211 U.S. 496 (1909)
MILLER
v.
NEW ORLEANS ACID & FERTILIZER COMPANY.
No. 32.
Supreme Court of United States.
Argued December 1, 1908.
Decided January 4, 1909.
ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.
*497 Mr. E.B. Dubuisson, for plaintiff in error.
Mr. William J. Sandoz, with whom Mr. G.L. Dupre was on the brief, for defendant in error.
MR. JUSTICE WHITE delivered the opinion of the court.
The law of Louisiana considers the property of the debtor as the common pledge of all his creditors. C.C. 1969. As a general rule, therefore, it contemplates an equality of right in all creditors as to all the property of the debtor, existing at the time an obligation against the debtor arises, unless a creditor, as the result of some lawful contract or from the particular nature of the debt to which the law gives a preference, has acquired a higher and privileged right to payment than that which belongs to the general mass of creditors. C.C. 1968. Under that law the creditors of a partnership are preferred as to the partnership assets over the individual creditors of the members of the firm. C.C. 2823. This privilege does not, however, conversely exist, since it has been held from an early day in that State that individual creditors of members of the firm have no preference on the individual assets of the estate of the members of a firm, and therefore the partnership creditors and the individual creditors have a concurrent right to payment out of the individual estates. Morgan v. Creditors, 8 Martin (N.S.), 599; Flower v. Creditors, 3 La. Ann. 189.
As a result of the common pledge which all creditors are presumed to have upon the property of their debtors the law of Louisiana gives to every creditor an action to revoke any contract made in fraud of their common right of pledge. C. *498 C. 1970-1977. As a consequence it is permissible to attack, even collaterally, any mere fraudulent and simulated (that is, fictitious and unreal) transfer of his property by a debtor. See authorities collected in 2 Hennen's Digest, verbo Obligations VII, p. 1031. This right, however, even in case of bad faith, does not enable a creditor to avoid a real contract of a debtor unless the act has operated to the injury and prejudice of creditors who were such at the time the act sought to be revoked was done. C.C. 1937. Every contract, however, is deemed to have been in fraud of creditors and prejudicial to their rights "when the obligee knew that the obligor was in insolvent circumstances and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor." C.C. 1984. From this rule are excepted sales of property or other contracts made in the usual course of business and all payments of a just debt in money. C.C. 1986. But this exception does not include the "giving in payment to one creditor to the prejudice of others any other thing than the sum of money due." C.C. 2658.
In 1903 the commercial firm of O. Guillory & Co., composed of Olivrel Guillory, Olivrel E. Guillory and Ambrois Lafleur, carried on business in the State of Louisiana. In 1904 the senior member, Olivrel Guillory, sold various parcels of real estate, which were his individual property, as follows: One sale to J.A. Fontenot, another to Alexandre Miller, and a third to John A. and Samuel Haas. All these sales were, apparently, on their face not susceptible of being assailed by creditors, because in form they were embraced within the excepted class to which we have referred.
On February 2, 1905, three corporations  which, for the sake of brevity, we shall designate as the Wooden Ware, the Fertilizing and the Elevator Companies  sued in a state district court the firm of O. Guillory & Co., the senior member, O. Guillory, individually, and the purchasers at the respective sales above mentioned. As to the first company, the cause of action was based upon an alleged open account for the purchase *499 price of goods sold to the firm prior to the making of the sales by the senior partner of his individual property above mentioned. As to the two other corporations the action was based upon notes held by the corporations signed by the individual members of the firm, and averred to have been given for the price of merchandise bought, also prior to said sales, from the corporations by the firm, it being alleged that the notes signed by the individual members had been received by the corporations as cumulative, and not in any wise as a novation of the firm obligation to pay the price of the goods by it bought. The sales were attacked as fraudulent simulations, or, if not unreal, as subject to be revoked, because they were made at a time when the firm was notoriously embarrassed or insolvent to the knowledge of the purchasers, and were not within the excepted class, because they were, in substance, not what they purported to be, but were givings in payment of the individual property of O. Guillory in order to prefer the purchasers.
The prayer was for a judgment for the amount of the debts, for a revocation of the sales, for a direction that they be sold by judicial decree to pay the judgments to be rendered, the payments to be made by preference out of the proceeds arising from the sale.
