Opinion issued January 31, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00772-CR ——————————— CLAY RUSSELL JACKSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1267448
MEMORANDUM OPINION
A jury convicted appellant, Clay Russell Jackson, of the first-degree felony
offense of murder and assessed punishment at twenty-six years’ confinement and a $5,000 fine.1 In two issues, appellant contends that (1) the State failed to present
sufficient evidence that he acted with the requisite culpable mental state and (2) the
trial court erred in admitting into evidence a “duplicative” and “prejudicial”
autopsy photograph.
We affirm.
Background
Brian Robinson worked at Houston Car Audio in northwest Harris County
installing car-stereo systems with appellant. Robinson had met a woman named
Anne, the complainant and appellant’s girlfriend, on “a couple” of occasions. One
weekend in October 2007, Anne had spent the day at Houston Car Audio while
Robinson and appellant worked. The following Monday, Robinson arrived at work
to find appellant already there. Robinson told appellant about his weekend, and he
asked appellant if he had done anything that weekend. Appellant told him that he
“didn’t want to know.” In reaction to appellant’s unusual response, Robinson
asked him several more times what had happened. Finally, appellant looked up at
Robinson and said, “I killed her.” Robinson knew that appellant was referring to
Anne, “[b]ecause that was the only person [appellant] was pretty much around at
the time,” but, at first, he thought that appellant and Anne had been in a car
accident, and he asked appellant if that was the case. Appellant instead
1 See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011). 2 demonstrated a choking motion with his hands, and Robinson understood appellant
to mean that he had choked Anne.
Appellant then “basically broke down and started crying.” Robinson asked
appellant what he was going to do, and appellant responded, “I guess get rid of the
body.” Robinson told appellant that, morally, he would not be able to live with
himself, and appellant “continued to break down.” That afternoon, after Robinson
had closed the shop for the day, he received a call from appellant, who asked
Robinson for a ride. Robinson declined to give appellant a ride, but he did go back
to the shop to meet appellant, whose car keys were locked in the shop. Robinson
then asked appellant what his attorney had told him, and appellant responded that
his attorney “basically told him to go home and take the bags off the body and
report a dead body.”2
Robinson received another phone call from appellant later that afternoon.
According to Robinson, appellant was outside his house waiting for the police to
arrive. Appellant told Robinson that he had contacted a mutual friend, Harris
County Sheriff’s Office (“HCSO”) Sergeant D. Polk, explained the situation, and
received another number to call to report Anne’s death. Several days later,
Robinson contacted Sergeant Polk, who drove him to the sheriff’s office to give a
statement.
2 This unnamed attorney does not appear to be the same person as appellant’s court- appointed trial counsel. 3 Sergeant Polk testified that, on October 22, 2007, he received a phone call
from appellant around 4:00 in the afternoon. Sergeant Polk had poor cellphone
reception at the time, and it was difficult for him to hear what appellant was
saying, but he testified that appellant said something about “a dead body” and
something “in reference to his girlfriend.” He stated that he unsuccessfully tried to
obtain further information from appellant about what had happened and that he
advised appellant to call 9-1-1. Sergeant Polk monitored his patrol radio for a little
while after appellant called him, but he did not hear anything related to appellant
over the radio. He subsequently gave a statement to HCSO Sergeant L. Davis, the
homicide investigator assigned to this case, concerning his knowledge of the
situation. Sergeant Polk also testified that, after he gave his statement, Robinson
contacted him and explained what he knew, and Polk took Robinson to the
sheriff’s office to give a statement.
HCSO Deputy R. Mitchell testified that he was dispatched to appellant’s
trailer around 4:00 p.m. on October 22, 2007. Appellant was standing outside his
trailer when Deputy Mitchell arrived, and Mitchell testified that appellant appeared
“shaken, but very blank,” but he did not appear to be upset. Deputy Mitchell asked
appellant what was going on, and appellant responded, “She’s in there,” and
gestured to the trailer. Appellant then unlocked the door for Deputy Mitchell, who
went inside and saw a woman lying on her back on the living room floor. Deputy
4 Mitchell checked for vital signs, but the woman was cold to the touch and had no
pulse. Appellant was not forthcoming regarding what had happened, so Deputy
Mitchell handcuffed him and placed him in the back of his patrol car.
