In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00346-CR NO. 09-21-00347-CR NO. 09-21-00348-CR NO. 09-21-00349-CR __________________
ROY WELTON KIRTLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause Nos. 19-12-17066-CR, 21-04-04794-CR, 19-12-17068-CR, and 19-12-17067-CR __________________________________________________________________
MEMORANDUM OPINION
To resolve the issues in this appeal we must decide whether the
trial court erred in failing to charge the jury on two defenses that the
Appellant, Roy Welton Kirtley, argues were raised by the evidence in his
trial. In issue one, Kirtley argues the trial court erred by failing to
1 instruct the jury on his defense of property claim, instructions that relate
to Kirtley’s theory that the evidence shows he was justified in using force
when he sought to retrieve money in a zip-up bag from his then
girlfriend—call her Farah—who had snatched the bag from out of his
hand.1 In issue two, Kirtley argues the trial court erred in failing to
submit his necessity defense in the case involving his conviction for
illegally possessing a firearm. His argument depends on the theory that
even though Kirtley as a convicted felon couldn’t possess a gun, he needed
to retrieve a pistol from another bedroom to defend himself from Farah’s
sixteen-year-old son, who had fled from the master bedroom after
stabbing Kirtley in the arm with a knife. 2
As to Kirtley’s first issue, we conclude that after considering the
entire record, Kirtley, was not actually harmed by the omission of his
defense-of-property theory in the charge. As to issue two, we note that
1 Tex. Penal Code Ann. § 9.41 (Protection of One’s Own Property). As for the names of the alleged victims of the assaults, which led to the appellant’s convictions, we have used pseudonyms to protect their privacy. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect to the victims’ dignity and privacy throughout the criminal justice process”). 2 Tex. Penal Code Ann. § 9.22 (Necessity); id. § 46.04 (Unlawful Possession of a Firearm). 2 necessity is a confession and avoidance defense, which requires the
defendant to have admitted engaging in the conduct before benefitting
from a charge that includes instructions on a necessity claim. Because
the record doesn’t show Kirtley ever admitted he was in possession of a
firearm, we hold the trial court did not err in refusing to charge the jury
on Kirtley’s necessity defense.
We will affirm.
I. Background
A. The assault that led to the fourth indictment, which alleges that Kirtley choked Farah (family strangulation).
In two issues, Kirtley asks the Court to reverse and remand two of
the four judgments from which he appealed, the judgment for assaulting
Farah by hitting her with his hand (trial court cause number 21-04-
04794-CR), and the judgment on his conviction for unlawfully possessing
a firearm (trial court cause number 19-12-17068-CR).
The following discussion of the evidence views the evidence in the
light that is most favorable to the jury’s verdict. 3 When viewed in that
light, the evidence shows that in December 2019, Kirtley was living with
3 Couthren v. State, 571 S.W.3d 786, 789 (Tex. Crim. App. 2019).
3 his then girlfriend, Farah, in Magnolia, Texas. There were four others
living in the home in December 2019: (1) Farah’s son, Chip, a “repo
driver” who was at work when the altercation occurred; (2) Farah’s
sixteen-year-old son, David, who was asleep on a couch in the living room;
(3) David’s seventeen-year-old friend, Jake, who was also asleep in the
living room; (4) and a nineteen-year-old teenager, Julian, who was
listening to music in his bedroom in the home. Julian testified that based
on his relationship with Farah’s sons, Farah treated him as a member of
her family.
During the trial, Farah testified that Kirtley didn’t come home on
December 19, 2019, until around 4:30 a.m. According to Farah, when she
woke up that morning, she saw Kirtley and told him he was late for work.
Then, she took Kirtley’s phone into the bathroom. When she examined
the messages on his phone, she found texts and pictures, leading her to
believe that Kirtley had been with other women.
That discovery, along with what Farah described as a relationship
that had been rough, led to an argument. During the argument, Farah
told Kirtley she was ending the relationship. Farah also told Kirtley that
he needed to leave. Kirtley responded, Farah said, by yelling and
4 screaming. According to Farah, “that’s when he [ ] shoved me up against
the wall.” Farah testified that when Kirtley had her pinned to the wall,
he put his hands around her neck and choked her until she became dizzy
and thought she was about to pass out.