The cause was put at issue by general denials filed for the firm, for O. Guillory individually and for the purchasers. Before trial, in consequence of an adjudication in bankruptcy as to Guillory & Co., made on April 28, 1905, a petition was filed in the cause by W.J. Sandoz, alleging himself to be "the duly appointed and qualified trustee of the bankrupt estate of O. Guillory & Co." It was alleged that "since the institution of this suit the said O. Guillory & Co. have made application for and been adjudged bankrupts in the District Court of the United States for the Western District of Louisiana." And it was further averred that under the bankrupt law of the United States "the trustee succeeds to the rights of the creditors who may have brought actions to annul any transactions *500 affecting the property of the bankrupts, and the law makes it his duty to prosecute the same for the benefit of the said bankrupt estate in his capacity as trustee." The prayer of the petition was that Sandoz, as trustee, "be made a party plaintiff in this suit and duly authorized to prosecute the same to final judgment for the benefit of said bankrupt estate of O. Guillory & Co." The state court, after notice to the parties, entered an order substituting Sandoz as party plaintiff in his capacity "as trustee of the estate of O. Guillory & Co. . . . with authority to prosecute the same to final judgment for the benefit of said bankrupt estate."
Sandoz, trustee, was thereafter the sole plaintiff, and prosecuted an appeal to the Supreme Court to reverse a judgment of the trial court sustaining the sales. The Supreme Court, for reasons given in an elaborate opinion, held the sale to Fontenot to have been simulated and sustained the validity of the Haas and Miller sales. It was found that Olivrel Guillory had made the sales of his individual property principally for the purpose of assisting the firm which was embarrassed as the result of a decline in the price of cotton held by the firm; that at the time Guillory had no individual debts whatever, except one of three thousand dollars due to Miller and another of six thousand dollars, which was assumed and provided for in the Haas sale. Granting a rehearing asked by trustee Sandoz, a different conclusion was reached as to the Miller sale. The court found that when that sale was made Guillory owed Miller three thousand dollars, and although the price of seventy-five hundred dollars was actually paid to Guillory, yet as immediately after the sale Guillory had paid the three thousand dollar debt which he owed to Miller, "the transaction was an indirect preference of the son-in-law (Miller) over other creditors by a disguised giving in payment." This writ of error sued out by Miller was allowed by the chief justice of the state court.
By the assignments of error it is contended, first, that the court erred in testing, at the instance of Sandoz, trustee, the *501 validity of the sale to Miller by the state law instead of by the bankrupt law of the United States, which was alone controlling; second, under the bankrupt law of the United States the court erred in holding that the transfer by Guillory of his individual property to pay Miller, his individual creditor, was revocable, although there was no other individual creditor to be prejudiced thereby; and, third, that in any event the court erred in holding that prejudice could have resulted under the bankrupt law to individual creditors by the sale to Miller without ascertaining whether there were such creditors who could have been prejudiced. In other words, that the court erred in decreeing the sale to Miller to the extent of three thousand dollars to be revocable as a prejudicial preference, and at the same time relegating to the bankruptcy court the determination of whether there were any individual creditors who could have been prejudiced; thus decreeing a preference and yet declining to determine a question which was essential to be ascertained before a preference could be adjudged.
Our jurisdiction is challenged, first, because it is urged no Federal question was set up or claimed in the trial court, and therefore no such question was cognizable by the Supreme Court; second, because no Federal question was raised in or decided by the Supreme Court; third, even if incidentally a Federal question may have been passed upon below, nevertheless the court based its conclusions upon a non-Federal ground broad enough to sustain its judgment. The first question is involved in the second, because if the court below decided a Federal question we may not decline to review its action in so doing upon the assumption that the court transcended its powers under the state law by passing on a question which it had no right to examine because not raised in the trial court. The second contention embraces an irrelevant element, that is, that no Federal question was raised in the court below, since if such a question was expressly decided by the court our duty to review may likewise not be avoided by assuming that the court decided a question not raised in the cause.
*502 The proposition, therefore, reduces itself to this: Did the court below expressly decide a Federal question adversely to the plaintiff in error?
In its opinion on the rehearing the court said:
"The trustee in bankruptcy, was, on his own petition, made a party plaintiff and was authorized by order of court to prosecute the suit to final judgment for the benefit of the bankrupt estate. Neither the capacity of the trustee nor his right to stand in judgment have been questioned. It is argued, however, by counsel for Miller that the partnership alone was adjudged a bankrupt and not the members as individuals, and that as Miller, under the bankrupt act of 1898, is entitled to be paid by preference over partnership creditors out of the net proceeds of the individual estate of O. Guillory, plaintiffs were not prejudiced by the payment of the note held by Miller out of the individual assets of the debtor. The answer to this contention is that the petition of the bankrupt shows that O. Guillory filed schedules of his individual debts and of his individual property. `Where a firm goes into bankruptcy it is a proceeding against each and every member, and both the firm and individual assets must be administered in bankruptcy.' Collier on Bankruptcy, p. 60. Hence all rights of preference must be determined by the court having jurisdiction of the insolvency."