HCSO Investigator M. Quintanilla testified that he arrived at appellant’s
trailer around 6:45 p.m. and began canvassing the neighborhood and interviewing
witnesses. At one point, he was asked to interview a witness at the Litehouse
Icehouse, a nearby bar. There, he spoke with Rebecca Carner, a bartender at the
Litehouse, who provided information about appellant and directed the officers to a
trash bag that appellant had left in the Litehouse dumpster earlier that afternoon.
The trash bag contained a plastic tarp, a pair of latex gloves turned inside out, and
a wadded-up paper towel. Investigator Quintanilla turned the trash bag over to the
crime scene unit officers.
Rebecca Carner testified that she met appellant playing in pool tournaments
at another local bar approximately six months before Anne’s death. Occasionally,
she would see appellant with a woman whom she believed to be appellant’s
girlfriend, and whom she knew only as Annie, and they would sometimes have
drinks at the Litehouse. Carner arrived at the Litehouse around 3:30 p.m. on
October 22, 2007. Appellant was already sitting in his truck in the parking lot
when she arrived. Carner said hello, and appellant told her “that Annie was dead
and he was going to turn himself in and he needed to pay his bar tab.” She testified
5 that appellant “seemed really nervous” and was shaking. As Carner unlocked the
bar, appellant pulled a trash bag out of the bed of his truck and placed it in a
dumpster on the Litehouse property. Appellant paid his bar tab, and he repeated to
Carner that Annie was dead and that he was going to turn himself in. Carner did
not ask for any further information about what had happened.
Appellant stayed at the Litehouse for about five to ten minutes. After he
left, Carner went to the dumpster and found the bag that appellant had tossed in
there. She opened the bag and saw a plastic tarp inside. Carner later spoke with
police officers about her encounter with appellant, and she pointed out the trash
bag to the officers.
Sergeant Davis testified that when he entered the living room of appellant’s
trailer, he saw a woman lying on the floor. In the course of the investigation, he
checked appellant’s trash can and discovered that there was no trash inside, which
struck him as unusual, so he located a dumpster outside the trailer. Sergeant Davis
saw a trash bag in the dumpster that matched the trash bags appellant kept in his
kitchen, and he searched the trash bag. Inside, he found a box for latex gloves and
a purse. Sergeant Davis looked in the purse and found a social security card and a
driver’s license in the name of Anne Betts Green.3 The picture on the driver’s
3 Dr. Morna Gonsoulin, one of the assistant medical examiners who participated in Anne’s autopsy, testified that, after the autopsy, she ran a fingerprint comparison 6 license matched the complainant. Later that evening, Deputy Quintanilla brought
the trash bag that he had recovered from the Litehouse to appellant’s trailer, and
Sergeant Davis looked through that bag as well. In that bag, he found a blue
plastic tarp and a pair of latex gloves that matched the brand of the glove box that
he had found in the trash bag with Anne’s purse.
Sergeant Davis testified that Anne had bruising and discoloration around her
neck and left shoulder. He stated that Anne’s body had a “slight onset of
decomp[osition]” that “wasn’t advanced,” and he came to the conclusion that Anne
might have died that day. On October 23, 2007, the day after police discovered
Anne’s body, Sergeant Davis attended her autopsy. The prosecutor showed
Sergeant Davis State’s Exhibit 52, a picture taken at the medical examiner’s office
depicting a unique medical/legal reference number and a photograph of Anne from
the shoulders up, which displayed her injuries. Sergeant Davis testified that he
recognized Anne and the reference number and that Exhibit 52 depicted “the same
female that [he] had seen [at appellant’s trailer] the night before.” The State then
offered Exhibit 52 into evidence.
