The State of Texas v. Satdiel Jeremy Dominguez Appeal from 112th District Court of Pecos County (opinion)

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS THE STATE OF TEXAS, § No. 08-21-00036-CR § Appeal from the v. § 112th Judicial District Court SATDIEL JEREMY DOMINGUEZ, § of Pecos County, Texas Appellee. § (TC# P-3968-112-CR) Appellant, OPINION The State of Texas charged Appellee Satdiel Jeremy Dominguez with one count of possession of a controlled substance in penalty group one in an amount of 1-4 grams.1 Dominguez moved to suppress the narcotics evidence, arguing that the drugs were seized from his vehicle following an unreasonably prolonged traffic stop that was not supported by reasonable suspicion. Following a hearing on Dominguez’s motion to suppress, the trial court granted the motion, entering detailed findings of fact and conclusions of law. The State now appeals the court’s order granting the motion. See TEX.CODE CRIM.PROC.ANN. art. 44.01(5) (allowing state to appeal grant of motion to suppress evidence). For the following reasons, we affirm the trial court’s order. 1 TEX.HEALTH & SAFETY CODE ANN. § 481.102(6). 1 I. BACKGROUND During a suppression hearing, Sergeant Thomas Ronquillo testified that on October 11, 2018, he was assigned to a narcotics task force with the Fort Stockton Police Department. That day, Ronquillo was driving a marked patrol vehicle when he observed Dominguez in the driver’s seat of a Jeep Renegade parked at a Dollar General store. Another person was also present in the Jeep. Ronquillo was familiar with Dominguez from prior investigations, and upon running the registration of Dominguez’s Jeep while it was parked at the store, he discovered that the vehicle’s registration had expired. Dominguez drove away from the parking lot, and Ronquillo began following him “for a little bit through the town”. Further testimony revealed that Ronquillo followed Dominguez for over five miles through Fort Stockton. At some point, Dominguez dropped off his passenger at a house, and after Dominguez drove away, Ronquillo conducted a traffic stop for the Jeep’s expired registration. Once stopped, Dominguez acknowledged that the vehicle’s registration was expired. While they were speaking, Ronquillo noticed that Dominguez was “pretty nervous,” his hands were shaking, and he had just lit a cigarette, which suggested to Ronquillo that Dominguez was attempting to calm his nerves. Ronquillo also noticed the presence of a radar detector in the vehicle. Based on his experience, Ronquillo believed that individuals involved in narcotics trafficking often use radar detectors to alert themselves to the presence of nearby law-enforcement officers. Finally, Ronquillo agreed that he wrote in his report that he detected a “faint” odor of marihuana, but that the odor was too weak to positively identify the odor as marihuana. At the inception of the stop, Ronquillo asked Dominguez for proof of insurance for the vehicle, but Dominguez only first provided proof of an expired insurance policy. Ronquillo then had Dominguez exit the vehicle. While Ronquillo continued to get 2 information from Dominguez and ran his information with dispatch, Sergeant Daniel Rangel, a drug-sniffing dog handler with the Texas Department of Public Safety (DPS), arrived on scene. Ronquillo asked Dominguez for permission to search the Jeep. Dominguez denied the request. Ronquillo claimed that as he awaited dispatch to confirm the insurance information and as he continued with the traffic investigation, Rangel ran his drug-sniffing dog around the Jeep. The dog alerted to the presence of narcotics in the vehicle, and Ronquillo conducted a pat-down search of Dominguez’s person, which yielded a marihuana pipe from his pocket. Rangel searched the interior of the Jeep and found marihuana and a small cylinder containing a substance he believed to be methamphetamine. Ronquillo subsequently arrested Dominguez for possession of marihuana and methamphetamine. On cross-examination, Ronquillo testified that he wrote in his report that he believed Dominguez to be “higher up in the narcotics business” and that he had conducted a traffic stop of Dominguez on a previous occasion. Ronquillo acknowledged that he would have been justified in conducting a traffic stop for the expired registration while the vehicle was parked at the Dollar General store, and that he did not need to follow Dominguez for such a long time before initiating the traffic stop. Ronquillo also agreed that he had called for a K-9 unit to respond before initiating the traffic stop, and that Dominguez had admitted that the registration was expired while Ronquillo awaited the K-9 unit. Ronquillo also acknowledged that he did not mention the odor of marihuana in any of the body-cam videos made at the scene of the stop. The trial court granted Dominguez’s motion to suppress by written order, concluding that Ronquillo lacked reasonable suspicion to prolong the detention beyond the reasons for the initial traffic stop. The trial court also entered written findings of fact and conclusions of law that we detail below. 