David and Jake, who both testified in the trial, explained they were
in the living room and asleep when they heard Farah and Kirtley arguing
in their bedroom. Both testified that when they entered the bedroom
Farah and Kirtley shared, they saw Kirtley holding Farah against the
wall, choking her with his hands.
David testified that because he was afraid Kirtley would “end
up…hurting [Farah] really bad,” he grabbed a knife and stabbed Kirtley
in the arm. David explained that Farah then pushed Kirtley off of her
and onto the bed. David added that Kirtley then cursed and threatened
to kill them all. David, Jake, and Farah left the bedroom and entered the
living room. From there, David and Jake left the house through the front
door after they heard a gun go off in the hall. Police recovered a recording
from the front dash-camera of Chip’s truck, which Chip had left parked
facing the steps near the front stairs of Farah’s home. Police also
recovered footage from a camera in Chip’s truck that shows what
5 occurred from behind. Footage from both cameras was admitted into
evidence in the trial.
When David and Jake opened the front door of the house, they are
seen in the video running off the porch. Both video recordings have audio,
and the recordings capture Kirtley hitting Farah with his hand outside
Farah’s home.
B. The third indictment, which alleges that on or about December 20, 2019, and before the fifth anniversary of being released from his confinement on a felony conviction Kirtley intentionally or knowingly possessed a firearm.
Kirtley argues the jury heard some evidence from which it could
have inferred that Kirtley feared David stabbing him again, noting that
David never testified “he would not have stabbed [Kirtley] again if he
attempted to choke or otherwise assault [Farah] in his presence[.]” That
said, the issue Kirtley raises in his appeal is that the trial court didn’t
instruct the jury on a defense of necessity in the case resulting in his
conviction for illegally possessing a firearm; Kirtley did not raise a claim
of self-defense to the indictment charging him with illegal possession of
a firearm. As we explain below, the evidence before the jury did not show
that Kirtley ever admitted possessing a gun.
6 The first police officer on the scene was Trooper Brit Lopez, a
highway patrolman employed by the Texas Department of Public Safety.
Trooper Lopez was assigned to patrol the area around Magnolia, Texas,
in December 2019. When he arrived, Lopez noticed that Kirtley had “a
bunch of blood” on the sleeve of his shirt. According to Trooper Lopez,
when he saw Kirtley he placed a tourniquet on Kirtley’s right arm, but
before doing so, he said, he “made sure” Kirtley didn’t have a gun.
Importantly, we find nothing in the evidence before the jury that
shows Kirtley ever admitted to having a gun. Instead, the record shows
Kirtley pleaded not guilty to the charge, and he didn’t testify in his trial.
Thus, the question is whether there is something else, such as footage
from a body camera worn by the officer who interviewed Kirtley at the
scene that shows Kirtley possessed a firearm on or about December 20,
2019, as alleged in the indictment.
During the investigation conducted by the police, Kirtley denied
owning a gun. Trooper Lopez’s body-cam footage shows that when he
approached Kirtley, he asked “Where’s the gun at? Be honest with me,
you know we’re going to find it.” While sitting on the ground, Kirtley
responds: “What gun?” Then, Trooper Lopez said: “You didn’t pull a gun
7 out?” Kirtley answered: “I don’t own a gun.” After that, Kirtley gave
Trooper Lopez his account about what happened in the home. In the
body-cam footage, Kirtley admits hitting Farah when the two of them
argued, but he never admits in the recordings admitted into evidence or
in any other evidence before the jury that he had a gun.
Jacob Currington, a deputy employed by the Montgomery County
Sherriff’s office, found Kirtley’s pistol after spotting it through a hole in
a fence dividing Farah’s property from the property next door. When
Currington was called by the State, he testified he “did not” interview
Kirtley. On cross-examination, Kirtley’s attorney asked Deputy
Currington: “Now, when you were on the scene, did you ever see Roy
Kirtley in possession of a firearm?” Deputy Currington responded that
he did not.
