date is July 4, 1980.1 The bill of

indictment alleged that the offenses occurred from November 1, 1992, through

January 31, 1993. Defendant pled not guilty at his December 8, 2005, arraignment.

On May 15, 2007, Defendant filed with the district court a motion to suppress

his confession wherein he admitted to raping both juveniles on the basis that he had

been confused about his ability to have, and the necessity of having, an attorney

present during questioning. As a result, the district court conducted a suppression

hearing on September 27, 2007. After considering the evidence presented at the

hearing, the district court denied Defendant’s motion to suppress.

On or about October 16, 2007, pursuant to a plea agreement with the State,

Defendant pled guilty to one count of forcible rape, in violation of La.R.S. 14:42.1.

1
In accordance with La.R.S. 46:1844(W), Defendant’s initials are being used
in order to protect the identity of his daughter who is the victim in the instant case.

In accordance with State v. Crosby, 338 So.2d 584 (La.1976), Defendant reserved the

right to contest the district court’s denial of his motion to suppress on appeal. As part

of the plea agreement, the State agreed not to file a habitual offender bill against him.

On the same date, the trial court sentenced Defendant in accordance with his

plea agreement to twenty-five years at hard labor without benefit of probation, parole,

or suspension of sentence. The sentencing court ordered the penalty to run

consecutively to those imposed in Vermilion Parish docket number 2005-44659 and

those imposed in St. Mary Parish docket number 2004-164063.2 The district court

ordered that Defendant was to be given credit for time served since his date of arrest

in either the instant case or in Vermilion Parish docket number 2005-44659.

Defendant now appeals, assigning error to the district court’s denial of his

motion to suppress. We affirm Defendant’s conviction.

DISCUSSION OF THE MERITS:

Defendant argues that the district court erred in denying his motion to suppress

his January 29, 2004, statement made to Franklin Police Officers as the State failed

to meet its burden at the suppression hearing to prove that his statement was freely

and knowingly made, and that he was not still under the influence of the drugs at the

time he confessed.

Defendant claims that the free and voluntary nature of his confession is

questionable because he was under the influence of illicit drugs and medication at the

time he gave his statement. The evidence that Defendant cites to aver that his lucidity

should have been in question is: (1) he told the officers he was under the influence

of medication, (2) he gave the officers a bag containing his medication, (3) his

2
Defendant, under KA08-113, has also appealed Vermilion Parish docket
number 2005-44659. The cases were consolidated for briefing purposes only.

2

account of the offenses appeared disjointed and confused, and (4) he could not

remember dates, ages, or birthdays at the time of the interrogation.

Defendant also argues that his confession should be suppressed because he was

confused about his ability to have an attorney and the necessity for one at the time of

his confession. Defendant contended that he should have been provided with a

lawyer, and the statements should be suppressed because he was not given legal

counsel at that time.

This court has determined that the proper standard of review for examining

mixed questions of fact and law on a motion to suppress is abuse of discretion:

When a trial court rules on a defendant’s motion to suppress, the
appellate court must look at the totality of the evidence presented at the
hearing on the motion to suppress. The appellate court should not
overturn a trial court’s ruling, unless the trial court’s conclusions are not
supported by the evidence, or there exists an internal inconsistency in
the testimony of the witnesses, or there was a palpable or obvious abuse
of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State
v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213[, writ
denied, 98-582 (La. 7/2/98), 724 So.2d 202].

State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ

denied, 99-33 (La. 5/28/99), 743 So.2d 658.

The district court conducted a hearing on Defendant’s motion to suppress

evidence on September 27, 2007. Captain Jim Broussard with the Franklin Police

Department testified as the State’s only witness. A summary of Captain Broussard’s

direct examination follows:

! Lieutenant Weinberger had received a complaint from Defendant’s wife and

daughter concerning allegations that Defendant had been sexually assaulting

their daughter since she was twelve years old.

