HERNANDEZ, ISRAEL GARCIA v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0176-25

ISRAEL GARCIA HERNANDEZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
WILLACY COUNTY

SCHENCK, P.J. filed a dissenting opinion.

DISSENTING OPINION

The majority concludes no rational juror could find beyond a reasonable doubt

the initial traffic stop of Appellant, Israel Garcia Hernandez, could be reasonable as

a matter of fact within the meaning and sweep of the Fourth Amendment. I disagree.

I would instead conclude we are obliged to give deference to a rational jury’s factual
HERNANDEZ DISSENT—2

findings1 and to uphold the trial court’s judgment by implementing that verdict on

any basis supported by the record. I believe that the evidence is more than sufficient

to show that Deputy Garcia had reasonable suspicion for the initial traffic stop.

Alternatively, I conclude a jury might have reasonably found the community

caretaking doctrine applicable to the initial stop. Either conclusion would compel

affirmance here.

BACKGROUND

In this case, a resident 911 caller described what she believed to be a Chevrolet

Silverado driving slowly through Willacy County, a sparsely populated area of South

Texas not far from the Texas-Mexico border. I take judicial notice that Willacy

County covers almost 600 square miles and held a population of approximately

20,000 residents during the time the facts of this case played out. 2

1
See McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim App. 2023) (explaining
misapplication of the standard of review involves reweighing evidence, rationalizing it by a
hypothesized weaker case than the record presents, and overlooking dispositive distinctions in the
case). While the majority cites to Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App. 2017) urging
that our review of the legal decision is de novo, there is no dispute here over the law as governs
generally. Rather, as Long makes clear, we are, instead, obliged to defer to all rational
determinations that jurors may have made in support of the verdict. Our review of the trial judge’s
decision to turn aside the request for directed verdict would then track the same pattern as a
sufficiency question. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)) (“We
treat a point of error complaining about a trial court’s failure to grant a motion for directed verdict
as a challenge to the legal sufficiency of the evidence.”).

2
Census Bureau statistic compiled by USAFacts. See Our Changing Population: Willacy
County, Texas, USAFacts, https://usafacts.org/data/topics/people-society/population-and-
HERNANDEZ DISSENT—3

Half an hour later, Deputy Garcia arrived where the caller reported the

vehicle. At trial, the prosecutor’s closing argument noted that on evenings such as

the date of the call, “there’s only four units on patrol on any given night on a good

night, sometimes only two.” See 3 RR 113. Upon arrival to the general location

described by the caller, Deputy Garcia spotted Hernandez behind the wheel of a

slow-moving truck sporting similar characteristics to the truck the caller described.3

He spotted no other vehicles on the road.

At this point in the fact pattern, I agree with Judge Parker that Deputy Garcia

could have reasonably believed Hernandez was driving the same truck the caller

described, as he testified at trial. Regardless, the fact that the jurors credited his

testimony would be adequate and reasonable to support the trial’s outcome, as jurors

are entitled to rely on common knowledge of the proliferation of mid-size pickup

trucks and the similarity among them. Garcia v. State, 667 S.W.3d 756, 762 (Tex.

Crim. App. 2023).

demographics/our-changing-population/state/texas/county/willacy-county/
[https://perma.cc/D6C4-L2R6] (last visited Nov. 20, 2025); see also Emerson v. State, 880 S.W.2d
759, 765 (Tex. Crim. App. 1994) (“[T]aking of judicial notice of a fact outside the record is part of
the inherent power and function of every court, whether a trial or appellate tribunal.”), quoting G.
Currie, Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent
Investigation, 1960 WIS. L. REV. 39.; Bell v. State, 63 S.W.3d 529, 531 (Tex. App.—Texarkana 2001,
pet. ref’d) (taking judicial notice that it is 80.9 miles from Dallas to Sulphur Springs).