3 The State challenges the trial court’s order granting Dominguez’s motion to suppress in three issues, arguing that: (1) the trial court erred by concluding that Ronquillo subjected Dominguez to an illegally prolonged detention; (2) the officer would have been justified to detain Dominguez even after the traffic violation was resolved based on reasonable suspicion of additional criminal activity; and (3) a free-air sniff by a canine is not a search and can be the basis of probable cause to search. II. DISCUSSION A. Standard of Review Appellate courts review a trial court’s ruling on a motion to suppress under a bifurcated standard. See State v. Arellano, 600 S.W.3d 53, 57 (Tex.Crim.App. 2020). A trial court’s findings of historical fact, and determinations of mixed questions of law and fact that turn on credibility and demeanor, are afforded almost total deference if they are reasonably supported by the record. See id., citing Sims v. State, 569 S.W.3d 634, 640 (Tex.Crim.App. 2019). The same deferential standard of review is applied to a trial court’s determination of facts that are based on a video recording admitted at the suppression hearing. See State v. Duran, 396 S.W.3d 563, 570 (Tex.Crim.App. 2013). Appellate courts may review de novo “indisputable visual evidence” contained in a videotape. Id. A trial court’s application of the law of search and seizure to the facts is reviewed de novo. See id. When the trial court makes findings of fact, a reviewing court determines whether the evidence, viewed in the light most favorable to the court’s ruling, supports those findings. See Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013). The prevailing party is afforded the “strongest legitimate view of the evidence,” along with all reasonable inferences that can come from it. Duran, 396 S.W.3d at 570, quoting State v. Weaver, 349 S.W.3d 521, 525 4 (Tex.Crim.App. 2011). B. Applicable Law A traffic stop and any ensuing detention must be supported by reasonable suspicion. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex.Crim.App. 2017). “Reasonable suspicion to detain a person exists when a police officer has ‘specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.’” Id., quoting Furr v. State, 499 S.W.3d 872, 878 (Tex.Crim.App. 2016) (internal quotation marks omitted). A reasonable suspicion is more than a mere hunch; the standard requires considerably less proof of wrongdoing than a preponderance of the evidence, and less than is necessary for probable cause. Garcia v. State, No 08-19-00176-CR, 2021 WL 235658, at *4 (Tex.App.--El Paso Jan. 25, 2021, no pet.) (not designated for publication), citing Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) (noting that reasonable suspicion falls considerably short of 51% accuracy). When determining whether reasonable suspicion to conduct a detention exists, we disregard the subjective motives of the arresting officer and instead determine whether there was an objectively justifiable basis for the detention. See Ramirez-Tamayo, 537 S.W.3d at 36; Whren v. United States, 517 U.S. 806, 813 (1996). The Supreme Court has recognized that “[a] seizure for a traffic violation justifies a police investigation of that violation.” Garcia, 2021 WL 235658, at *4, citing Rodriguez v. United States, 575 U.S. 348, 354 (2015). Beyond determining whether to issue a traffic citation, an officer’s mission during a traffic stop includes “ordinary inquiries incident to [the traffic] stop.” Rodriguez, 575 U.S. at 355, quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005). Such inquiries typically involve determining whether there are outstanding warrants against the driver, 5 running a record’s check on the driver’s license, and inspecting the vehicle’s registration and proof of insurance. See id. (noting that these checks serve the same purpose as enforcement of the traffic code by ensuring vehicles are operated safely), citing Delaware v. Prouse, 440 U.S. 648, 658-60 (1979). And because traffic stops are “especially fraught with danger to police officers,” law enforcement may also order a driver to exit a vehicle lawfully detained for a traffic violation without violating the Fourth Amendment. Garcia, 2021 WL 235658, at *4, quoting Arizona v. Johnson, 555 U.S. 323, 330-31 (2009). But “[l]acking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.” Rodriguez, 575 U.S. at 356. The seizure of the driver “ordinarily continues, and remains reasonable, for the duration of the stop.” Garcia, 2021 WL 235658 at *4, citing Johnson, 555 U.S. at 333 (confirming that a traffic stop normally ends when officers have no further need to control the scene and inform the driver that he is free to leave). A traffic stop made to investigate a traffic violation must be reasonably related to that purpose and may not be prolonged beyond the time to complete the tasks associated with the traffic stop. Lerma v. State, 543 S.W.3d 184, 190 (Tex.Crim.App. 2018), citing Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Crim.App. 2004). Although an officer may ask drivers and passengers about matters unrelated to the purpose of a traffic stop, any questioning cannot measurably extend the duration of the stop. Id., citing Johnson, 555 U.S. at 333. An officer may not prolong the stop, however, absent reasonable suspicion of some other criminal activity that would justify continuing the detention. See Rodriguez, 575 U.S. at 355-56 (holding that reasonable suspicion is needed to continue an otherwise completed traffic stop to conduct a canine sniff); see also State v. Martinez, 638 S.W.3d 740, 750-51 (Tex.App.--Eastland 2021, no pet.) (recognizing that reasonable suspicion of other criminal activity independent of a traffic 6 violation can justify a prolonged detention). “[O]nce the reason for the stop has been satisfied, the stop may not be used as a ‘fishing expedition for unrelated criminal activity.’” Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App. 1997), quoting Ohio v. Robinette, 519 U.S. 33, 41 (1996) (Ginsberg, J., concurring). When determining the lawfulness of a traffic stop and subsequent search and seizure under the Fourth Amendment, we engage in two inquiries: (1) whether the officer’s action was justified at its inception; and (2) whether the search and seizure were reasonably related in scope to the circumstances that justified the stop in the first place. Lerma, 543 S.W.3d at 190, citing Terry v. Ohio, 392 U.S. 1, 20 (1968). We discuss each inquiry in turn. C. Sgt. Ronquillo was Justified in Conducting a Traffic Stop In its findings of fact, the trial court found that Ronquillo observed Dominguez in a Jeep that was parked in a parking lot at a Dollar General store. While the Jeep remained parked at the store, Ronquillo checked the Jeep’s registration and discovered that the registration was expired. Dominguez eventually left the store with a passenger, and Ronquillo followed Dominguez for several miles as he drove through Fort Stockton. After Ronquillo initiated the traffic stop, Dominguez admitted that the Jeep’s registration was expired. The trial court did not base its suppression ruling on the lawfulness of the initial traffic stop, but on Dominguez’s prolonged detention following the stop. Based on the trial court’s findings, which were supported by Ronquillo’s testimony, we conclude that Ronquillo had reasonable suspicion to conduct a traffic stop of Dominguez for the Jeep’s expired registration. See TEX.TRANSP.CODE ANN. § 502.472 (stating that a person commits an offense by operating a motor vehicle that has not been registered as required by law). 7 D. Sgt. Ronquillo Improperly Prolonged the Detention Beyond its Initial Justification Next, we determine whether Ronquillo was justified in continuing to detain Dominguez past the initial reason for the traffic stop. The trial court found that even before initiating the traffic stop, Ronquillo had requested a DPS K-9 unit to respond. The time stamp of Ronquillo’s body-cam video, which was admitted during the suppression hearing, reflects that Ronquillo stopped Dominguez at about 20:21:10. After he was stopped, Dominguez admitted to Ronquillo that the Jeep’s registration was expired. Dominguez’s insurance card, which he had on a phone, showed it to be expired. He told Ronquillo that he had just purchased the vehicle and could contact the previous owner to get a current insurance card. And while searching through the phone to find the insurance card, Dominguez saw a notification that his grandmother had just passed away. At approximately 20:24:46, Ronquillo asked Dominguez to step out of the Jeep and to “hang tight right here,” and Dominguez complied. Ronquillo next began questioning Dominguez about his personal information and the owners of the Jeep’s insurance policy. At 20:26:30 Ronquillo called dispatch to confirm Dominguez’s personal information. Ronquillo finished checking Dominguez’s information, and he approached Dominguez, who was speaking on