! Later the same day, Defendant’s friend, André Dugas, brought him to the

Franklin Police Station.

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! The Franklin Police had not been expecting Defendant and had no knowledge

that he would be there as he came of his own volition.

! When Defendant arrived, Captain Broussard met with he and Mr. Dugas for ten

to fifteen minutes.

! During the meeting, Defendant told Captain Broussard that he wanted to tell

what had happened between he and his daughter.

! Mr. Dugas was asked to leave the room as the officers set up a video recorder

and retrieved a copy of their rights form so that Defendant could be

interviewed.

! Lieutenant Carla Bourgeois joined Captain Broussard and they began the

interview.

! Defendant signed the waiver of rights attached to the rights form after the

officers read the form aloud.

! After Defendant waived his rights, Defendant was asked whether he preferred

to be asked questions or to tell them what he wanted without questions.

! Defendant did not display signs that he was intoxicated.

! Defendant was upset about what had taken place, but he seemed okay as he

was coherent both prior to and during the recorded interview.

! Defendant had not been incarcerated on these charges at any time before he

went to the police station that evening, and he never indicated during the

interview that he wished to have an attorney present.

! No one made promises to Defendant in exchange for the statement, and no one

threatened or forced Defendant into giving the statement.

! Defendant stated that he went to the police station to confess because the

offenses had been bothering him for a long time and because he wanted it to

all come to an end.

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! At one point, Defendant asked Lieutenant Bourgeois whether he needed an

attorney.

! Defendant was told that it was his choice.

! Defendant said that he did not need an attorney as he wanted to talk to the

officers.

! Defendant clearly admitted to raping both juveniles.

The State then introduced a transcript of the interview into evidence. The State

then played a portion of the video recording of Defendant’s statement for the district

court and introduced into evidence an audio tape of the interview with him.

On cross-examination, Captain Broussard clarified that, although Defendant

stated that he was taking medication, he did not think that Defendant’s medication

had impaired his judgment. Captain Broussard further stated that Defendant’s speech

was not greatly impaired and his comprehension seemed okay. Finally, Captain

Broussard stated that it was possible they had drug-tested Defendant, but there was

nothing in the file to indicate that such a test had been performed in Defendant’s case.

Defendant testified on his own behalf for the limited purposes of the

admissibility of the confession. A summary of his direct examination follows:

! Defendant hardly remembered the statement he gave to Captain Broussard

because he was very much under the influence.

! The officers were aware of his intoxication.

! He and Mr. Dugas had been smoking marijuana and taking Xanax since around

6:00pm that day.

! Mr. Dugas had been attempting to talk Defendant into going to the police

station by telling him that the police were going to come for him and he did not

want his children to see that.

! Mr. Dugas finally convinced him to go to the police station around 10:00 p.m.

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! He did not remember how many Xanax he had taken, but he had just gotten a

new prescription for ninety pills and had fifteen left.

! He did not remember much about that evening, only going to the police station.

! He knew both Captain Broussard and Lieutenant Bourgeois prior to giving

them the January 29, 2004, statement.

! He did not remember signing the waiver of rights form, but the signature

appeared to be his.

! He would have meant the Xanax when he said that he was under the influence

of medication, but he would not have admitted to the marijuana use because he

still had some at the house and did not want to get his wife into trouble.

On cross-examination, Defendant revealed that he remembered some of what

had transpired at the police station, such as who was present, conversations with some

of those people, and taking a smoke break. Defendant admitted that his body was

functioning at the time of the interview, but he denied that his mind was functioning.

Defendant then conceded that he did not request legal counsel while he was at the

police station.

The State then introduced Defendant’s advice of rights and waiver of rights

form. The form shows that on January 29, 2004, at approximately 11:04 p.m.,

Defendant, age thirty-nine, indicated that he understood his rights and that he waived

those rights. The form reads as follows:

I have been read this statement of my rights and I understand what
my rights are. I am willing to make a statement and answer questions.
I do not want a lawyer at this time. I understand and know what I am
doing. No promises or threats have been made to me and no pressure or
coercion of any kind has been used against me.

