Case of the Week Archive

Kent v. State

In an aggregated theft case under Penal Code §31.03, the jury be unanimous, not only as to the total amount stolen from all victims, but also as to the owner and amount of each alleged incident of theft that makes up the aggregated amount. In a case of first impression, the court held that each individually alleged instance of theft is an element of the crime upon which the jury must unanimously agree. When an aggregate theft offense is predicated on §31.03, the jury must unanimously agree about what property was unlawfully appropriated. Read the opinion.

 

Tata v. State (1st COA)

When an arson investigation was conducted in a house used as a daycare soon after the fire had been extinguished, evidence collected in a part of the house that was not damaged by the fire was not subject to suppression. Three factors used by the Supreme Court to analyze the constitutionality of warrantless entry are: 1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; 2) whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and (3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. All three factors weighed against suppression in this case because the house was used as a daycare, the investigation happened promptly after the fire had been extinguished, and the object of the investigation was to determine the cause of the fire. Read the opinion.

Forsyth v. State (11th COA)

1) Implied consent is not the equivalent of voluntary consent for the purposes of establishing an exception to the warrant requirement of the Fourth Amendment. At least when a defendant refuses to submit to a breath test, that person cannot be said to have freely and voluntarily consented to the search. Language to the contrary from the Court of Criminal Appeals in Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. 1988) establishes only that implied consent makes it illegal to refuse a breath or blood test under specific circumstances, and language from Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) specifically stating that implied consent permits warrantless blood draws in Texas is only dicta. Finally, a footnote in Missouri v. McNeely, 133 S.Ct. 1552 (2013) that appears to endorse Texas’ implied consent statute does not go so far as to approve of warrantless searches under those laws, but it does imply that implied consent can be withdrawn.

2) Warrantless searches under Texas’ “third-strike” implied consent statute are not presumptively reasonable. Warrantless searches are presumed unreasonable and must be evaluated on a case-by-case basis. To do otherwise creates a per se exception to the warrant requirement, which is prohibited by McNeelyRead the opinion.

Klemisch v. State (7th COA)

The defendant's misdemeanor charge was not barred by limitations when the defendant was indicted a month after his arrest for felony marijuana possession in a school zone, and the prosecution dismissed that indictment two years later and charged him with misdemeanor possession when it became apparent there was a problem with the school-zone allegation. The statute of limitations was tolled by the indictment, and the information contained a paragraph correctly stating that fact. Read the opinion.

 

Riley v. California

The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested, unless the facts create an exception to the warrant requirement, such as exigent circumstances. The sheer volume and diversity of information that is stored on a cell phone makes searching one incident to arrest analogous to searching a giant trunk the arrestee is towing and arguably more invasive than searching the arrestee’s home, both of which would also require a warrant. Read the opinion.

Flowers v. State (6th COA)

When police asked for permission to retrieve a contact’s phone number from the defendant’s phone, and the defendant responded by consenting and telling them under what name the contact’s number was saved, the police did not exceed the scope of consent when they also searched and photographed the defendant’s call history. The defendant said the number was “saved under” the contact’s name, but an objectively reasonable person could have interpreted that response as a helpful suggestion to the person searching the content of the phone rather than an explicit limitation. Read the opinion.

 

Weems v. State (4th COA)

Texas’s implied consent and mandatory blood draw statutory scheme does not constitute an exception to the Fourth Amendment’s warrant requirement. The message conveyed by both McNeely and the remand of Aviles is that the Fourth Amendment prohibits per se, categorical exceptions to the warrant requirement. Texas’s implied consent and mandatory blood draw statutes amount to per se, categorical exceptions because they do not take into account the totality of the circumstances presented in each case; they consider only certain facts. Read the opinion.

 

Cooper v. State

The defendant's conviction of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery violated double-jeopardy. Although the majority opinion does not establish the reasoning behind the holding, a concurring opinion by Presiding Judge Keller and a sepearte concurrence by Judge Cochran give insight into the holding. Read the opinion, Presiding Judge Keller's  concurrence, and Judge Cochran's concurrence.

 

Halili v. State (14th COA)

A warrant may be based on evidence collected by an undercover officer who is physically outside of his jurisdiction. Although the officer has no authority as a peace officer outside of his jurisdiction and is essentially acting as a citizen, there is nothing illegal about a citizen gathering that evidence. Read the opinion.

Lewis and Nolley v. State

A mandatory life sentence for a juvenile is constitutional under Miller v. Alabama. A court must make an individualized determination of the appropriateness of a life without parole sentence if the defendant is a juvenile, but not if the juvenile is facing a mandatory life sentence with the possibility of parole. Read the opinion.