Kirtley rested without calling any witnesses. In closing argument,
Kirtley’s attorney didn’t argue that Kirtley possessed a firearm.4
4 Kirtley’s attorney didn’t make an opening statement. 8 C. The assault that led to the first indictment, which alleges that Kirtley threatened Julian with a deadly weapon.
Julian, who also testified in the trial, explained that when he heard
the commotion in Farah’s and Kirtley’s room from his bedroom, he looked
out from his bedroom door into the hallway to see what was going on. He
noticed Kirtley in the hall. Julian testified that when he stepped into the
hall, he saw Kirtley coming toward him with a pistol in his hand. Julian
added that when Kirtley approached him, Kirtley said: “[Y]ou want some,
you want some[?]” Then, Kirtley fired the pistol, but the bullet struck the
floor near Julian’s foot. Kirtley ran out of the house through a back door.
Then, Julian then ran out of the house and also went into the back yard.
According to Julian, Kirtley turned around and shot toward him “two or
three more times.” According to Julian, he then ran “toward the front
yard.”
D. The second indictment, which charges Kirtley with the assaulting Farah by hitting her with his hand.
After Kirtley fired the pistol in the hallway, David and Jake fled
the house through the front door and crossed the street. From there,
David called the police. The dash-cam footage from Chip’s truck shows
what happens at Farah’s house in the next approximately nine minutes
9 outside Farah’s house on her front porch and in her front yard. Farah
(when in view of the camera) spends part of her time talking on her
cellphone, either in her front yard or inside the house. At trial, Farah
testified she was talking to Chip on the phone. When Kirtley and Farah
are on the front porch and standing near the front door, Kirtley hit Farah
in the head with his hand.
Subsequently, Kirtley is seen in the recording standing near Chip’s
truck with a small bag his hand. Farah walked toward him and told her
“give me my money” six times before she snatched the small bag out of
his left hand. He responds, hitting Farah on the right side of her head
with his left hand. Some of Kirtley’s statements in the recording are not
audible in the footage taken from Chip’s truck, but the recording
captured the altercation the two of them had over the bag Kirtley was
holding in his hand.
After Kirtley hit Farah in the face, Farah repeatedly said: “Get
away, just leave the property.” After Kirtley hit Farah, she still has the
zip-up bag in her hand. It also doesn’t appear that Kirtley made any
further effort to recover the bag. Instead, he cursed Farah repeatedly,
complaining about her son David. He responds to her demand that he
10 leave, saying: “You want to take every dollar I got and then leave the
property?” To be sure, on direct examination the prosecutor asked Farah
whether she remembered why Kirtley “was trying to take your money?”
Farah answered: “Because he said it was his.”
In his brief, Kirtley agrees that the jury could have found him guilty
of assaulting Farah with his hand based on the evidence the jury heard
for either the assault on the porch or the assault when he hit her after
she snatched the small bag from his left hand. Kirtley also agrees that of
these two assaults, only the second is relevant to his defense-of-property
claim. That said, Kirtley suggests that because the jury could have
convicted him of committing either assault, he had a right to have the
jury instructed on his claim that he was justified in using reasonable
force to recover his money from Farah after she snatched the zip-up bag
from his hand.
As mentioned, Kirtley didn’t testify in the trial. Only two of the
State’s witnesses—Farah and Jake—addressed who the money belonged
to that Kirtley and Farah were fighting over during the trial. On direct
examination, the prosecutor asked Farah: “Whose money [(referring to
the money in the zip-up bag in the recording)] was that?” Farah
11 answered: “It was mine.” Farah also described the bag they were fighting
over as a “Michael Kors zip-up bag.” According to Farah, the zip-up bag
was in her purse in the master bedroom when Kirtley took it. Farah
testified Kirtley removed the bag from her purse without her permission.
Jake (David’s friend) testified the zip-up bag was “her money
bag[.]” According to Jake, he knew the bag belonged to Farah because
when “she cashed a check, that’s the money that she would give us money
out of.”
