Sonny Ray Dempsey v. State

Affirmed and Memorandum Opinion filed December 17, 2009. In The Fourteenth Court of Appeals NO. 14-08-00657-CR Sonny Ray Dempsey, Appellant v. The State of Texas, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1119717 MEMORANDUM OPINION Sonny Ray Dempsey was convicted of the felony offense of aggravated robbery and sentenced to twenty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Dempsey appeals the trial court’s judgment. He contends the trial court erred in allowing the prosecution to present evidence of extraneous offenses to the jury. Dempsey also asserts the trial court erred in permitting a police officer to testify about his truthfulness. Finally, Dempsey contends the evidence at trial is factually insufficient to support his conviction. We affirm. I On May 29, 2007, Houston Police Department (“HPD”) officer Christopher Kelly was dispatched to conduct a hospital check at Ben Taub Hospital. Officer Kelly testified a hospital check is performed when a person goes to the hospital because he has been assaulted and needs to file a report. When he arrived at the hospital, Officer Kelly spoke with Wayne Wright, the complainant, about the extensive injuries to his face and head. Officer Kelly testified the complainant’s injuries included a long gash from the back of his head down to the base of his neck, extensive bruising on the right side of his face, gashes on the lower part of his right leg, and a swollen and bruised nose. Officer Kelly stated the complainant said he was beaten and then robbed of his wallet, cell phone, credit cards, keys, and vehicle, a PT Cruiser. Officer Kelly also testified the complainant told him a person named Kathy was involved in the robbery. The complainant testified he was friends with Katherine (“Kathy”) Alvarez. Alvarez was an exotic dancer at the Ritz and Sugar’s, clubs he often frequented. The complainant stated on the day he was robbed, he and Alvarez planned to meet after she finished working at the Ritz. While the complainant waited for Alvarez to call him, he went to Sugar’s to sell prescription pills—Vicodin and Xanax—to the club’s employees and clients. He testified that when he arrived at the club, he noticed Sonny Ray Dempsey, the appellant, was sitting at a table with another white male. He stated the two men approached him and asked him if he “had a problem.” The complainant testified he told Dempsey and the other man he did not have a problem with them, and they subsequently went back to their table. The complainant explained that he was able to identify Dempsey at the club that night because he had an altercation in the Sugar’s parking lot with Dempsey and a man known as Big Mike one week before the robbery. Dempsey objected to the testimony on the grounds that his fistfight with the complainant constituted an extraneous offense. The court allowed the testimony, but only after it instructed the jury about the proper use of the testimony—non-propensity purposes. The complainant testified before the fight in the parking lot he had a conversation with Big Mike about his prescription pills. He also stated he had previously instructed Alvarez to sell prescription pills to Dempsey. After Dempsey approached the complainant, the complainant testified Alvarez “showed up” at Sugar’s, greeted him, and then approached Dempsey’s table. The complainant stated Alvarez continuously stopped at Dempsey’s table throughout the night to speak with Dempsey. The complainant testified he and Alvarez left the club together at about 2:00 a.m. in his PT Cruiser, and they stopped at a convenience store on their way to Alvarez’s apartment. Once in her apartment, the complainant hid his wallet and keys because he “was at a stripper’s house” and did not trust Alvarez. He stated that when he went to the bathroom, he was suddenly hit in the forehead with a bat. The complainant testified he saw Dempsey holding the bat. He explained he stumbled to the bedroom and was hit again. Throughout the beating, the complainant testified he was both hit with the bat and kicked repeatedly. The complainant stated there was another man with Dempsey, and they both demanded his car keys and wallet. The complainant testified Alvarez found his car keys and wallet and told him, “I got you bitch.” Alvarez testified she purposely set up the complainant the night he was beaten and robbed. She stated she suspected the complainant stole money from her purse, and Dempsey told her the complainant stole money from his girlfriend Brittany. She explained she was upset and wanted to “teach him a lesson” for stealing money. But she testified she only set up a fistfight, and she never knew Dempsey planned to beat and rob the complainant. Alvarez stated the night of the incident she gave Dempsey the keys to her car and residence. She testified she brought the complainant back to her apartment, and he got high on prescription pills. Contrary to the complainant’s testimony, Alvarez testified the complainant could not have walked into the bathroom because he was passed out on the floor. She stated she went to the bathroom, and when she came out of the bathroom, Dempsey and a man named Mike entered her apartment and walked into her bedroom. She testified she walked down to her car and heard screaming coming from her apartment. She waited a few minutes, went back to her apartment, and found Dempsey and Mike beating the complainant