The transcript of Defendant’s interview at the Franklin Police Station shows

that Defendant’s confession began with Captain Broussard giving the date, time, and

introducing both himself and Lieutenant Bourgeios. He then gave Defendant’s name

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and asked him to provide his middle name and age. After Defendant complied,

Captain Broussard next asked him if he was “under the influence of any alcohol or

. . .” Defendant interrupted him to say, “huh, huh – just my medication.”

Captain Broussard then advised Defendant of his rights to an attorney during

questioning, to have one appointed if he could not afford one, and his right to stop the

interview and request a lawyer. Defendant twice indicated that he understood those

rights.

Following is the initial exchange concerning whether Defendant intended to

waive his right to counsel: (CJB is Captain Broussard; BB is Defendant; and CB is

Lieutenant Bourgeois.)

CJB: are you willing to make a statement and answer questions?

BB: yes sir

CJB: okay – do you want a – I do not want a lawyer at this time – is
that correct? You don’t want one right now

BB: what ya’ll think – I mean

CJB: well, its [sic] not for us

BB: I don’t – I don’t really know Jimmy, I mean

CJB: it’s the object – I mean – to do the right thing

BB: right

CJB: but I can’t influence you into making the decisions in that part,
but in order [f]or us to get all this we have to go through all this
– this rights form – so [d]o you need a lawyer at this time – right
now – what your answer is?

BB: I don’t think so, huh?

CB: are you asking us a question?

BB: I don’t really know – Carla – I don’t know what to do

CB: what do you want to do?

7

CJB: right now though [Defendant], in order for us to go through all
this we have – for us to hear your whole side of the story we have
to do all this the right way [–] now – the question is do you need
a lawyer at this time to talk to us [–] okay?

BB: no, I’ll talk to ya’11

CJB: okay, do you understand and do you know what your [sic] doing?

CJB: yes, is that correct – your [sic] shaking your head, yeah.

BB: yes, sir

CJB: okay, no promises or threats have made to me and no pressure or
coercion of any kind has been used against me? Has anybody
pressured or coerced you to come over here[?]

BB: no

CJB: alright – Do you feel comfortable talking to me and Carla?

BB: yes, I do

CJB: okay [–] alright – (inaudible) – all you do is sign your name and
I read you rights [a]nd the next line is that your [sic] willing to
talk to us and all that. – okay – (inaudible) – okay, now all day
today Bob, you’ve been feeling bad and the condition that you are
right?

BB: I’ve been feeling bad for a long time, Jimmy

CJB: okay, now the biggest thing [–] you know [–] do you want to tell
us your story or do [y]ou want us to ask questions – you want to
tell us right off the bat first what – Why are you here?

BB: because I [–] I did something wrong

CJB: okay, what you – what you did wrong?

BB: I did something wrong with my daughter

Defendant was not placed under arrest until the end of the interview. After

considering the evidence and arguments presented, the district court denied

Defendant’s motion to suppress. The following is a transcript of the district court’s

statements:

THE COURT: Article 703 of the Code of Criminal Procedure
sets the ground for motion to suppress, and basically what it says is that

8

evidence can be suppressed from a trial on the ground that it’s been
unconstitutionally obtained. Any constitutional ground to suppress a
confession may be considered.

I think the constitutional issues that arise fit basically broadly into
two categories, and one is advice rights under Miranda, and the other
one is the absence of coercion of any kind. I think that the issues that
counsel has pointed out for the defense, the two main issues, capacity
and valid waiver of an attorney, is what I need to address.

I will agree with the State that [Defendant]’s memory of the
events of that night or the day that he gave his confession are
convenient, that he remembers those things that would help him in this
hearing, and he doesn’t remember those things that hurt him in the
hearing. I’m not going to recite them again, but, again, he remembers
taking -- overdosing on his pills and being coerced to go to the police
station and who was in the room, when, at what time, and smoking the
cigarette and whatnot, but he doesn’t remember anything else.