Defense counsel stated that he “may not have an objection if [Exhibit 52
was] offered through the medical examiner,” and the prosecutor responded that she
could offer it through the medical examiner, but Sergeant Davis had identified the
and determined that Anne’s name was Anne Green Betts. Because of this discrepancy, we refer to the complainant as “Anne” for the sake of clarity. 7 person depicted in Exhibit 52 “as being the same person he saw [at the murder
scene].” Defense counsel then stated that Sergeant Davis’s testimony was
unnecessary and that the photograph was not needed to establish identity. The
prosecutor replied that it had not been established that “the same person at the
house was the one that they autopsied.” Defense counsel then clarified his
objection: “Under Rule 403, that the prejudicial nature of the photograph
substantially outweighs any probative value it has. That all it will do is—it’s
duplicitous [sic] or will be duplicitous of any further testimony and I object to it for
that reason.” The trial court overruled the objection and admitted Exhibit 52. The
trial court also admitted eight photographs of the crime scene and four photographs
from Anne’s autopsy. Defense counsel did not object to the admission of any of
these pictures.
Sergeant Davis testified that he was not able to determine what weapon had
been used to murder Anne, but it could have been hands or some other object
placed around her neck. He formed the opinion that Anne had died as a result of
strangulation.
Former HCSO Investigator S. Grounds, with the crime scene unit, testified
that she collected a box of Playtex gloves from a dumpster near appellant’s trailer
and a pair of Playtex gloves from a dumpster at the Litehouse. Investigator
Grounds also obtained a DNA sample from appellant via a buccal swab. Mark
8 Powell, with the Harris County Institute of Forensic Sciences, conducted DNA
testing on the gloves found in the Litehouse dumpster. He testified that appellant
could not be excluded as a contributor to the DNA found on the gloves. Powell
also testified that he tested the tarp found in the Litehouse dumpster, which had a
blood stain on it, and he obtained a DNA profile consistent with Anne’s DNA
profile.
Dr. Morna Gonsoulin, a medical examiner at the Harris County Institute of
Forensic Sciences, testified that she participated in performing Anne’s autopsy.
Dr. Gonsoulin testified that Anne’s body “appeared to have undergone some
changes of decomposition” before the time of the autopsy. She estimated that
Anne had probably been dead for around twenty-four hours. Dr. Gonsoulin also
testified that Anne had injuries and bruising on the left side of her neck, including
internal hemorrhaging in her neck muscles, and that Anne also had petechial
hemorrhages in her right eye, which, she testified, is usually indicative of an
“asphyxia cause of death.” Anne had minor bruising on her scalp, and she did not
have any injuries to her hands.4 Dr. Gonsoulin testified that her office ruled the
cause of Anne’s death as asphyxia due to strangulation.
The jury found appellant guilty of murder and assessed punishment at
twenty-six years’ confinement and a $5,000 fine.
4 HCSO Investigator G. Clayton, with the crime scene unit, testified that he photographed appellant at the scene and that appellant had no visible injuries. 9 Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence of the requisite culpable mental state for murder.5
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
5 Appellant challenges both the legal and factual sufficiency of the evidence. In Brooks v. State, the Court of Criminal Appeals overruled Clewis v. State and its progeny and held that evidence is to be reviewed solely under the sufficiency standard described in Jackson v. Virginia. 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (“[W]e decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element . . . beyond a reasonable doubt.”); Ervin v. State, 331 S.W.3d 49, 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding in Brooks). 10 v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury’s determinations of credibility. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
B. Requisite Culpable Mental State for Murder
To establish that appellant committed murder, the State was required to
prove that appellant either intentionally or knowingly caused Anne’s death by
strangling her with his hands or an unknown object or intended to cause serious
bodily injury and committed an act clearly dangerous to human life that caused
Anne’s death. See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011). A
defendant acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
11 engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2011). A
defendant acts knowingly, or with knowledge, with respect to the nature of his
conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist. Id. § 6.03(b). A defendant
acts knowingly or with knowledge with respect to a result of his conduct when he
is aware that his conduct is reasonably certain to cause the result. Id. Intent may
be inferred from circumstantial evidence such as the appellant’s acts, words, and
conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004);
Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d). Intent may also be inferred from the use of a deadly weapon, unless it
would not be reasonable to infer that death or serious bodily injury could result
from use of the weapon. See Dominguez, 125 S.W.3d at 761 (citing Jones v. State,
944 S.W.2d 642, 647 (Tex. Crim. App. 1996) and Ahrens v. State, 43 S.W.3d 630,
634 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)). The jury may also infer
intent from the extent of the complainant’s injuries. Patrick v. State, 906 S.W.2d
481, 487 (Tex. Crim. App. 1995).