3
When asked at trial to recall the make and model of the truck detained, Deputy Garcia
equivocated, initially saying it was not a Silverado and later saying he couldn’t recall. 3 RR 62.
HERNANDEZ DISSENT—4

In all events, given the truck’s slow movement and isolated presence on a road

in close proximity to the 911 call’s report of a potentially suspicious pick-up truck,

Deputy Garcia reasonably surmised—or a fact finder could readily so find—

Hernandez’s truck may have either (1) been engaged in criminal activity, including

but not limited to, human smuggling common to the area, or (2) was experiencing a

medical or other emergency resulting in its apparent slow motion.

After spotting Hernandez’s vehicle, Deputy Garcia turned down the same

road as Hernandez and activated the emergency lights. Hernandez drove on for what

his brief tells us is a period of four minutes, paying no mind to the emergency lights.

When Hernandez finally stopped at what later proved to be his brother’s property,

Deputy Garcia attempted to detain him. Hernandez refused to comply. When

Hernandez’s defiant behavior escalated into a physical altercation, Deputy Garcia

then arrested Hernandez.

DISCUSSION

The majority ignores the escalation leading to the actual arrest, focusing

instead on Deputy Garcia’s initial decision to signal Hernandez to stop. While I

agree the stop requires legal justification, Deputy Garcia did not originally seek to

arrest Hernandez when he arrived and illuminated his lights, only to inquire into the

apparent connection between Hernandez and the 911 call. Probable cause is not
HERNANDEZ DISSENT—5

necessary for an officer to reasonably seek to inquire of whether criminal activity was

afoot or whether a vehicle’s slow movement signaled a need for medical or

mechanical assistance. Deputy Garcia testified at trial the 911 caller only expressed

concern over the lingering vehicle; he did not elaborate on whether the concern

involved fears of something criminal or care for whether the vehicle’s driver

encountered a medical or mechanical problem. See 3 RR 55.

For purposes of a Terry stop when crime may be afoot, only a reasonable

suspicion—amounting to a “‘less demanding’ standard” than the probable cause

standard required for other types of police action—is required. See Terry v. Ohio,

392 U.S. 1 (1968); see also Kansas v. Glover, 589 U.S. 376, 380 (2020); Alabama v.

White, 496 U.S. 325, 330 (1990). The existence of reasonable suspicion also

ultimately depends “upon both the content of information possessed by police and

its degree of reliability.” Id. at 330.

Though Terry also explains “in justifying the particular intrusion the police

officer must be able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion,” we

employ a “totality of the circumstances” analysis in deciding whether the facts of an

individual case before the Court amount to “an objectively justifiable basis for the

stop.” Terry, 392 U.S. at 21; Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
HERNANDEZ DISSENT—6

App. 2011); see also United States v. Cortez, 449 U.S. 411, 417 (1981) (“Terms like

‘articulable reasons’ . . . are not self-defining; they fall short of providing clear

guidance dispositive of the myriad factual situations that arise. But the essence of all

that has been written is that the totality of the circumstances—the whole picture—

must be taken into account.”). This test involves pointing to “specific, articulable

facts . . . combined with rational inferences from those facts, [which] would lead [law

enforcement] to reasonably conclude that the person detained is, has been, or soon

will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex.

Crim. App. 2013).

Neither controlling statutes nor case law include the requirement an officer

specify (or know the name of) the particular Penal Code section(s) he suspects an

individual to have violated—only that the facts give rise to suspicion of some

“criminal activity.” See Derichsweiler, 348 S.W.3d at 916. In Terry, for example,

Officer McFadden observed two men repeatedly walking past stores in Cleveland

and conversing with each other. Terry, 392 U.S. at 6. He later testified their unusual

movement over ten to twelve minutes drew his suspicion, and while he was “unable

to say precisely what first draw his eye to them,” as he put it, “‘I get more purpose

to watch them when I seen their movements.’” Id. at 5-6. He did not know whether

the men were “casing” the store for a subsequent burglary (a property crime) or a
HERNANDEZ DISSENT—7

“stick up,” i.e., a robbery; still, he “considered it his duty as a police officer to

investigate further.” Id. at 6. The Warren court overwhelmingly (8-1) agreed and

supported his decision not only to stop his suspect, as Deputy Garcia attempted here

by turning on his lights, but to put hands on him for purposes of searching for a

weapon.