with her son’s baseball bat. Alvarez testified she screamed at Dempsey and Mike to stop, but they continued kicking and beating the complainant. She also stated she heard someone use the phrase “false claiming” and saw Dempsey lift his shirt. During the beating, the complainant also testified that Dempsey lifted his shirt and “flashed” his tattoo. Before the complainant described the tattoo, Dempsey objected on the grounds that the tattoo and any information about the tattoo was inadmissible evidence. The trial court overruled the objection. The complainant then testified the tattoo was the shield of the Aryan Brotherhood, a white supremacist gang. He stated that when Dempsey lifted his shirt, he said, “I’m the real Aryan Brotherhood.” Additionally, the complainant testified he knew Dempsey was a member of the Aryan Brotherhood. The complainant also admitted that when he was in prison, he was a member of the Peckerwoods, “a group of solo white dudes” with the same ideology as the Aryan Brotherhood. After the incident, Alvarez testified she, Dempsey, and Mike went over to Brittany’s apartment and discussed their alibis. She stated Dempsey burned his clothes as well as the complainant’s wallet, cell phone, and pill bottles in the fireplace. She testified that Brittany gave Dempsey lighter fluid so he could set the complainant’s PT Cruiser on fire. Although she did not actually see Dempsey set the car on fire, she stated she saw him walk out the door with the lighter fluid. HPD officer Troy Gallagher testified the complainant’s incinerated PT Cruiser was found behind Dempsey’s apartment complex. After hearing all the evidence, the jury found Dempsey guilty of felony offense of aggravated robbery and sentenced him to twenty-five years’ confinement. This appeal followed. II In his first three issues, Dempsey contends the trial court erred in allowing the prosecution to present evidence of prejudicial and irrelevant extraneous offenses to the jury. These extraneous offenses include: testimony about a fight that occurred between Dempsey and the complainant one week before the robbery; evidence concerning Dempsey’s involvement in the Aryan Brotherhood; and Dempsey’s statements about “hustling” at the club, obtaining Xanax from Katherine Alvarez, and previously fighting with the complainant. We review the trial court’s admittance of extraneous offenses using an abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). While a trial court has substantial discretion, the court can abuse its discretion if its rulings are outside the “zone of reasonable disagreement.” De La Paz, 279 S.W.3d at 343–44; Powell, 63 S.W.2d at 438. If the evidence demonstrates that an extraneous offense is relevant to a non-propensity matter, and its probative value is not substantially outweighed by the danger of unfair prejudice to the jury, then the ruling will be within the “zone of reasonable disagreement.” See De La Paz, 279 S.W.3d at 344. Texas Rule of Evidence 404 explains that evidence of other crimes, wrongs, or acts is inadmissible to prove a person acted in conformity with his character or a particular character trait in committing a similar crime. Tex. R. Evid. 404(a)–(b); Prince v. State, 192 S.W.3d 49, 54 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); see Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). Generally, courts do not allow evidence of extraneous offenses because a jury may automatically infer that a person acted in conformity with a bad character trait on the occasion in question. See Johnston, 145 S.W.3d at 219. But extraneous offenses may be admissible for other purposes, such as to prove identity, motive, opportunity, preparation, intent, plan, knowledge, or absence of mistake or accident. Tex. R. Evid. 404(b); Johnston, 145 S.W.3d at 219; Prince, 192 S.W.3d at 54. “The proponent of uncharged misconduct evidence [however,] need not ‘stuff’ a given set of facts into one of the laundry-list exceptions set out in Rule 404(b), but he must be able to explain . . . the logical and legal rationales that support its admission on a basis other than ‘bad character’ or propensity purpose.” De La Paz, 279 S.W.3d at 343. If a trial court determines the offered evidence is relevant and does not constitute bad character conformity, it may admit the evidence and instruct the jury that the evidence is limited to a specific purpose. Prince, 192 S.W.3d at 54. It is presumed a jury follows the trial court’s instructions and adheres to them, but this presumption is rebuttable. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). A In his first issue, Dempsey specifically argues the trial court erred in allowing Alison Wright, the complainant’s sister, to testify about a prior fight between the complainant and Dempsey. Dempsey contends the evidence was offered solely as propensity evidence to make him “look like a bad person in front of the jury.” The State contends Dempsey waived his complaint about the prior fight because he failed to continuously object to the evidence, and he allowed the same evidence to come in through another witness; therefore, any error is harmless. We agree with the State. The Texas Rules of Appellate Procedure require a party to preserve error for appellate review by demonstrating the error on the record. Tex. R. App. P. 33.1(a); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). If a party does not want an extraneous offense admitted at trial, when the evidence is presented, he must object to preserve his complaint on appeal. McMillon v. State, 940 S.W.2d 767, 769 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). The objection must be timely, proper, and specific. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (explaining how the objection must be specific unless the particular ground is apparent from the context). The party must object as soon as “the objectionable nature of the evidence” becomes apparent, and then the party must seek to strike the evidence from the record. Ethington, 819 S.W.2d at 858. A party must continue to object every time the inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington, 819 S.W.2d at 858).[1] If the objection is not continuously noted, the error in the admission of evidence will be cured when the same evidence is admitted elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003); Ethington, 819 S.W.2d at 858 (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)). The error, therefore, would be rendered harmless. Dickson v. State, 246 S.W.3d 733, 744 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Even if the trial court erred in allowing Alison Wright to testify about the fight between Dempsey and the complainant, the error was cured because the evidence came in elsewhere without objection. See Valle, 109 S.W.3d at 509. The State questioned the complainant about the prior incident without objection from Dempsey. Officer Gallagher and Alvarez also testified about the prior fight between Dempsey and the complainant, and Dempsey cross-examined the witnesses about the incident. Additionally, before the complainant testified about the prior fight, the court instructed the jury about the limited purpose of the evidence.[2] It is presumed the jury followed the court’s instruction. See Colburn, 966 S.W.2d at 520. The evidence of the prior fight clearly was admitted without objection through other State witnesses, and the court provided the jury with a limiting instruction about the incident; therefore, and any error that might have occurred was harmless. Because any error is harmless, we overrule Dempsey’s first issue. B In his second issue, Dempsey contends the trial court erred in admitting evidence of his gang affiliation—the Aryan Brotherhood. The State asserts it introduced evidence of Dempsey’s gang affiliation to develop Dempsey’s motive for the crime, not to highlight his bad character. We agree with the State. In relation to Rule 404, courts have concluded that gang affiliation or membership is considered evidence of other wrongs, crimes, or acts, which are subject to exclusion. Williams v. State, 974 S.W.2d 324, 331 (Tex. App.—San Antonio 1998, pet. ref’d) (citing Pondexter v. State, 942 S.W.2d 577, 583–84 (Tex. Crim. App. 1996)). Evidence of gang affiliation may be admitted if it is admissible for a purpose other than bad character. Vasquez v. State, 67 S.W.3d 229, 239–40 (Tex. Crim. App. 2002); Medina v. State, 7 S.W.3d 633, 644 (Tex. Crim. App. 1999). Under Rule 404(b), such evidence is admissible if it is relevant to motive. Vasquez, 67 S.W.3d at 239–40 (discussing appellant’s Mexican Mafia affiliation was relevant to motive because it was the Mexican Mafia who put a “hit” on the complainant); Spencer v. State, No.14-07-00683-CR, 2008 WL 2841686, *3–4 (Tex. App.—Houston [14th Dist.] July 24, 2008, pet. struck) (explaining the appellant robbed the complainant because he was not a member of the appellant’s gang); Trevino v. State, 228 S.W.3d 729, 734–35 (Tex. App.—Corpus Christi 2006, pet. ref’d) (concluding the appellant shot the complainant because he was a member of a rival sect of the same gang). Dempsey argues there is “little to no evidence” indicating his “affiliation with the Aryan Brotherhood had anything to do with the charged offense.” He further urges that the link between the charged crime and the gang affiliation must be direct and indisputable, and he complains he and the complainant are not members of rival gangs. Case law, however, does not fully support either contention. See Medina, 7 S.W.3d at 644; Trevino, 228 S.W.3d at 734–35. In Medina v. State, two children were killed during a drive-by shooting. 7 S.W.3d at 636. A witness testified that prior to the shooting at his house the “La Raza” gang had vandalized his garage and smashed the window of a car that was parked outside of his home. Id. at 643. The Court of Criminal Appeals held the extraneous offenses committed by “La Raza” at the witness’s home were relevant to show that the home was a gang target; therefore, the appellant, a member of the gang, had a motive to commit the charged offense. Id. The court stated, “That the house was a target of the gang has some tendency to show that appellant had a motive to shoot and kill persons at that house.” Id. As in Medina, the State presented a theory to the jury that the crime was gang-related. The complainant testified he knew Dempsey was a member of the Aryan Brotherhood. He also stated that when he was in prison, he belonged to the Peckerwoods. The complainant further testified that during the beating, Dempsey lifted up his shirt, “flashed” the complainant his tattoo, and said he was the “real Aryan Brotherhood.” The State then introduced a photograph of Dempsey’s tattoo, which depicted a large Aryan Brotherhood shield. Alvarez also testified she saw Dempsey lift his shirt and “flash” his tattoo. Alvarez stated that during the beating, she heard the phrase “false claiming.” She testified “false claiming is . . . when . . . you go around and you’re saying you’re in [a gang] and you’re not.” The State argued that Dempsey was motivated to beat and rob the complainant because he was “false claiming.” Like the Court of Criminal Appeals in Medina, we conclude that evidence of Dempsey’s gang affiliation “has some tendency to show that appellant had a motive” to commit the crime. See id. Although it may not be the primary or only motive, case law does not mandate that the only motive of a crime be gang-related to introduce evidence of gang affiliation. See id. On these facts, we cannot conclude that the trial court abused its discretion by allowing evidence of Dempsey’s gang affiliation to be introduced to support the State’s motive. We, therefore, overrule Dempsey’s second issue. C In his third issue, Dempsey argues the court erred in allowing the jury to view his videoed police interview because he made statements about inadmissible extraneous offenses—obtaining Xanax from Alvarez and “hustling” at Sugar’s.[3] Like the evidence of gang affiliation, the State contends the evidence illustrates Dempsey’s status as a rival drug-dealer in Sugar’s, thereby giving him a motive to commit the offense. We agree with the State. As with his first issue, the prosecutor introduced evidence of Alvarez selling pills to Dempsey more than once during the trial. Although Dempsey objected to his statement in the recorded police interview about getting Xanax from Alvarez, he did not object when the complainant stated he had Alvarez sell pills to Dempsey or when Alvarez testified that she sold pills to Dempsey. Additionally, before the jury watched Dempsey’s videoed statement, the court instructed the jury about the limited purpose of the evidence.[4] The evidence of Alvarez selling pills to Dempsey clearly was admitted without objection with other State witnesses, and the court provided the jury with a limiting instruction about the incident; therefore, any error that might have occurred was harmless. As with the second issue, the State contends evidence of Dempsey “hustling” falls under Rule 404(b) because it demonstrates Dempsey’s motive for committing the crime. The State theorized that Dempsey’s motive was his anger with the complainant because the complainant started selling prescription pills at Sugar’s. The complainant testified he frequently sold prescription pills at Sugar’s. The State argued Dempsey was upset because he also sold prescription pills to the clients and employees at Sugar’s; therefore, the complainant was taking away his business. In his videoed statement, Dempsey told the officers he “hustles” at the club. Dempsey objected to the introduction of the videotape because the “hustling” statement had not been redacted. The court overruled his objection, and instructed the jury about the limited purpose of the evidence—motive. As previously stated, evidence of extraneous offenses is admissible for non-conformity purposes, such as to prove motive. Tex. R. Evid. 404(b); Johnston, 145 S.W.3d at 219. On these facts, we cannot conclude that the trial court abused its discretion by allowing Dempsey’s statements about getting prescription pills from Alvarez or “hustling” at the club to be admitted. We, therefore, overrule Dempsey’s third issue. III In his fourth issue, Dempsey argues the trial court erred in allowing Officer Gallagher to testify about his veracity. The State contends Dempsey did not properly preserve error. We agree with the State. As previously stated, the Rules of Appellate Procedure require a party to preserve error for appellate review by demonstrating the error on the record. Tex. R. App. P. 33.1(a); see also Broxton, 909 S.W.2d at 918. A party will preserve error concerning the admission of evidence if the party objects to the evidence. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). The party must make the complaint in a timely manner and “state[] the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A). If the objection is sustained, the party must move for an instruction for the jury to disregard, and if the instruction is given, then the party must move for a mistrial. Cook, 858 S.W.2d at 473. Dempsey argues the prosecutor basically asked Officer Gallagher to state whether Dempsey was lying during the videoed statement. When Officer Gallagher testified, the prosecution asked him about Dempsey’s body language in the video. Dempsey first objected to the question stating, “The jurors are the determiners of facts and they can watch the video all they want in the jury room and look at his demeanor.” The trial court overruled the objection. The prosecutor then asked Officer Gallagher if Dempsey continuously talked to him during the interview. Officer Gallagher testified “he probably talk[ed] when he shouldn’t have, in my opinion, as far as being an honest person.” The prosecutor pursued the line of questioning and asked Officer Gallagher, “How do you reconcile that with him folding his arms and you said he was kind of being standoffish with you. What do you mean by that?” Dempsey objected to the question because it called for Officer Gallagher to comment on his truthfulness, and it invaded the province of the jury. The court sustained the objection. Dempsey, however, did not request an instruction