The record shows the jury heard testimony that Kirtley admitted
hitting Farah at least twice on December 20. First, Kirtley admitted
hitting her in the footage the jury viewed that was from Trooper Lopez’s
body camera. Second, Lopez’s attorney admitted Kirtley struck Farah in
closing argument. He said: “The video shows [Kirtley] hitting [Farah]
after [Farah] steals, what is in dispute, the moneybag.”
When the parties rested, Kirtley asked the trial court to instruct
the jury on two defenses: (1) his claim that he had a right to protect his
property (the money in the zip-up bag) from being taken by Farah; and
(2) his claim that despite his status as a felon, it was necessary under the
circumstances that he have a firearm because David had stabbed him
12 with a knife. The trial court overruled Kirtley’s requests. After
deliberating on its verdict, the jury found Kirtley guilty of committing the
four felonies, as charged in the indictments.
Kirtley appealed all four convictions, but then challenged only two
of the convictions in his brief: (1) the judgment in trial court cause
number 21-04-04794-CR, the conviction tied to Kirtley’s indictment for
striking Farah with his hand;5 and (2) the judgment in trial court cause
number 19-12-17068-CR, the conviction tied to Kirtley’s indictment for
illegally possessing a firearm.6
In his first issue, Kirtley complains that on his conviction for
assaulting Farah with his hand, the trial court erred in failing to instruct
the jury on his defense of property claim. In his second issue, Kirtley
argues that in his conviction for illegally possessing a firearm, he was
harmed because the trial court failed to instruct the jury on his necessity
defense.
5Id. § 22.01(b)(2)(A). 6 Id. § 46.04(a)(1). Kirtley didn’t challenge his convictions under indictments charging him with the two felony-aggravated assaults, the judgment in trial court cause number 19-12-17066-CR (the judgment based on his conduct for shooting at Julian), and the judgment in trial court cause number 19-12-17067-CR (the judgment based on his conduct for choking Farah). 13 Because we conclude that Kirtley’s issues lack merit, we will affirm.
II. Standard of Review
Unless a defendant pleads guilty, the trial court in a criminal trial
must provide the jury with “a written charge distinctly setting forth the
law applicable to the case[.]” 7 Under Texas law, the “defendant is entitled
to an instruction on any defensive issue raised by the evidence, whether
that evidence is weak or strong, unimpeached or contradicted, and
regardless of how the trial court views the credibility of the defense.” 8 For
that reason, instructing the jury on a “defense is supported (or raised) by
the evidence if there is some evidence, from any source, on each element
of the defense that, if believed by the jury, would support a rational
inference that that element is true.” 9 In determining whether the
evidence admitted in a trial raises a defense, we view the evidence in the
light most favorable to the defendant’s request that the trial court
provide the jury with instructions on the claimed defense.10 When
conducting our review, the reviewing court relies on its “judgment,
7Tex. Code Crim. Proc. Ann. art. 36.14. 8Maciel v. State, 631 S.W.3d 720, 723 (Tex. Crim. App. 2021) (cleaned up). 9Id. 10Id.
14 formed in the light of its own common sense and experience, as to the
limits of rational inference from the facts proven” in the trial. 11
Kirtley argues the evidence before the jury required the jury to
provide the jury instructions on his defense of necessity and his defense
that he it was his money that he trying to recover from Farah. The
question is whether there is some evidence raising one or both defenses.
If not, we will affirm. If so, we must then determine whether the trial
court’s error harmed Kirtley after applying the “some harm” standard.12
When reviewing a record for “some harm,” the harm that results to
the defendant from the error must be “actual, rather than merely
theoretical.”13 In evaluating for harm, a reviewing court considers these
four factors when assessing whether the omission of the proper
instructions led to causing the defendant to suffer some harm: “(1) the
entire jury charge, (2) the state of the evidence, (3) the jury arguments,
11Id. 12Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003); see
also Tex. Code Crim. Proc. Ann. art. 36.19. 13Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
(cleaned up). 15 and (4) if applicable, any other relevant information as revealed by the
record as a whole.” 14 “Neither party bears the burden to show harm.” 15
III. Defense of Property
Under Texas law, a person may be justified in using force to recover
their property if there is some evidence admitted during the trial that
raises a defense on a protection-of-property defense. Kirtley’s claim is
that Farah wrongfully took money from him that rightfully belonged to
him, and he immediately responded by using reasonable force when he
tried to take it back. Under Texas law:
A person unlawfully disposed of land or tangible, moveable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to . . . recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor. 16
14 Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022). 15 Id. 16Tex. Penal Code Ann. § 9.41(b).