The totality of the circumstances analysis does not emphasize the existence of

any specific fact or fact category; instead, it considers the impact of all things known

to and playing out before the officer, including his knowledge of the area and the

cause for his presence there. See United States v. Sokolow, 490 U.S. 1, 7–8 (1989).

The fact that a neighbor in this sparsely populated area called to report suspicious

lingering is significant in the case before us. The fact that the vehicle appeared to

remain thirty minutes hardly detracts from that picture—if anything, it adds to the

suspicion that prompted the call.

To the extent the law might require Deputy Garcia point to the specific

articulable facts contributing to the reasonable suspicion required to pull Hernandez

over, I would assert these facts, combined with his knowledge of smuggling in the

area as per his trial testimony, suffice to initiate a brief stop.4 See 3 RR 31.

4
See United States v Brignoni-Ponce, 422 U.S. 873, 884-885 (1975) (“Any number of factors
may be taken into account in deciding whether there is reasonable suspicion to stop a car in the
border area. Officers may consider the characteristics of the area in which they encounter a vehicle.
HERNANDEZ DISSENT—8

But whether, in the case at bar, Deputy Garcia suspected smuggling of people

or drugs, what type of drugs might be suspected, and whether he was observing a

“meet” or slowly studying the field next to an unusually slow-moving vehicle to

uncover a “drop,” is not controlling. What matters to the case before us is that even

without the underlying knowledge of smuggling contributing to his suspicion, a

totality of the circumstances test is at play here, and particularly after what appeared

to be more than thirty minutes of loitering on an isolated stretch of rural road

arousing suspicion of local inhabitants, any reasonable officer would have shared

Deputy Garcia’s concern that some form of criminality might be afoot. Given

Deputy Garcia’s testimony regarding the presence of one sole vehicle on the road

upon his arrival (which took approximately thirty minutes), a reasonable factfinder

could have concluded these facts formulated the reasonable suspicion necessary to

initiate a stop. See 3 RR 29-31.5 Long compels the Court to defer to all such factual

determinations. Long, 535 S.W.3d at 519.

Its proximity to the border, the usual patterns of traffic on the particular road, and previous
experience with alien traffic are all relevant.”).

5
At trial, the State questioned Deputy Garcia about what he observed upon arrival. When
asked why, when he did not know for certain whether the truck on the scene was the exact truck
the caller described, he still sought to initiate a stop, Deputy Garcia replied, “Because it was in the
vicinity that the caller had advised our dispatch. And the caller had advised – had described it as a
pickup truck. And that area, it’s a rural area. There’s no other vehicles out there. So when I saw
that vehicle there, you know, I figured that was the vehicle.” 3 RR 29. When asked whether the
fact the vehicle Deputy Garcia observed was not a Chevy Silverado affected his analysis of the
HERNANDEZ DISSENT—9

Additionally, an officer’s reasonable suspicion is not negated in the case the

activity giving rise to concern later turns out to be innocent. 6 See Navarette v.

California, 572 U.S. 393, 403 (2014); see also United States v. Arvizu, 534 U.S. 266,

277 (2002) (a reasonable suspicion “need not rule out the possibility of innocent

conduct”). Rather, the inquiry reflects the reality that, in addition to an officer’s

present observations, his knowledge of circumstance surrounding the events facing

him and his past experiences in the field also matter. Arvizu, 534 U.S. at 273 (2002);

see also Cortez, 449 U.S. at 418 (1981) (permitting officers to draw from “objective

observations, information from police reports…and consideration of the modes or

patterns of operation of certain kinds of lawbreakers.”).

The Supreme Court’s decisions in Terry and its progeny tell us not to parse

those officers’ judgments with tweezers and microscopes so long as the stop lasts no

longer than is reasonably necessary to ascertain whether the cause for reasonable

situation, the deputy replied, “No, because it was – the caller described a pickup truck. When I
arrived to the area, I observed a pickup truck . . . ”. 3 RR 30. When the State again asked Deputy
Garcia why he sought to initiate a stop, he replied “Because we had gotten a report of a suspicious
vehicle in that area. That was the only vehicle out there in the dirt road.” Id.