We first observe that, although appellant argues that the State had to
establish that he intended to kill Anne, neither the indictment nor the jury charge so
required. Instead, under the indictment and the charge, the State had to establish
that appellant intentionally or knowingly caused Anne’s death or that he intended
12 to cause serious bodily injury and committed an act clearly dangerous to human
life that caused Anne’s death. Because the charge authorized the jury to convict on
alternative theories, we will uphold the verdict if the evidence was sufficient on
any one of the theories. See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App.
2005).
The State presented evidence that appellant confessed to Robinson that he
had killed Anne, and when Robinson questioned how she died, appellant held his
hands in a choking position. Anne had significant bruising to the left side of her
neck, petechial hemorrhages in her eyes, and internal hemorrhages in her neck
muscles, and the medical examiner concluded that her cause of death was
asphyxiation by strangulation. When Robinson asked appellant what he was going
to do, appellant responded, “I guess get rid of the body.” The State presented
evidence that, before appellant ultimately decided to call 9-1-1, he attempted to
cover up Anne’s death by throwing away her purse with her identification
information and disposing of a tarp, which had blood consistent with Anne’s DNA
profile on it, and latex gloves at a different location from her purse.
Although appellant did not explicitly tell Carner that he “killed Anne,” as he
told Robinson, he told her that Anne was dead, that he needed to pay his bar tab,
and that he was going to turn himself in, suggesting that he was responsible for
Anne’s death. The State also presented evidence that appellant did not have any
13 visible wounds or injuries on him, nor did Anne have any injuries on her hands,
indicating that they were not involved in a physical fight when Anne died.
When viewing this evidence in the light most favorable to the verdict, we
conclude that a rational jury could have determined that appellant caused Anne’s
death either intentionally or knowingly, or, at the least, that he intended to cause
serious bodily injury and committed an act clearly dangerous to human life—
namely, choking her—that resulted in Anne’s death. See Adames, 353 S.W.3d at
859; Guevara, 152 S.W.3d at 50 (inferring mental state from defendant’s acts,
words, and conduct). We therefore hold that the State presented sufficient
evidence that appellant possessed the requisite culpable mental state to support a
conviction for murder.
We overrule appellant’s first issue.
Admission of Evidence
In his second issue, appellant contends that the trial court erred in admitting
into evidence an autopsy photograph because it was unnecessary after Sergeant
Davis testified that the autopsy was performed on the same woman he had
observed at the crime scene.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v.
14 State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of a
photograph is within the sound discretion of the trial judge.”). We will not reverse
the trial court’s ruling unless the ruling falls outside the zone of reasonable
disagreement. Torres, 71 S.W.3d at 760. In applying the abuse of discretion
standard, we may not reverse a trial court’s admissibility decision solely because
we disagree with it. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
We will not disturb a trial court’s evidentiary ruling if it is correct on any theory of
law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).
The first step in determining whether evidence should be admitted is
whether the evidence is relevant. See Montgomery v. State, 810 S.W.2d 372, 375
(Tex. Crim. App. 1990). Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID.
401. Generally, a photograph is admissible if verbal testimony as to matters
depicted in the photograph is also admissible. Gallo, 239 S.W.3d at 762 (citing
Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997)). In Gallo, a
capital murder case, the Court of Criminal Appeals held that “[a] visual image of
the injuries appellant inflicted on the victim is evidence that is relevant to the
jury’s determination.” Id. The fact that the jury also hears testimony regarding the
15 depiction in the photograph “does not reduce the relevance of the visual depiction.”
Id.
Rule of Evidence 403 provides that evidence, although relevant, “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403.
Rule 403 “favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial.” Gallo, 239 S.W.3d at
762. A proper Rule 403 analysis includes, but is not limited to, the following
factors: (1) the probative value of the evidence; (2) the potential to impress the
jury in some irrational, yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the evidence. Prible v. State, 175
S.W.3d 724, 733 (Tex. Crim. App. 2005). Rule 403 requires that the photograph
have some probative value and that its probative value not be substantially
outweighed by its inflammatory nature. Williams v. State, 301 S.W.3d 675, 690
(Tex. Crim. App. 2009).