In view of the statement that no question was raised "as to the capacity of the trustee and his right to stand in judgment," and the fact that the record does not contain the full proceedings had in the bankruptcy court, and the further fact that no question as to the capacity of the trustee is raised in the assignment of errors, we take it that the intimation made by the court concerning the effect of the adjudication of a firm as being also an adjudication of the individual estates of the members was but a method of reasoning resorted to by the court to sustain its decision concerning the right of the trustee to avail of the state law under the circumstances of the case, irrespective of the rule as to preferences provided in the bankrupt *503 law, and, further, to support its conclusion that it was its duty to abstain from determining whether there were individual creditors who were prejudiced, and to remit that question to the court in which the bankruptcy proceedings were pending.
But thus limiting the passage referred to it nevertheless results that the court below both considered and necessarily decided two distinct Federal questions: First, the right of the trustee to avoid a preference under the state law, although it was contended that the exertion of such power was in conflict with the bankrupt law; and, second, that the preference might be avoided under the state law at the instance of the trustee without establishing that there were creditors of the individual estate. So far as the third contention concerning jurisdiction it is apparent from what we have just said that it is without merit. While it is true that the court applied the state law in testing the existence of the preference, such application of that law is obviously not alone broad enough to sustain its conclusion that the trustee under the bankrupt law had the right to avail of the preference under the state law, and this is also true concerning the ruling that there was power to determine the preference under the state law without previously ascertaining the existence under the bankrupt act of individual creditors.
We come then to the merits. Eliminating, as we have done, the expressions of the court below, as to the effect of the adjudication in bankruptcy of the partnership upon the estates of the individual members, we need not approach the very grave question which would arise for consideration if that subject had been decided by the court below. In re Stokes, 106 Fed. Rep. 312; Dickas v. Barnes, 140 Fed. Rep. 849; In re Bertenshaw, 157 Fed. Rep. 363.
While § 5 of the bankrupt act expressly authorizes an adjudication in bankruptcy against a firm, the controlling provisions following are the direct antithesis of the rule prevailing in the State of Louisiana.
Thus, subdivision f of § 5 commands that "the net proceeds of the partnership property shall be appropriated to the payment *504 of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts." To enforce these provisions the act compels (sub. d) the keeping of separate accounts of the partnership property and of the property belonging to the individual partners; the payment (sub. e) of the bankrupt expenses as to the partnership and as to the individual property proportionately; and, permits (sub. g) the proof of the claim of the partnership estate against the individual estate, and vice versa, and directs the marshalling of the assets of the partnership estate and the individual estates, "so as to prevent preferences and secure the equitable distribution of the property of the several estates."
Now, by § 60 of the bankruptcy law, as amended by the act of 1903, it is provided that a person shall be deemed to have given a preference "if, being insolvent he has, within four months before the filing of the petition or after the filing of the petition, and before the adjudication . . . made a transfer of any of his property, and the effect of the enforcement of such .. . transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class." It is obvious that if at the time of the alleged preferential transfer to Miller there were no other creditors of the individual estate of Guillory than Miller under the rule laid down by the bankrupt act, the transfer to him of assets of the individual estate in payment of an individual debt did not constitute a preference. That it might have constituted a preference under the state law results from the difference in the classification made by the state law on the one hand and the bankruptcy law on the other. So, also, it is evident, having regard to the separation between the partnership and individual estates made by the bankrupt act and the method of distribution of those estates, *505 that if there were no individual creditors and the sum paid to Miller was returned to the estate as a preference, it would be his right to at once receive back by way of distribution that which he was obliged to pay in upon the theory that it was a preference.
The questions then to be decided are these, 1st, Was the trustee authorized by the bankrupt law to avoid the sale to Miller to the extent of the three thousand dollars which constituted the giving in payment under the state law? And, 2d, if so, was it incumbent on the trustee, under the bankrupt act, to such recovery to show the existence of individual creditors at the time the giving in payment to Miller took place who were prejudiced thereby, and if not was the trustee obliged to show the existence of individual creditors at the time of the adjudication in bankruptcy who would be prejudiced in the distribution of the bankrupt estate if the giving in payment to Miller was not annulled?