Navarette v. California

When a driver called 911 to report a specific make, model, and license number of a truck that had just run her off the road at a specific mile marker, that information was sufficient to provide law enforcement with reasonable suspicion to perform an investigative stop for DWI. Under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated. The tip, even if anonymous, was from an eyewitness and described behavior consistent with DWI; the officer’s corroboration of the truck’s description and location established that the tip was reliable enough to justify a traffic stop. Read the opinion.

Sutherland v. State (7th COA)

Implied consent does not provide an exception to the warrant requirement for a warrantless blood draw. By vacating and remanding a case from the San Antonio court of appeals,Aviles v. State, 385 S.W.3d 110, the United States Supreme Court has rejected any position that would treat Transportation Code §724.012(b)(3)(B) as an exception to the Fourth Amendment. To the extent that §724.012(b)(3)(B) can be read to permit a warrantless seizure of a suspect’s blood without exigent circumstances or consent, it violates the Fourth Amendment’s warrant requirement. Read the opinion.

El-Ali v. State (Supreme Court of Texas)

The court refused the petition for review on the question of whethr or not the “innocent owner” provision of the asset forfeiture statute was unconstitutional because it requires a petitioner to prove his innocence rather than requiring the State to prove he is not innocent. Although the dissent believed the issue was ripe for review, the concurrence noted that the question has already been answered by the court and affirmed repeatedly by the United States Supreme Court. Read the dissent and the concurrence.

 

Ellison v. State (14th COA)

The State violated the defendant’s double-jeopardy rights when it convicted him twice on two separate counts of family violence that both relied on a common violent act. The overlap of two of the same underlying instances of bodily-injury assault against the same victim during the same time period was not constitutionally permissible. Read the opinion.

Berry v. State (4th COA)

The defendant could not be found guilty of misapplication of fiduciary property on the theory that he was acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised. For the first time, the court created a definition for the statutorily undefined term “fiduciary capacity” and held that “one acts in a fiduciary capacity for purposes of the statute if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interest of the other party before his own.” Although the defendant clearly acted contrary to an agreement with which his customers trusted him to comply, there was no evidence as to a justifiable expectation that he would place their interest before his own. Read the opinion.

Ex Parte Maxwell

The Supreme Court’s prohibition against mandatory life without parole for juvenile offenders announced in Miller v. Alabama applies retroactively. Because Miller completely removes a punishment from the list of punishments that can be imposed on a particular class, it is a new substantive rule and should be applied retroactively under Teague v. LaneRead the opinion.

Fernandez v. California

If a person objects to police making a warrantless search of his residence, and police physically remove him from the residence, the police can make a warrantless search with the consent of the remaining co-occupant. Under Georgia v. Randolph, a person’s objection to a search of a residence is not effective unless he is physically present. As soon as he is removed, his objection is also removed. Read the opinion.

State v. Granville

Polic cannot make a warrantless search of a cell-phone in a jail property room that is confiscated as part of a booking-inventory procedure and not incident to arrest. A person retains a legitimate expectation of privacy in the contents of his cell phone when the phone is being temporarily stored in a jail property room. Searching a person’s cell phone is like searching that person’s home desk, computer, bank vault, and medicine cabinet all at once. Read the opinion.

Barnes v. State (7th COA)

An in-person tip may provide enough reasonable suspicion to justify the detention and subsequent search of a suspect and the suspect’s vehicle. When a citizen-informer meets the police in person, the informer places himself in a position of accountability, and his information deserves to be given great weight. A detention based on facts supplied by a citizen-informer, which are adequately corroborated by the detaining officer, does not violate the Fourth Amendment. 

Also, the plain-view doctrine can authorize the warrantless search of a suspect’s entire vehicle. An officer’s observation of contraband or evidence of a crime in plain view inside an automobile can establish probable cause to conduct a warrantless search of the vehicle, including the glove compartment and center console. Read the opinion.

 

Medrano v. State (5th COA)

Chapter 273 of the Elections Code does not violate the separation of powers doctrine by granting the Attorney General power to prosecute election law violations. The Constitution gives the legislature authority to assign concurrent criminal prosecution duties to the Attorney General (AG). Giving the AG authority to prosecute election law violations does not remove any authority from prosecutors; it merely gives the AG the independent authority to prosecute one type of case in the absence of action by a local prosecutor. Because the duties of the AG are a hybrid between the powers of the executive and judicial branches, it is not a violation of the separation of powers doctrine for the legislature to grant the AG prosecutorial authority, so long as the legislature does not take away so much authority from county and district attorneys as to “practically destroy” the role of the prosecutor’s office. Read the opinion.