6
Not unlike the case at hand, the United States Supreme Court has found reasonable
suspicion present where Border Patrol agents who had uncovered evidence of human smuggling
into the United States from Mexico encountered a vehicle driving past them with no outright
obvious indication of illegal activity aboard, but with the capacity to transport groups of people.
When the vehicle again drove by minutes later, the agents conducted a stop, later held to be
reasonable, and discovered smuggled individuals inside. See United States v. Cortez, 449 U.S. 411
(1981).
HERNANDEZ DISSENT—10

suspicion is ill-founded. 7 Therefore, in my view, the only question in the case before

us is whether the jury (or trial court decision to embrace the jury’s wisdom) could

have found the facts sufficient to give rise to reasonable suspicion. I frankly do not

see that as a difficult question, once the facts are accounted for in light of the record

and our obligation to yield to the reasonable inferences it supports at the moment

Deputy Garcia made the decision to initiate what should have been a brief stop.

While the majority opinion properly includes Arvizu among its Fourth

Amendment jurisprudence on detention—including to explain how, in developing

reasonable suspicion, officers may utilize their “own experience and specialized

training to make inferences from and deductions about the cumulative information

available” 8—it abruptly veers from the basis of the holding towards a focus on the

extent and specifics of a situation contributing to the totality of the circumstances. 9

Whether it is jurors or courts called upon to second-guess officers’ observations,

their review must account for the officers’ judgment in the moment. Arvizu, 534

7
Similarly, as discussed in more detail below, the law permits an officer to stop a motorist
to determine if there is need for assistance.

8
Arvizu, 534 U.S. at 273.

9
See Maj. Op. at 15-19. The majority treats the earlier case of United States v. Cortez, 449
U.S. 411 (1981) similarly, forgetting the Cortez Court formally adopted the totality of the
circumstances test, and not a “specific circumstances” test.
HERNANDEZ DISSENT—11

U.S. at 273; Westerman v. State, No. PD-1314-05, 2006 WL 2694388, at *4 (Tex.

Crim. App. Sept. 20, 2006) (Yeary, J., dissenting) (not designated for publication)

(explaining appellate courts are not authorized to engage in “Monday morning

quarterbacking”). Instead, it is important in this context and others that we assume

a more modest posture accepting that “we are, at best, systemically secondary in an

already slow and expensive process (and have a grossly unfair advantage of time over

the trial courts) . . . [and that] we cannot function like an instant replay booth.”

McPherson v. Rudman, No. 05-16-00719-CV, 2018 WL 3062447, at *8 (Tex. App.—

Dallas June 21, 2018, no pet.) (mem. op., not designated for publication); see also

Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015) (explaining “there

is a difference between what an officer sees during an ongoing event and what we see

when reviewing a video,” and applying this consideration to a fact pattern involving

an officer’s decision to pull a driver over.).

To adopt a rule requiring specific behavior or permitting only certain factors

for consideration in the totality analysis essentially seeks to reanimate the corpse of

the Ninth Circuit’s ruling the Supreme Court disavowed in Arvizu, disarming police

officers of their basic authority and providing criminals a recipe for evading

detection. See Jennifer Pelic, United States v. Arvizu: Investigatory Stops and the

Fourth Amendment, 93 J. CRIM. L. & CRIMINOLOGY 1033, 1052 (2002-2003). The
HERNANDEZ DISSENT—12

intent of the “totality of the circumstances” test is to consider the individual facts

of each case as a whole, not to examine each case before us to ferret out whether it

contains specific circumstances adding up to reasonable suspicion.

In this case, a 911 caller familiar with the area requested an officer on site due

to something amiss 10 on a rural road in South Texas where human trafficking was

common.11 Just as we are obliged to accept Deputy Garcia’s knowledge of the area,

he was at least entitled to rely on the 911 caller’s familiarity with the neighborhood.