“Autopsy photographs are relevant to show the identity of the victim and the
manner and means of death. These photographs are admissible under rule 403
even if they merely corroborate other kinds of evidence.” Moreno v. State, 1
S.W.3d 846, 857 (Tex. App.—Corpus Christi 1999, pet. ref’d); see also Williams,
16 301 S.W.3d at 690 (holding that autopsy photographs are generally admissible
unless they depict mutilation of victim caused by autopsy itself); Sonnier v. State,
913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (“A trial court does not err merely
because it admits into evidence photographs which are gruesome.”).
Here, the prosecutor showed Sergeant Davis Exhibit 52, a picture of Anne
taken by the medical examiner’s office and displaying both her injuries and the
particular medical/legal reference number, and she asked him if he recognized the
individual depicted in the photograph and whether the reference number matched
the autopsy that he attended. When the State offered this exhibit, defense counsel
initially objected that the photograph was not being offered through the medical
examiner. The prosecutor responded that photograph was necessary for Sergeant
Davis to identify Anne, and defense counsel then argued that Davis’s testimony
was unnecessary and could “cause confusion of the issues.” Defense counsel
clarified his objection: “Under Rule 403, that the prejudicial nature of the
photograph substantially outweighs any probative value it has. That all it will do
is—it’s duplicitous [sic] or will be duplicitous of any further testimony and I object
to it for that reason.” The trial court overruled the objection and admitted the
photograph.
Appellant argues that the photograph was irrelevant and lacked probative
value because Sergeant Davis identified Anne without the photograph and testified
17 to that effect. Appellant does not argue that the eight crime-scene and four
additional autopsy photographs also admitted by the trial court into evidence
rendered Exhibit 52 duplicative and unnecessary. As the Court of Criminal
Appeals noted in Gallo, “A visual image of the injuries appellant inflicted on the
victim is evidence that is relevant to the jury’s determination. The fact that the
jury also heard testimony regarding the injuries depicted does not reduce the
relevance of the visual depiction.” 239 S.W.3d at 762. The State offered Exhibit
52 for the purpose of establishing that the woman Sergeant Davis had identified as
Anne at appellant’s trailer was the same woman whose autopsy he attended, and
Davis identified the medical/legal reference number visible in Exhibit 52 as the
particular number applicable to this case. See Dams v. State, 872 S.W.2d 325, 327
(Tex. App.—Beaumont 1994, no pet.) (“The victim’s mother identified the subject
of the exhibit in question [an autopsy photograph] as Linda Gayle Maddux, and the
assistant medical examiner identified it as a photograph of the person upon whom
he performed the autopsy through which the State proved cause of death. The
exhibit was relevant.”).
There was no error in the trial court’s admission of the photograph in
addition to the admission of Sergeant Davis’s testimony. See Gallo, 239 S.W.3d at
762; see also Youens v. State, 742 S.W.2d 855, 862 (Tex. App.—Beaumont 1987,
pet. ref’d) (“[S]ince Dr. Parungao could have described what he saw to the jury, a
18 photograph showing what he saw was also properly admitted. In addition, there is
no error in admitting a photograph where, as here, there is testimony admitted
without objection showing the same thing.”). The fact that the State offered the
photograph in addition to Sergeant Davis’s testimony stating that the autopsy
depicted in Exhibit 52 was performed on the same woman he had observed at the
crime scene does not destroy the probative value of the photograph. See Gallo,
239 S.W.3d at 762; Dams, 872 S.W.2d at 327. The photograph was still relevant
evidence. See Moreno, 1 S.W.3d at 857 (holding that autopsy photographs are
admissible under Rule 403 “even if they merely corroborate other kinds of
evidence”); Macias v. State, 959 S.W.2d 332, 338 (Tex. App.—Houston [14th
Dist.] 1997 pet. ref’d) (“Plainly State’s exhibits 11 through 15 [depicting skeletal
remains and clothing found at murder scene] were relevant to the State’s case at
the guilt-innocence phase because they helped to prove complainant’s identity.
Likewise, State’s exhibits 16 through 19 were relevant to establish the cause of
death.”).
We conclude that the trial court did not abuse its discretion in admitting
State’s Exhibit 52.
We overrule appellant’s second issue.
19 Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).