State v. Villareal (13th COA)

It was unconstitutional for police to perform a warrantless blood draw on the defendant based on his three prior convictions for DWI. The mandatory blood-draw statute in §724.012(b)(3)(B) of the Texas Transportation Code requires a no-refusal blood draw when a suspect has multiple DWI arrests, but the statute does not authorize warrantless blood draws. The court did not consider any implied consent arguments because it held that the State waived that argument when it stipulated at trial there was “no consent, no warrant” in the case. Read the opinion.

Hernandez v. State (7th COA)

A defendant’s confession was still voluntary even though it came after a detective said during her interrogation the defendant would never see her kids again if she didn’t tell the truth and that her cooperation might allow a judge to show her leniency. Coercive conduct alone doesn’t make a confession involuntary. The totality of the circumstances must show that the defendant’s will was overborne and her capacity for self-determination was critically impaired by the coercion. Read the opinion.

 

Ex Parte Coty

A forensic scientist's falsification of evidence in one case does not necessarily invalidate the evidence in all cases touched upon by that scientist. A due-process violation occurs when the evidence is both false and material. A five-part test will allow a falisty inference in favor of the defendant, and materiality must still be proven by the defendant as well. Read the opinion.

Smith v. State (1st COA)

When the State presented a defendant's disciplinary records from prison and probation as evidence, the State violated the defendant's Confrontation Clause rights by not calling the persons who put statements into those records. The disciplinary records contained subjective, detailed descriptions of incidents that were recorded by law enforcement personnel to establish specific facts and were therefore testimonial. Because the declarants were not available to testify at trial, the defendant’s Sixth Amendment rights were violated. Read the opinion.

 

Ex Parte Zavala - 4th COA

The Online Solicitation of a Minor statute is not facially unconstitutional just because one section requires proof the actor solicited a minor with the intent that the minor engage in sexual activity, while another section prohibits the defendant from arguing that there was no intent to actually meet the minor in person.  The gravamen of §33.021(c) of the Code of Criminal Procedure is the knowing solicitation of a minor to meet the person with the intent that the minor will engage in some form of sexual contact with that person. It does not matter what happens after the solicitation occurs because the offense has been completed. This is true even if the defendant was engaged in a fantasy at the time of the solicitation, with no intent that a meeting actually occur. Because the State is not required to prove that a meeting was intended, §33.021(d)’s prohibition against a defendant arguing lack of intent to meet does not conflict with §33.021(c). Read the opinion.

 

 

Wehrenberg v. State

The Court of Criminal Appeals held that the federal "independent source" doctrine is applicable in Texas. Like the attenuation doctrine, the independent source doctrine does not violate CCP Art. 38.23 because evidence that is initially discovered through illegal means is later legally acquired through the independent source. Read the opinion. 

Ard v. State - 14th COA

An officer's testimony that a detained alleged shoplifter was not free to leave while she was being questioned did not establish that the suspect was "in custody." Custody is not established during an investigative detention simply because the suspect is not able to leave until the investigation is completed. Even though the officer would have arrested her had she tried to leave, he never threatened to arrest her, and the officer’s unarticulated plan has no bearing on a custody analysis. 

Ex Parte Gill

When a defendant has been jailed more than 90 days without being chaged, a judge may not consider the safety of a victim or the community when setting bail. The language of CCP art. 17.15, which allows a judge to consider victim and community safety concerns in setting bail, is not imparted to CCP art. 17.151. The latter statute requires a defendant be released after 90 days through either a personal bond or a reduction of bail, and there is no language that considers the threat to a victim or the community. Additionally, it is not a violation of the separation-of-powers provision of the Texas Constitution for the legislature to require a court to release defendants under specific conditions.

Hudson v. State - 6th COA

A manslaughter instruction was not required when the evidence was sufficient to establish a lesser-included that was more severe than manslaughter but less severe than capital murder. If a possible intermediate offense was established by the same evidence the defendant relied upon to argue a manslaughter instruction, then the defendant would be disqualified from the manslaughter instruction. Read opinion.