Regardless of the 911 caller’s knowledge, when Deputy Garcia arrived thirty minutes

later, the same or a similar vehicle appeared to remain lurking in that same vicinity,

driving very slowly as the patrol car approached.

The majority stresses how it took thirty minutes for Deputy Garcia to arrive

and encounter Hernandez’s truck. This is hardly surprising or helpful to its

10
Judge Finley takes issue with my phrasing here, though I am not sure how his
misunderstanding of descriptive language translates to a mischaracterization of facts. “Amiss”
means “out of place in given circumstances,” according to Webster’s third definition of the
adjective, and whittles the caller’s description down to one word. See Amiss, Merriam-Webster,
https://www.merriam-webster.com/dictionary/amiss (last visited December 3, 2025). For
present purposes it is akin to the observation that a majority opinion is engaged in “jiggery-pokery”
or that its treatment of the record is “pure applesauce.” See, e.g., King v. Burwell, 576 U.S. 473,
506, 507 (Scalia, J. dissenting) (employing the phrases).

11
Such was the case in Arvizu, after all, where law enforcement’s observation of a minivan
on a rural road and its questionable driving decisions combined with knowledge of the road’s use
in drug trafficking, among other things, added up to reasonable suspicion to stop the vehicle. See
supra.
HERNANDEZ DISSENT—13

conclusion. First, Willacy County covers a wide swath of rural land, lacks a large

population, and did not deploy a large number of law enforcement units on any given

evening. Second, I strongly disagree with the majority’s emphasis on the half hour

it took Deputy Garcia to arrive on scene as an indication the reasonable suspicion

was lacking. Rather, the fact that the same vehicle appeared to remain present in

close proximity to the 911 call increased suspicion that its operator was possibly

engaged in human smuggling or other illegal activity.

Dismissing Deputy Garcia’s choice to make the initial traffic stop not only

ignores the jury’s evaluation of the witnesses, the trial court’s judgment and the

unanimous court of appeals decision, but it largely begs the question of the proper

standard of review.12

12
This is not a simple question. The issue was presented to the jury, which answered in
the State’s favor. Ordinarily, reversal would require more than a simple disagreement. See Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979)). Here, of course, the issue, though submitted to a jury, is a legal one, or at least a mixed
question of fact and law. And even so, we would normally defer to the trial court’s ultimate
disposition by giving near total deference to it insofar as any factual issue presents itself. Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, by resolving the issue in accordance
with the jury’s verdict, the trial court’s decision is still, in my view, entitled to at least that level of
deference. Our decision in Long is not to the contrary, though it does not attempt to untangle the
relation between the factual and legal question driving the result. This question is in fact the same
as the one that confronted the Supreme Court in Arvizu where Justice Scalia questioned how that
Court’s articulation of the standard requiring “due weight to inferences drawn from [the] facts by
resident judges” squared with de novo review. Arvizu, 534 U.S. at 278 (Scalia, J., concurring).
Ultimately, as I, like Justice Scalia in Arvizu, find no basis for reversal under any standard, I need
not explain my rejection of the findings below, whether of the jury or the judges.
HERNANDEZ DISSENT—14

The majority’s decision also ignores that law enforcement officers, while often

first on the line in fighting crime, additionally serve a community caretaking function

requiring officers to act within a duty to protect the welfare of an individual or the

community. See Wright v. State, 7 S.W.3d 148, 153 (Tex. Crim. App. 1999); see also

State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (noting general rule

requiring appellate court to affirm on any lawful basis supported by the record).

Police officers patrolling remote portions of our State do not travel with lawyers or

judges and will often encounter unusual situations or dangerous circumstances

requiring they exercise informed judgment about whether to engage at all. An officer

may therefore, at times, find it appropriate to pull over a driver without suspicion of

criminal activity, 13 if, as here, the driver or a passenger appeared to potentially

require medical or mechanical assistance. See Wright, 7 S.W.3d at 153.