for the jury to disregard, nor did he ask for a mistrial. It is clear from the record that his first objection about Officer Gallagher commenting on his demeanor was different from his next objection about Officer Gallagher opining on his veracity. Therefore, the court’s ruling on his first objection does not preserve error for his second objection, which is his issue on appeal, because he did not “state[] the grounds for the ruling that [he sought] from the trial court with sufficient specificity to make the trial court aware of the complaint.” See Tex. R. App. P. 33.1(a)(1)(A). Because Dempsey did not preserve the error at the trial level, we will not address the issue. IV In his fifth issue, Dempsey contends the evidence at trial is not factually sufficient to support his conviction. The State argues there is no indication that the jury’s decision is “clearly wrong” or “manifestly unjust,” and the jury properly decided Dempsey was guilty beyond a reasonable doubt. We agree with the State. In evaluating the factual sufficiency of the evidence, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730–31 (Tex. Crim. App. 2005); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Newby, 252 S.W.3d at 435. In a factual-sufficiency review, an appellate court asks whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009). We do not substitute our judgment for the fact finder’s judgment. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Newby, 252 S.W.3d at 435. “‘[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury’s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.’” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008) (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). Although we are able to second-guess the jury to a limited degree, “the factual-sufficiency review should still be deferential, with a high level of skepticism about the jury’s verdict required before a reversal can occur.” Id. Concerning his factual-sufficiency argument, Dempsey contends the evidence introduced at trial that was contrary to the verdict was strong enough that the jury could not have rationally determined his guilt beyond a reasonable doubt. Dempsey emphasizes that Alison Wright and Alvarez had “virtually no reason to tell the truth.” Alison Wright testified she visited her brother in the hospital and was angry about the crime. She stated she conducted her own investigation into the crime including going to Alvarez’s apartment and having the apartment manager take pictures of the inside of the apartment. Dempsey argues the information Wright gave to Officer Kelly was based on gossip, hearsay, and innuendo. Dempsey also emphasizes that Officer Kelly never collected evidence from the scene, and his suspicions were merely based on Wright’s bias “investigation.” Additionally, no physical evidence was introduced at trial except for the picture of the complainant’s burned car behind Dempsey’s apartment, which he argues is also within walking distance from Sugar’s. In his brief, Dempsey heavily focuses on the witnesses’ poor character and inconsistencies in their stories. A neutral review of the evidence indicates the jury had enough evidence to rationally reach its verdict. The complainant testified that on the night he was beaten and robbed, he saw Dempsey with the bat in his hands. He stated he and Dempsey got into a fistfight about a week prior to the robbery, and at Sugar’s the night of the robbery, Dempsey again confronted him. The State also introduced evidence of Dempsey’s gang affiliation and drug distributing to support its motives of the crime. Furthermore, Alvarez corroborated the complainant’s story, and she explained how Dempsey burned the complainant’s effects and disposed of his vehicle. The State also introduced photographs of Alvarez’s bloody apartment, which further supported both Dempsey’s and Alvarez’s description of the crime. The jury weighed the evidence contrary to the verdict that Dempsey cites as well as the evidence supporting the verdict. We conclude that the proof of guilt is not so obviously weak or against the great weight and preponderance of the evidence as to render the verdict clearly wrong or manifestly unjust. We therefore hold the evidence is factually sufficient to support the jury’s verdict, and overrule Dempsey’s fifth issue. * * * For the foregoing reasons, we affirm the trial court’s judgment. /s/ Jeffrey V. Brown Justice Panel consists of Justices Seymore, Brown, and Sullivan. Do Not Publish — Tex. R. App. P. 47.2(b). [1] There are two exceptions to the continuous-objection requirement: (1) obtain a running objection, or (2) request a hearing outside the jury’s presence. Martinez, 98 S.W.3d at 193. [2] The court stated: Ladies and gentlemen, you may hear evidence before you in this case regarding the defendant committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case. You cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose. [3] Additionally in his brief, Dempsey contends that his statements about his gang affiliation and fight with the complainant were also erroneously admitted. We have already concluded that evidence of his prior fight with the complainant amounted to harmless error and evidence of his gang affiliation is admissible under Rule 404(b) to demonstrate motive. Therefore, we will not address these issues again. [4] The court’s instruction is the same as the instruction in footnote 2.