his cell phone with his sister about the expired insurance until 20:31:40. At 20:31:57, Ronquillo asked Dominguez if narcotics were present in the Jeep and if he could search the vehicle. Dominguez refused consent to search the vehicle by shaking his head and saying, “No.” While Ronquillo was speaking to Dominguez, Officer Rangel arrived on-scene with his drug-sniffing dog. At 20:32:25, Ronquillo walked over to Rangel and informed him that Dominguez was “real shaky” and that he (Ronquillo) had followed Dominguez from the Dollar General store and observed him drop off a passenger. Ronquillo also told Rangel that Dominguez 8 had started smoking a cigarette (but said nothing about smelling the odor of marihuana). At 20:33:23, Ronquillo walked back to Dominguez and asked dispatch to run Dominguez’s insurance information. Ronquillo asked Dominguez why he was “so nervous,” and Dominguez replied, “That’s just who I am,” and that “I just get so angry, dude. You always do this to me, man. I don’t know why.” At 20:33:55, dispatch informed Ronquillo that Dominguez’s insurance had been confirmed. At 20:35:12 Rangel can be observed walking his drug-sniffing dog around the Jeep’s exterior. As the dog sniff continued, Dominguez began sighing, shaking his head, and putting his hands on his head. At 20:37:53, Rangel informed Ronquillo that the dog had alerted to the presence of narcotics in the rear area of the Jeep, and at 20:38:06 Ronquillo informed Dominguez that they would search the vehicle. Dominguez denied the presence of any contraband in the vehicle, and Dominguez began emptying his pockets and admitted that he had drug paraphernalia on his person. At 20:39:06, Ronquillo conducted a pat-down search of Dominguez’s person, and Ronquillo began searching the Jeep at 20:40:33. The record shows that Ronquillo knew that the Jeep’s registration was expired while it was parked at the Dollar General store. The time necessary to complete the investigation for the Jeep’s expired registration ended at the latest, when Dominguez admitted that the registration was expired. Thus, any detention that extended beyond the time necessary to acquire Dominguez’s personal information, check his information with dispatch, and write a citation for the expiredregistration violation would have been unreasonable. That said, Ronquillo may have been justified in continuing the detention to collect Dominguez’s information and determine whether Dominguez had valid insurance on the vehicle, which would constitute another separate offense under the Transportation Code. See TEX.TRANSP.CODE ANN. §§ 601.051, 601. 191. The body- 9 cam video shows that after getting Dominguez’s identifying information, Ronquillo contacted dispatch to check if Dominguez had any warrants and to check on the validity of the insurance. While waiting for dispatch to respond, Dominguez contacted his sister on his cell phone to ask her about the Jeep’s insurance policy. Dispatch subsequently confirmed the Jeep’s insurance information. Based on the time stamps in the video, the period time between the point when dispatch confirmed Dominguez’s insurance information and the beginning of the dog sniff was about two minutes. The video shows subsequent communication between Ronquillo and dispatch on the status of the Jeep’s insurance. The trial court, however, made a finding that before Ronquillo asked for consent to search and Rangel ran his dog around the Jeep, Ronquillo had collected Dominguez’s identifying information and driver’s license, confirmed that the Jeep’s registration had expired, and discovered that Dominguez had recently purchased the Jeep and could not provide proof of insurance. The court further found that instead of issuing a traffic citation or making an arrest for the Jeep’s expired registration or the lack of insurance, Ronquillo asked Dominguez for consent to search the Jeep, which Dominguez denied. Based on the court’s factual findings, which we must defer to, we conclude that any justification for continuing the detention based solely on the initial stop ceased when Ronquillo’s investigation of the traffic offenses concluded. See Lerma, 543 S.W.3d at 193, citing Rodriguez, 575 U.S. at 354 (recognizing that a “seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation”). Thus, Ronquillo would have needed reasonable suspicion of the existence of some other criminal activity to justify Dominguez’s continued detention. See id. At the suppression hearing, Ronquillo testified that he observed these indicators of criminal activity: (1) he was 10 familiar with Dominguez from prior investigations; (2) Dominguez was nervous and his hands were shaking during the stop; (3) Ronquillo noted