16 In Kirtley’s first issue, he argues the trial court erred in failing to
instruct the jury that he had the right to use reasonable force in
retrieving what the jury could have reasonably concluded was his money
in the zip-up bag from Farah after Farah took it from him without his
consent. Kirtley, however, didn’t testify in his trial, so he ties his claim of
ownership to Farah’s testimony that “he said it was his.” He also argues
that there is evidence that he had more money in the house in a safe,
which he didn’t take that day. We disagree with Kirtley, however that
the jury heard any testimony that the money in the safe belonged to him.
To the contrary, the only testimony we find in the record about that
money is Farah’s, and she testified the money in the safe was money that
she “was saving.”
That said, while weak, we concede that Farah’s testimony amounts
to some evidence from which some jurors could have reasonably
concluded the money in the zip-up bag was Kirtley’s. The footage from
Chip’s truck didn’t record every word of what Kirtley and Farah said to
one another that morning, so Farah’s admission that Kirtley claimed the
money was his is some evidence that it was his money. When trial courts
are deciding whether an instruction is required on a defense, they must
17 submit an issue on the defense if the evidence raises the defense whether
that evidence is strong, weak, impeached, or contradicted, and even if the
trial court doesn’t think the testimony is “worthy of belief.”17
Kirtley’s response to having the zip-up bag taken from him was
immediate, as the recording shows he immediately hit Farah when she
took the bag. On this record, the evidence raises a fact issue on whether
the money was Kirtley’s and whether the force he used was reasonable.
Consequently, the trial court should have allowed the jury to instruct the
jury on the elements of Kirtley’s defense-of-property claim. Having found
error, we now must determine whether Kirtley suffered some harm. We
conclude the answer is no for these five reasons.
First, the evidence that Kirtley believed the money belonged to him
was weak, at best. Kirtley argues that even though he didn’t testify the
money was his, the jury could have inferred that it was because Farah
testified that she thought he was trying to take the money from her
because he said, “it was his.” But the recording from Chip’s dash-cam
video doesn’t show that’s what Kirtley said. What he said was: “You want
17 Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007); Johnson v. State, 271 S.W.3d 359, 362 (Tex. App.—Beaumont 2008, pet. ref’d). 18 to take every dollar I got and then leave the property[.]” In our opinion,
that statement is much more ambiguous about whether Kirtley was
making a direct claim about the money in the zip-up bag, or whether the
statement was instead just a general observation about how he wouldn’t
be left with much if he had to leave. Farah may have interpreted the
attorney’s question as one asking her about her state of mind, why she
thought he was claiming it was his money rather than asking her to
testify about what he said.
Second, only two witnesses—Farah and Jake—testified about who
the money belonged to in the zip-up bag. At trial, Farah, an assistant
manager at a gas station, told the jury the zip-up bag was hers, and the
money in it came from the money she had worked for. When Jake
testified, he told the jury that when Farah cashed checks, she placed the
money in the zip-up bag. Jake added that when he or David would then
need some money, Farah took money from the zip-up bag and gave it to
them. Jake also testified that Kirtley never put any of his money in the
zip-up bag. When Kirtley’s attorney asked Jake whether Kirtley hit
Farah because he “had been stabbed with a deadly weapon and . . . been
robbed[,]” Jake answered: “Well, it wasn’t his money. So no, sir.”