Zamora v. State

A trial court must sua sponte give an accomplice-witness instruction when the evidence raises the issue under the theory that the witness was a party as a co-conspirator. The courts have defined “accomplice-witness” broadly enough to cover co-conspirator parties. Because an accomplice-witness instruction is “law applicable to the case” rather than a defensive issue, CCP art. 39.14 requires the court to include the instruction when it is implicated by the evidence.
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Douds v. State - 14th COA

Transportation Code §724.012(b)(1)(C), mandating a blood draw when an officer reasonably believes an individual will be transported to a hospital as a result of an intoxication-related accident, is not unconstitutional as applied in this case although the underlying DWI was a misdemeanor. Nothing in the language of the statute or the holdings of the Supreme Court in McNeely or Schmerber suggests that whether an offense is a misdemeanor or felony affects the 4th Amendment analysis. The warrantless draw in this case was supported by several exigent circumstances, including the need to investigate the crash, the reasonable belief that a passenger would be transported for medical treatment, and the passage of time before the draw could be performed.
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Farmer v. State

The defendant was not entitled to a jury instruction on the defense of an involuntary act in his DWI trial although he testified that his wife set his medications out for him, and he was unaware that he took Ambien before driving. Voluntariness, as described by PC §6.01(a), refers only to one’s own physical body movements. Although the defendant may have mistakenly taken the wrong pill due to his wife’s actions, there is no evidence that shows he did not voluntarily pick up the medication and ingest it.
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Rodriguez v. State - 4th COA

The defendant was entitled to reinstatement of the State’s original 10-year plea offer because trial counsel was ineffective during both the plea bargaining process and trial. Applying the three factors from Lafler v. Cooper, 132 S. Ct. 1376 (2012), it is clear the defendant was prejudiced because: 1) the defendant probably would have accepted the offer with effective counsel; 2) nothing indicates the State would have withdrawn the offer; and 3) although the trial court rejected this offer, she was not acting in a neutral manner when she did so. The offer must be reinstated, but the newly assigned judge retains discretion to accept or reject the plea agreement.
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Bell v. State

The defendant’s right to due process was not violated when he was shackled during trial. Although the court should have made a particularized finding of the need to shackle the defendant, a constitutional violation did not occur because the record does not show a reasonable probability that the jury was aware of the restraints.
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Staley v. State

The “competency-to-be-executed” statute, CCP art. 46.05, does not allow for the execution of a mentally ill inmate previously found incompetent who becomes competent only after he is involuntarily medicated. The statute grants the trial court jurisdiction and authority to periodically order re-examination of an incompetent defendant to determine whether he is no longer incompetent to be executed, but it does not permit an order for involuntary medication.
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Ex parte Thompson - 4th COA

PC §21.15(b)(1), which prohibits the recording, broadcasting, or transmitting of visual images of another in a location that is not a bathroom or private dressing room without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, is  facially unconstitutional. The statute unconstitutionally regulates a person’s rights to photograph and to have certain thoughts. Unlike similar statutes that have been upheld, it does not require intent to invade another’s personal privacy, and it impermissibly reaches a substantial amount of lawful, protected expressive conduct.
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Lundgren v. State - 2nd COA

The trial court properly revoked the defendant’s community supervision based on a new offense occurring during the time the trial court had plenary jurisdiction and before the defendant filed his timely motion for a new trial and notice of appeal. The community supervision conditions went into effect the day the defendant pled guilty, waived his right to appeal, and was sentenced. The defendant’s argument that his “post-violation notice of appeal and motion for new trial retroactively acted as a panacea for his violations” is without merit.
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Acosta v. State - 1st COA

The offense of delivery or manufacture of a counterfeit instrument under Transportation Code §521.456 does not require proof of intent to pass the instrument off as authentic. The plain language of the statute requires proof of: 1) intent to sell, distribute, or deliver a forged or counterfeit instrument, and 2) knowledge that the instrument is not printed, manufactured, or made by or under direction of an authorized person. The fact that the defendant had printed disclaimer language on the fake licenses does not negate the culpability required for the commission of the offense, so he was not entitled to a mistake of fact instruction in the jury charge.
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Medina v. State - 14th COA

The evidence at trial was sufficient to show that the defendant’s truck, which had been modified with extra fuel tanks and a remotely operated fuel pump, was a criminal instrument intended for use in the theft of diesel fuel. Although the defendant argued the truck could be used for lawful purposes as well, the adaptations were conducive to the criminal purpose of stealing diesel fuel and made use of the truck for legitimate trucking activities illegal and unsafe.
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Rodriguez v. State - 3rd COA

The evidence was sufficient to support a conviction for felony murder with the underlying felony of injury to a child even though the alleged “acts clearly dangerous to human life” were omissions. The only felony excluded from the felony murder statute is manslaughter, so injury to a child by omission may support a felony murder conviction. The jury could have inferred from the evidence that the defendant committed acts – such as feeding her son far less than he needed – that were clearly dangerous to human life.
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State v. Barragan - 10th COA