While the majority stresses how Deputy Garcia testified he was unable to

recall by name law enforcement’s official “community caretaking function,” this

Court has not created any rule requiring an officer be aware of terminology or

13
See Chilman v. State, 22 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) (where a car was stopped at two o’clock in the morning in front of a barricaded entrance to
a university); State v. Ross, 999 S.W.2d 468, 470 (Tex. App.—Houston [14th Dist.] 1999), aff’d,
32 S.W.3d 853 (Tex. Crim. App. 2000) (where an officer questioned the father of two children
were sleeping in a truck parked out front of a bar on a cold evening); Sweeney v. State, 6 S.W.3d
670, 671 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (where a driver traveled down a rainy
road at 40 miles per hour with a flat tire).
HERNANDEZ DISSENT—15

delegation of duties in order to assist someone in need. See Byram v. State, 510

S.W.3d 918, 920-921(Tex. Crim. App. 2017); see also ABA Standards For Criminal

Justice §§ 1-1.1,1-2.2 (1980). 14 Deputy Garcia is not required to be a lawyer or to

please judges with awareness of labels of doctrines. He is required to act reasonably

in view of his function and in compliance with the constitutional command to the

same effect.

In determining a proper stop pursuant to the community caretaking function,

this Court considers (1) the nature and level of distress the detained individual

expressed, (2) the detained individual’s location, (3) whether the individual had

access to assistance without the officer, including whether he was completely alone,

and (4) to what extent the detained individual would present a danger to others or

himself without the officer’s involvement. Id. at 151-52. We explained in Corbin v.

State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002):

Because the purpose of the community caretaking exception is to allow
an officer to “seize” and assist an individual whom he reasonably
believes is in need of help, the first factor is entitled to the greatest
weight…This is not to say that the weight of the first factor alone will
always be dispositive…A particular level of exhibited distress may be
seen as more or less serious depending on the presence or absence of
the remaining three factors.

14
To prove a stop proper pursuant to the community caretaking function, the Court
considers “(1) whether the officer was primarily motivated by a community-caretaking purpose;
and (2) whether the officer’s belief that the individual needed help was reasonable.” Gonzales v.
State, 369 S.W.3d 851, 854–55 (Tex. Crim. App. 2012). Because the Court is not tasked with
making this determination in the case at bar, I will not undertake this analysis here.
HERNANDEZ DISSENT—16

Id.

A vehicle traveling slowly may, but does not always, signal criminal activity.

Slow speeds might also signal distress. For instance, as the Court described in

Corbin, a police officer might reasonably exercise his community caretaking function

upon encountering a driver traveling very slowly because he had two flat tires. See

Corbin, 85 S.W.3d at 278 (citing Lebron v. State, 35 S.W.3d 774, 776-77 (Tex. App.—

Texarkana 2001, pet. ref'd)).

In this case, Hernandez was the only vehicle in the vicinity, Hernandez was

alone in his pick-up truck, and the truck appeared to be alone on the same isolated

stretch of rural road for a period long enough to prompt a 911 call and a further thirty

minutes to respond. Independent of any possibly criminal situation, the vehicle’s

continued presence and its slow speed might evidence need of further inquiry to

determine whether some form of assistance was required. To be sure, Deputy

Garica’s effort to inquire was met with evasion that suggested defiance more than a

stroke or a broken axle. While that evasion no longer suggested a need for assistance,

it dramatically escalated the extant suspicion of criminality attributed to reasonable

suspicion for a Terry stop as discussed above.

CONCLUSION
HERNANDEZ DISSENT—17

I believe the jury, considering all the evidence and reasonable inferences that

could be drawn therefrom, could have rationally found beyond a reasonable doubt

that Deputy Garcia had reasonable suspicion to initiate a traffic stop. And, even if

not, the jury could have reasonably inferred Deputy Garcia acted appropriately in

accordance with the community caretaking function of law enforcement due to the

lingering vehicle’s slow speeds.15 Because the majority would not uphold either

conclusion, I dissent.

Filed: December 19, 2025

Publish

15
Had this Court hypothetically been asked to undertake a Fourth Amendment analysis on
a trial court denial of a motion to suppress involving these same issues, I believe this Court would
uphold that denial on the same basis.