in his report that he smelled the faint odor of marihuana coming from the Jeep; (4) there was a “heavy masking” of cigarette odor in the Jeep; (5) a radar detector was present in the Jeep, which suggested to Ronquillo through his experience that Dominguez may have used it to alert him to the presence of law enforcement; and (6) Dominguez was wearing a “Cheech and Chong” shirt with “marihuana leaves on it.” But the trial court made specific findings that undermined Ronquillo’s testimony on these grounds, finding that: (1) Ronquillo’s testimony that Dominguez was nervous was not supported by the body-cam video, and that Ronquillo “deliberately entic[ed] Dominguez by repeatedly asking him, “Why so nervous”;2 (2) Ronquillo’s claim that he detected a faint odor of marihuana emanating from Dominguez’s vehicle was undercut by the wind blowing and his admission that the odor was not strong enough for a positive indication;3 (3) contrary to Ronquillo’s testimony, Dominguez’s shirt did not have marihuana leaves on it; (4) Dominguez’s shaking and agitated demeanor were explainable by a history of repeated traffic stops by law enforcement and the death of Dominguez’s grandmother, a premise that Ronquillo acknowledged; and (5) Ronquillo could not confirm that everyone with a radar detector in their vehicle is a suspected criminal, and he admitted that the radar detector could have belonged to the Jeep’s previous owner. The court concluded that Ronquillo “was not able to articulate something more than an inchoate and unparticularized suspicion or hunch” that Dominguez was engaged in criminal activity beyond the traffic violations. The court found that each indicator Ronquillo relied upon “was attenuated by 2 And in any case, the Court of Criminal Appeals has recognized that nervousness alone is not enough to constitute reasonable suspicion after the purpose of the stop had concluded. Lerma v. State, 543 S.W.3d 184, 196 (Tex.Crim.App. 2018), citing St. George v. State, 237 S.W.3d 720, 726 (Tex.Crim.App. 2007). 3 The video shows tree limbs and trash blowing, and muffles much of the dialog recorded by the body-cam microphone. 11 the totality of the circumstances or easily controverted with reasonable observations by an objective party.” These findings constitute mixed questions of law and fact that turn on an evaluation of Ronquillo’s credibility and demeanor. Thus we defer to the trial court’s findings on these matters. See Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex.Crim.App. 2011). In support of its argument that the prolonged detention was justified, the State argues that this case is analogous to Lerma v. State. There, an officer stopped a vehicle in which the defendant was a passenger. 543 S.W.3d at 187. As the officer asked the defendant if he had any identification, he observed the defendant moving his feet, trying to reach his hands into his pockets, and exhibiting a nervous demeanor. Id. The officer asked him to step out of the vehicle to make a proper identification. Id. After his identification information did not check out, the officer performed a pat-down of the defendant’s person which turned up a knife, and during which, the officer smelled marihuana. Upon confronting the defendant about the odor, the defendant told the officer that he had smoked synthetic marihuana earlier that day and that he had some on him. Id. at 188. The officer searched the defendant’s pockets and found synthetic marihuana, causing the defendant to flee the scene (which occurred approximately nine minutes after the initial stop). Id. The defendant moved to suppress the drug evidence arguing that the officer did not have reasonable suspicion to frisk him or to prolong the traffic stop. Id. at 189. The Court of Criminal Appeals upheld the trial court’s denial of that motion, reasoning that the officer did not unduly prolong the traffic stop. The court noted that the officer was still actively involved in the traffic stop when he questioned the defendant and that the officer had not completed all aspects of the traffic stop when the defendant fled. Id. at 194. The court further recognized that the officer had yet to conduct a warrant check on the driver when the defendant fled, and that the officer had 12 observed evidence of at least three additional criminal offenses committed in his presence by the time the defendant was arrested. Id. at 194, 197. We find that Lerma is distinguishable from this case. Dominguez was alone in the vehicle, and thus his detention was not prolonged by a necessary investigation into the identity of any passengers. The trial court entered findings that undermined the existence of additional reasonable suspicion to suggest that some other criminal activity was afoot. And unlike the officer in Lerma (who was still investigating the traffic stop when the defendant fled) the court here found that Ronquillo continued the detention after he had collected Dominguez’s identifying information and dispatch had confirmed the Jeep’s insurance information. This case is more like Rodriguez v. United States, where the Supreme Court discussed whether an officer is justified in prolonging a traffic stop beyond the time needed to investigate whether a traffic offense has been committed. 