Addressing those two issues of capacity and medication, on the
mental capacity, I think that we need to be careful not to exceed the
requirements of Miranda when a defendant is about to give a confession
with regard to the voluntariness. The obligation of the law enforcement
officer is to apprize the defendant of his rights under Miranda and to
ensure that he understands them. Certainly mental capacity comes into
it, and if there is an obvious mental impairment, then I think that it
would bear some delving into by the law enforcement officer.

I find it strange that, in answer to the question from Captain
Broussard --

M. HULIN: Yes, sir.

THE COURT: -- are you under the influence of alcohol or -- and
he was interrupted. And the answer is: Huh-uh or no, only my
medication. I think that the question was clearly, are you under the
influence of any alcohol, drug, or medication that would impair your
ability. I mean, he didn’t get to say all of that. I don’t know if he would
have said all of that.

But it seems to be very odd that, if the defendant had taken as
much Xanax that night and had smoked as much marijuana that night as
he claims to have had, then he would have said, I’ve taken a lot of
prescription medication, even if he didn’t want to admit to the
marijuana. If he had a prescription for Xanax -- which hasn’t been
proved here. I haven’t seen any prescription. I haven’t seen any
medical report. If he took that much Xanax, I think that he would have
said that he was under influence of a lot of Xanax.

Besides that, I looked at the video, even though we couldn’t hear
it. I listened to the audio, and I don’t detect any signs of impairment.

9

The officer testified that he didn’t detect any signs of impairment, which
would have prompted him or required him, perhaps, to go further into
the situation.

So, in terms of being mentally impaired as a result of this
overdose of Xanax or -- well, I will call it -- it’s an overdose, is what it
is. It’s beyond what he was supposed to take. I don’t see that. The
defendant himself testified as to the effect it would have on him, slowing
down his speech and his physical movements, and there was none of
that.

The education, ninth-grade education, does not render a person
incapable of understanding his Miranda Rights. I think that, by the time
he’s in the ninth grade, completes the ninth grade, he can read and write.
There is nothing to indicate that he was uneducated. If he had answered,
I never went to school or I didn’t make it past, you know, the early
grades, then perhaps it would have, again, required some more
questioning. But when he says, I’ve got a ninth-grade education, I think
that that, under our school system, should be fine in terms of -- if the
issue was, can you read and write, then I think that that answered that.

With regard to the attorney, yes, he did -- I do agree with defense
counsel that the defendant exhibited ambivalence about whether or not
to get an attorney, and he was seeking advice from the police officers as
to whether or not he should have a lawyer at that time. I think that
Captain Broussard correctly avoided any advice. It is not his place to
advise one way or the other that he should have an attorney. He
repeatedly told him: You have a right to an attorney right now before
we go any further. We need to do this right, and part of doing it right is
that, if you want an attorney, we don’t ask -- you don’t answer any more
questions, we stop right now, and it’s up to you. It’s not our decision.

And the defendant was obviously at that time trying to get the
officers to commit one way or the other, to tell him he either did or did
not need an attorney, and Captain Broussard just wouldn’t do it, and I
think that’s correct. I don’t think that law enforcement should imply in
any to which way the defendant should go.

The Miranda requirement is that he be advised of his right to an
attorney immediately and that questioning would immediately stop if he
expressed any desire for an attorney, which Captain Broussard did, he
did it well, he did it repeatedly. And at the end he would not ask another
question until the defendant committed categorically, no, I don’t want
an attorney. No, I will answer your questions. So I don’t have any
problem there. I will deny the motion to suppress.

The State bears the burden of proving the admissibility of a purported

confession or statement by the defendant. La.Code Crim.P. art. 703(D). “Before

what purposes [purports] to be a confession can be introduced in evidence, it must be

10

affirmatively shown that it was free and voluntary, and not made under the influence

of fear, duress, intimidation, menaces, threats, inducements or promises.” La.R.S.