The trial court should not have granted the defendant’s motion for a new trial “in the interest of justice” based on his claim that the State failed to correct false or misleading testimony. To be entitled to a new trial, the defendant must: 1) articulate a valid legal claim, 2) produce or point to evidence in the record to substantiate the claim, and 3) show prejudice to substantial rights. Evidence at the hearing on the motion showed the victim’s testimony was, at most, vague or confusing, not false or misleading, so the defendant failed to show he was entitled to a new trial.
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State v. Coker - 5th COA

An anonymous tip that the defendant was manufacturing methamphetamine in his home, coupled with evidence found during a search of the defendant’s trash, was sufficient to establish probable cause for a warrant to search the home. Although the defendant argued that no case in Texas has upheld a warrant based on an anonymous tip and a single trash search, the court found that the totality of the circumstances in this case supported issuing the warrant.
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State v. Ford - 14th COA

The trial court erred in granting the defendant’s motion to dismiss based on a due process claim because of a 14-year delay between the alleged offense and the indictment. The defendant was charged with aggravated sexual assault of a child, which has no statute of limitations, so he had the burden to show the delay: 1) substantially prejudiced his right to a fair trial, and 2) was intentionally used by the State to gain a tactical advantage. The defendant failed to present any evidence of improper purpose on the State’s part because at most, the delay was a result of inadequate police work by an inexperienced detective.
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Arredondo v. State - 4th COA

The trial court’s entry of two consecutive life sentences for the defendant’s aggravated sexual assault convictions did not violate the 8th Amendment prohibition on cruel and unusual punishment or contravene the intent of the Legislature in PC §12.31. Even if the sentence amounts to a de facto sentence of life without parole, nothing in the law, including Miller v. Alabama, prohibits a discretionary sentence of LWOP for juvenile offenders who, like the defendant, have committed both homicide and non-homicide offenses in a particularly heinous manner.
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Glover v. State - 7th COA

The punishment for continuous sexual abuse of a child does not violate the 8th Amendment although there is no opportunity for parole. After balancing factors including 1) the national consensus on punishment for this type of crime, 2) the moral culpability of those who commit the crime, 3) the severity of the punishment at issue, and 4) the legitimate penological interests served, the court determined the punishment is not per se cruel and unusual.
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Burch v. State

The defendant’s 6th Amendment right to confront witnesses was violated when the State introduced a lab report supported only by testimony of the reviewing drug analyst, not the testing drug analyst, in the defendant’s trial for possession of a controlled substance. There was no indication that the defendant had an opportunity to cross-examine the testing analyst prior to trial, nor was there any indication that the reviewing analyst had any personal knowledge of the tests performed in this case.
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Salinas v. Texas

The defendant’s 5th Amendment right against self-incrimination was not violated when the prosecutor argued that his pre-arrest, pre-Miranda silence when voluntarily submitting to police questioning was substantive evidence of guilt. The 5th Amendment privilege is generally not self-executing and must be expressly invoked. The defendant did not invoke the privilege in this case, and neither of the exceptions to invocation (refusing to testify at trial or government coercion making forfeiture of the right involuntary) applied in this situation.
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Wooten v. State

The trial court’s denial of the defendant’s request for a sudden passion jury instruction during the penalty phase of his murder trial did not amount to harm sufficient to reverse the sentence. Because the jury had already rejected his self-defense claim during the guilt phase of the trial, it was highly unlikely they would have found the defendant was experiencing a level of fear sufficient to lose control of his actions, as required for sudden passion.
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State v. Zalman

The trial court abused discretion in granting the defendant’s motion for a new trial when the defendant did not present evidence of the same claim raised in his motion. The two-prong Herndon test requires that the defendant: 1) state a valid legal claim, and 2) supply or point to evidence in the trial record to support the claim. Here, the defendant’s motion for new trial claimed that the verdict was contrary to the law and evidence, but at the hearing, and in an untimely amended motion, he argued only that evidence should have been suppressed.
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Tucker v. State - 4th COA

The trial court properly denied the defendant’s motion to suppress narcotics seized from his home after a search based on consent given during a traffic stop because, based on the totality of the circumstances, the consent was voluntary. The defendant contended his consent was given only because officers detained him for an unreasonable amount of time, improperly questioned him without giving Miranda warnings, and would not allow his young son to get out of the van although it had no air conditioning. However, the trial court reasonably concluded the consent was valid based on the defendant’s admission on cross-examination that his consent was voluntary and the fact that the stop lasted no more than 40 minutes.
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