575 U.S. at 354-57. In that case, an officer pulled the defendant over for a traffic violation and ran a computer check on the defendant and a passenger in the vehicle. Id. at 351. After around twenty-one minutes passed from the original stop, the officer issued a warning for the traffic offense, and when the officer asked the defendant for permission to run his drug-sniffing dog around the vehicle, the defendant refused. Id. at 35052. The officer detained the defendant for another seven or eight minutes after he issued the warning for the traffic violation and then ran his dog around the defendant’s vehicle, and after the dog alerted, the officer searched the vehicle and found a quantity of methamphetamine. Id. The defendant challenged the legality of the search, arguing that the officer had illegally prolonged the traffic stop without reasonable suspicion to conduct the dog sniff. Id. at 352. The Court held that once the traffic violation was resolved (along with any matters attendant to it), a further detention is illegal without reasonable suspicion of other criminal activity. Id. at 354-55, 358. 13 The record here lacks sufficient reasonable suspicion of some other criminal activity to justify Dominguez’s continued detention. The facts related by Ronquillo that are relevant to our analysis (a faint odor of marihuana that Ronquillo could not confirm, the presence of a radar detector, a shirt with Cheech and Chong’s faces on it, and Dominguez’s nervousness that Ronquillo instigated) do not collectively amount to reasonable suspicion that Dominguez was engaged in some other criminal activity. We cannot conclude that the trial court abused its discretion in making the findings that it did, and those findings support the trial court’s granting of Dominguez’s motion to suppress. The State’s Issues One and Two are overruled. E. The Open Air Search In its third issue, the State reminds us that an open-air search by a canine at a traffic stop is not a search under the Fourth Amendment. Indeed, the Court has held that “the use of a welltrained narcotics-detection dog . . . during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Caballes, 543 U.S. at 409. And “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner.” Id. at 408. If the canine search had been conducted while Ronquillo was conducting the actions incident to the purpose for the original stop, Caballes might make this a different case. But we come up against the trial court’s finding that the radio dispatch first confirmed the insurance on the vehicle (which ended the justification for extending the traffic stop). After that, the dog was deployed to perform the open-air search. “Once the reason for the traffic stop has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity, [and] any continued detention must be based on articulable facts which, taken together with rational inferences from 14 those facts, would warrant a man of reasonable caution in the belief that a continued detention was justified.” Simpson v. State, 29 S.W.3d 324, 324 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d). The problem with the State’s case is not that the open-air dog sniff violated the Fourth Amendment, but that the State cannot justify Dominguez’s detention long enough for the dog to arrive and perform the sniff. The State’s third issue is overruled. III. CONCLUSION In sum, Ronquillo was justified in stopping Dominguez for the Jeep’s expired registration. But based on the trial court’s findings of fact, we cannot say that court abused its discretion in concluding Ronquillo lacked reasonable suspicion to continue the detention after the time for the investigation of the traffic offenses and issuance of traffic citations ended. We therefore conclude that the trial court did not err by granting the motion to suppress based on an unreasonably prolonged detention following the initial traffic stop. We remand this case to the trial court for further proceedings consistent with this opinion. August 18, 2022 JEFF ALLEY, Justice Before Rodriguez, C.J., Palafox, and Alley, JJ. 15

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