As the suit by the creditors was brought within four months before the adjudication in bankruptcy, their right to a lien or preference arising from the suit was annulled by the provisions of subdivision f of § 67 of the bankrupt law. But that section authorized the trustee, with the authority of the court, upon due notice, to preserve liens arising from pending suits for the benefit of the bankrupt estate, and to prosecute the suits to the end for the accomplishment of that purpose. First National Bank v. Staake, 202 U.S. 141. It is inferable that the parties proceeded upon the erroneous conception that the state court, where the suit was pending, was competent to authorize the trustee, but as no question on that subject was made below or is here raised, we may not reverse the judgment in favor of the trustee because of the absence of authority from the bankrupt court, when presumably the want of authority would have been supplied had its absence been challenged. Assuming, therefore, that the trustee was properly authorized, it follows that he was entitled to preserve and enforce the privilege or lien, which arose in favor of the creditors, *506 resulting from their pending action, even although the cause of action arose from the state law, and the application of that law was essential to secure the relief sought. To the accomplishment of this end the bankrupt law was cumulative and did not abrogate the state law. See Keppel v. Tiffin Savings Bank, 197 U.S. 356.
Undoubtedly, the trustee, in prosecuting the suit to judgment was obliged to prove the existence of the facts which were essential under the state law, since to hold otherwise would be but to decide that he could recover without proof of his right to do so. But as under the state law creditors of the partnership had a coequal right to payment with the individual creditors of a member of the firm out of his individual estate, it follows that even if there had been no individual creditor but Miller, recovery was justified because of the prejudice suffered by the partnership creditors as the result of the giving in payment made by Guillory to Miller. In view of the distinction between the estates of partnerships and the estates of the members of the firm, which is made by the bankrupt law, and the method of distribution for which that law provides, of course the trustee will hold the fund as an asset of the estate of the individual member, and primarily for the benefit of his creditors. Although, on proof of the claims against such individual estate, if it be that Miller is the only individual creditor he will be entitled, by way of distribution, to the full amount paid in by him because of the method of distribution ordained by the bankrupt law, that fact does not establish that there was a necessity, in order to avoid the preference under the state law, to make proof that at the time of the alleged giving in payment there were other individual creditors who were prejudiced. While the power in the state court to pass on the question of preference involved the duty of deciding whether, at the time of the assailed transaction there were creditors to be prejudiced, that duty did not involve ascertaining what creditors, at the time of the adjudication in bankruptcy, were entitled to participate in the distribution. The one was within the province *507 of the state court for the purpose of the case before it; the other was a different question, depending on independent considerations exclusively cognizable in the bankruptcy court. The state court was, therefore, right in so deciding.
Affirmed.


572 So.2d 1308 (1990)
Reginald TONEY
v.
STATE.
CR 89-987.
Court of Criminal Appeals of Alabama.
November 16, 1990.
*1310 James H. Lackey, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.
BOWEN, Judge.
Reginald Toney was convicted of trafficking in cocaine and was sentenced to life imprisonment as a habitual offender. On this appeal of that conviction, he raises two issues.
On October 6, 1988, almost two pounds of cocaine was found during a warrantless search of the defendant's residence and automobile. At the time of the search, the defendant was on parole from the penitentiary following convictions for robbery and receiving stolen property.
In 1987, when the defendant was released on parole, his certificate of parole listed the following conditions:
"2. I shall not change my residence or employment or leave the State without first getting the consent of my Parole Officer.
". . . .
"4. I shall not use narcotic drugs, or frequent places where intoxicants or drugs are sold, dispensed, or used unlawfully.
". . . .
"7. I shall not violate any law.
". . . .
"9. I shall promptly and truthfully answer all inquiries directed to me by the State Board of Pardons & Paroles and my Parole Officer and allow that Officer to visit me at my home, employment site or elsewhere, and carry out all instructions my Parole Officer gives.
". . . .
"14. I shall not own, possess or have under my control a firearm or ammunition of any kind...."
On July 13, 1988, Mrs. Teri Luker, the defendant's parole officer, received information from narcotics investigator Terry Hicks of the Mobile Police Department which indicated that the defendant might be involved in drug use or drug dealing. Upon hearing these reports, Mrs. Luker asked the defendant to come in to her office. The defendant appeared at the parole office on July 15, denied the allegations of drug use, and agreed to submit to a drug screen urine test. The defendant submitted a specimen for urinalysis on July 15, and Mrs. Luker sent the specimen to the Department of Forensic Sciences.