15:451 (footnote omitted).

Defendant first contends that the timing of his Miranda warning and waiver of

rights corrupted the free and voluntary nature of his statement. Defendant contends

that the Franklin Police officers created a problem with the free and voluntary nature

of his confession by interrogating him about the alleged crimes for ten to fifteen

minutes prior to advising him that he was entitled to presence of counsel. Defendant

alleges that the Franklin Police had been notified earlier in the day that Defendant had

committed a sexual offense against his daughter when his daughter gave a statement

to the officers at the Franklin Police Station. Defendant urges, therefore, that the

police officers interviewing Defendant should have advised him of his right to

counsel at the beginning.

Defendant neither included this timing issue in his motion to suppress nor

verbally argued the assertion at the suppression hearing. Because Defendant failed

to first present this issue to the trial court, it is beyond this court’s scope of review.

Uniform Rules—Courts of Appeal, Rule 1-3.

Defendant, both by verbal affirmance and by signing the waiver form, indicated

that his statement was free and voluntary. Captain Broussard attested that Defendant

voluntarily appeared at the police station without either an invitation by, or prior

knowledge of, the Franklin Police. Defendant agreed that the signature on the waiver

appeared to be consistent with his handwriting, and Captain Broussard also confirmed

that Defendant was, indeed, the person who signed the waiver of rights form.

Therefore, the State made an initial showing that Defendant’s confession was both

free and voluntary.

11

Defendant further claims that the free and voluntary nature of his confession

is questionable because he was under the influence of illicit drugs and medication at

the time he gave his statement.

The supreme court has previously discussed the test for determining whether

a defendant’s intoxication was sufficient to justify suppression of his confession:

Where the free and voluntary nature of a confession is challenged on the
ground that the accused was intoxicated at the time of interrogation, the
confession will be rendered inadmissible only when the intoxication is
of such a degree as to negate defendant’s comprehension and to render
him unconscious of the consequences of what he is saying. Whether
intoxication exists and is of a degree sufficient to vitiate the
voluntariness of the confession are questions of fact. The admissibility
of a confession is in the first instance a question for the trial judge. His
conclusions on the credibility and weight of the testimony relating to the
voluntariness of a confession will not be overturned unless they are not
supported by the evidence.

State v. Robinson, 384 So.2d 332, 335 (La.1980) (citations omitted).

This court has previously reviewed cases where the defendant argued his

intoxication merited suppression of his confession:

A review of reported decisions reveals that the courts have
admitted confessions in situations where the defendant has admitted to
using drugs shortly before the confession. For example, in State v.
Williams, 602 So.2d 318 (La.App. 1 Cir.), writ denied, 605 So.2d 1125
(La.1992), the defendant had a blood alcohol level of 0.169, and a drug
screen test revealed the presence of cocaine metabolites and
cannabinoids. However, there was no testimony given as to the amount
of drugs the defendant had ingested, or when he had ingested the drugs.
The court ruled that simply because a defendant had used drugs or
alcohol, or both, did not per se render his confession invalid. These
factors are simply one of the circumstances the court examines when
assessing the voluntariness of a confession. In Williams, the court noted
that the defendant was able to answer the questions with reasonably
direct responses, expressed his thoughts in an appropriate manner, and
he was able to correct written mistakes. Therefore, the court of appeal
reversed the trial court’s ruling suppressing the confession.

In State v. Davis, 92-1623 (La. 5/23/94); 637 So.2d 1012, cert.
denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994), the
Louisiana Supreme Court upheld a trial court’s decision that a
defendant’s confession was free and voluntary even though the
defendant had smoked three or four rocks of crack cocaine twenty-four
hours before his confession and he had consumed three or four beers

12

earlier in the day of his confession. The court noted that the defendant
appeared coherent, and he was able to explicitly recount the details of
the crime.