19 Third, the overwhelming evidence at trial shows that when Kirtley
hit Farah in the head after she snatches the zip-up bag from him, he isn’t
trying to recover the bag. After Kirtley hit Farah, he doesn’t reach for the
bag. When Farah staggers back from Kirtley’s blow, she still has the zip-
up bag in her hands. After that, Kirtley approached Farah several more
times, continued to curse her, and she continued demanding that he
leave. In the footage from the recording, Kirtley never demands that
Farah turn “his” money over to him. After Farah take the zip-up bag from
him, he made no further effort to recover what he claims was his. Kirtley
also didn’t leave the property but he there until the police arrived. Had
the money belonged to Kirtley as he claimed, he fails to explain why he
didn’t make any further effort to recover the money since his first attempt
failed, and he and Farah were still there.
Fourth, the assault Kirtley challenges is the last of four assaults
that the evidence shows Kirtley committed that day. The three prior
assaults involved one that occurred in the bedroom, where Kirtley choked
Farah, one in the hall, where he shot a gun at Julian, and one on the
porch where Kirtley hit Farah in the head. Thus, the context of Kirtley’s
20 behavior as it relates to the zip-up bag is that his conduct was about
injuring Farah, not his desire to recover money from her that day.
Fifth, Kirtley agrees the evidence shows that when he and Farah
were on the porch standing near the door, he hit Farah in the head with
his hand. He agrees the evidence in his trial shows the jury could have
convicted him of committing the assault under the indictment in trial
court cause 21-04-04794-CR based on the evidence tied to the assault on
the porch. The record shows the State argued the jury could convict him
for the assault on the porch or the assault in the yard. Thus, the evidence
in Kirtley’s trial supports an independent theory of conviction on which
Kirtley’s defense-of-property theory doesn’t apply.
Having carefully reviewed the entire record, we conclude the trial
court’s error in omitting defense-of-property instructions from the charge
were harmless. On this record, Kirtley claim he was harmed is
theoretical, not actual. For that reason, we conclude that Kirtley has not
shown he suffered “some harm.”18 We overrule Kirtley’s first issue.
18Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op.
on reh’g). 21 IV. Necessity Instruction
In his second issue, Kirtley complains that on his conviction for
unlawfully possessing a firearm as a felon, the trial court erred in failing
to instruct the jury on his necessity defense because “[s]ufficient evidence
and testimony were produced at trial that created a question of whether
Appellant reasonably believed his conduct with a firearm was
immediately necessary to avoid imminent harm after being stabbed with
a knife.” Specifically, Kirtley argues “[t]here is a question of fact for the
jury as to whether Appellant was justified in possessing a firearm from
future assaults by [David] with a knife.”
As to the defense of necessity, the Penal Code provides:
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. 19
19Tex. Penal Code Ann. § 9.22.
22 “The legislature has not excluded the justification of necessity as a
defense to the offense of possession of a firearm by a felon.” 20
“Necessity is a confession-and-avoidance defense requiring the
defendant to admit his otherwise illegal conduct.”21 “To be entitled to a
defensive instruction for necessity, a defendant must put on evidence
that essentially admits to every element of the offense, including the
culpable mental state.” 22 “In other words, a defendant cannot both invoke
necessity and flatly deny the charged conduct.” 23
Kirtley denied owning a gun during the investigation conducted by
police, pleaded not guilty to the indictment for illegal possession of a
firearm, and our review of the record reflects there was no evidence
admitted in his trial that he possessed a gun. At trial, Kirtley’s attorney
never admitted Kirtley possessed a firearm, waiving opening statement
and in closing the attorney never said anything about Kirtley having
possessed a gun. On this record, we conclude Kirtley wasn’t entitled to
invoke a necessity defense. We overrule Kirtley’s second issue.
20Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992). 21 Maciel, 631 S.W.3d at 723. 22 Id. (cleaned up). 23 Id. 23 Conclusion
Having overruled Kirtley’s issues, we affirm the trial court’s
judgments in trial court causes 09-21-00346-CR, 09-21-00347-CR, 09-21-
00348-CR, and 09-21-00349-CR.
AFFIRMED.
HOLLIS HORTON Justice
Submitted on June 28, 2023 Opinion Delivered September 13, 2023 Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.