In State v. Green, 613 So.2d 263 (La.App. 4 Cir.1992), the
defendant sought to suppress his confession claiming he was under the
influence of crack cocaine at the time of his confession. The detective
who interrogated the defendant testified the defendant knew exactly
what he was saying and had complete control of himself. The court
refused to suppress the confession, finding the defendant freely and
voluntarily waived his Miranda rights, and that he was not so
intoxicated he was unconscious of the consequences of what he was
saying.

In State v. Rose, 606 So.2d 845 (La.App. 2 Cir.1992), the
defendant claimed the alcohol and cocaine she had consumed rendered
her incapable of giving a free and voluntary statement. The detective
interrogating the defendant noticed track marks on her arms and smelled
alcohol on her breath, but felt her general demeanor and responses to his
questions indicated an ability to comprehend the situation and to
knowingly and intelligently waive the right to remain silent. Therefore,
the defendant’s motion to suppress was denied.

In the present case, two experts gave conflicting opinions about
the Defendant’s condition at the time of his confession. Also, all of the
police officers who had contact with the Defendant on the night of his
confession testified at the pretrial hearing that the Defendant did not
appear intoxicated from cocaine. The test set forth in Robinson, 384
So.2d 332, is not simply did the defendant use alcohol or drugs, but did
the use of these substances negate the defendant’s comprehension and
render him unconscious of the consequences of what he is saying.

Although the Defendant presented evidence concerning his
intoxication at the time of his confession, the State presented sufficient
evidence to prove that the Defendant freely and voluntarily waived his
right to remain silent and to consult with an attorney before he gave his
confession. The evidence presented did not establish that the Defendant
was intoxicated to a degree that it negated his comprehension and
rendered him unconscious of the consequences of what he said.

State v. Guillory, 97-179, pp. 16-18 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, 411,

writ denied, 98-955 (La. 10/9/98), 726 So.2d 17.

In the instant case, Captain Broussard’s testimony confirmed that Defendant

had brought a small bag of medication to the police station with him. However,

Captain Broussard denied that Defendant exhibited any signs of intoxication or

incoherence. On cross-examination, Captain Broussard denied thinking that

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Defendant was intoxicated due to his medication. Captain Broussard conceded that

it was possible that they had drug-tested Defendant, but there was nothing in his file

showing that such a test had occurred.

Based on its observation of the evidence presented at the suppression hearing,

the district court noted that Defendant denied being under the influence of any

intoxicating substance, found that the video of his confession revealed that

Defendant’s physical demeanor was not consistent with intoxication, found that the

audio recording of Defendant’s statement was not consistent with intoxication, and

found that Defendant’s faulty memory conveniently recalled only those details that

would aid him at the suppression hearing and none of the events detrimental to his

motion to suppress. The district court also pointed out that Captain Broussard had

not noticed any indication of impairment. Therefore, the district court based on its

own observations of the physical evidence and the testimony of Captain Broussard,

found Defendant’s assertion that he was intoxicated unbelievable.

We have reviewed both the audio and video recordings. Defendant’s demeanor

and language seemed normal and were not consistent with someone so inebriated as

to negate comprehension and to render someone unconscious of the consequences of

his decisions.3 After listening to the audio tape, the exchange concerning whether

Defendant wanted an attorney present demonstrated that Defendant was cognizant of

the repercussions of refusing assistance of counsel. He did not seem confused or

befuddled. He simply wanted the officers’ opinions on whether he should request a

lawyer. Given that the trial court’s findings were supported by the physical evidence

and Captain Broussard’s testimony regarding Defendant’s appearance of sobriety,

they did not constitute a palpable or obvious abuse of discretion.

3
We note that the only seeming physical or audible characteristic out of the
ordinary was a repeated sniffing as if Defendant had a head cold.

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CONCLUSION:

We affirm Defendant’s conviction.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,

Uniform Rules, Courts of Appeal.

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