The defendant continued to make his regular monthly visits to his parole officer, appearing on August 1 and September 1, 1988. On both visits the defendant stated that he was still living at the address to which he had been paroled. However, Mrs. Luker learned that during this time the defendant was living at a different address, and was seen driving a Mercedes automobile with a cellular telephone and "wearing a lot of gold [jewelry]." On October 5, or sometime shortly before October 6, 1988, Mrs. Luker received the forensics report on the defendant's urine test and it was positive for cocaine. She prepared a warrant for the defendant's arrest for parole violation.
Accompanied by three police officers, Mrs. Luker went to the defendant's residence on October 6. The defendant, who admitted the officers to his apartment at approximately 8:00 a.m., was arrested, handcuffed, and detained in the living room with Mrs. Luker while the other three officers made a "sweep" of the residence to check for other occupants of the premises.
The officers heard a young child crying in the back of the apartment and, upon entering the rear bedroom, they saw a large amount of currency, pistol bullets, *1311 and expensive clothing and jewelry in the room. The room contained both men's and women's clothing. The officers reported their observations to Mrs. Luker, who determined that a full-scale search of the premises should be conducted. Mrs. Luker called Mr. James R. Lee, District Supervisor of the parole office, to "advise him that they were in the process of searching the residence."
A search of the rear bedroom disclosed a .357 Magnum pistol, $3270 in cash, several flight bags and airline ticket receipts for trips to Los Angeles in the defendant's name, and large amounts of expensive clothing, shoes, and jewelry. Officer David Green, who assisted in the search, testified that he saw 18 pairs of Pierre Cardin men's shoes. He also recalled:
"The furniture throughout the house, the apartment was what I would consider luxuriously furnished. The furniture, pictures on the wall, everything was new. The clothing in the master bedroom was expensive clothing, very excessive for any one individual. I mean talking 30 or 40 pairs of expensive shoes, watches, numerous Seiko watches, expensive jewelry, sweaters in the closet. I don't know, 30, 40, 50 sweaters. Bags and bags of new clothing."
The defendant had reported to his parole officer that he was employed at Deas Tire Company as a tire recapper and that he was also engaged in his own lawn service business. The officers found no work clothes during the search of the defendant's residence. They found a business checkbook for Toney's Lawn Service and noted that the last check written on the business account had been written eight months previously.
A search of the kitchen revealed a metric triple-beam scale containing a white powder residue. The scale was on a shelf in an open pantry.
Two young children were present in the residence at the time of the search. During a conversation among the officers concerning what arrangements should be made for the children when the defendant was taken away in custody, the defendant stated that Caroline Rouser, the children's mother, would return shortly. He also told the officers that Ms. Rouser had the keys to a white Oldsmobile which was parked behind the residence. The officers determined that the Oldsmobile was registered to the defendant.
Soon thereafter, Ms. Rouser drove up in a pick-up truck. When she entered the apartment, the officers removed a set of keys from her purse, and then unlocked and searched both vehicles, the truck and the Oldsmobile. No contraband was found in the truck. In the trunk of the Oldsmobile was a small flight bag or shaving kit containing a white powder later determined to be 889.78 grams, or 1.94 pounds, of cocaine.

I
The defendant first argues that the trial court erred by denying his motion to suppress the evidence, which he claims was the fruit of an illegal search. We do not agree.
In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Supreme Court held that the warrantless search of a probationer's home on less than probable cause does not violate the Fourth Amendment if it is "carried out pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement." 483 U.S. at 873, 107 S.Ct. at 3167. The Court determined that a Wisconsin regulation "permit[ting] any probation officer to search a probationer's home without a warrant as long as his supervisor approves and as long as there are `reasonable grounds' to believe the presence of contrabandincluding any item that the probationer cannot possess under the probation conditions" satisfied the reasonableness requirement of the Fourth Amendment. 483 U.S. at 870-71, 107 S.Ct. at 3166. A reading of the court's opinion and the authorities upon which it *1312 relied (most notably Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), dealing with the rights of parolees) makes it clear that the holding is applicable to parolees as well as probationers. See Griffin v. Wisconsin, 483 U.S. at 873-74, 107 S.Ct. at 3168.
The record shows that the Alabama Board of Pardons and Paroles has a regulation governing the search of a parolee's residence. That regulation is in all relevant respects identical to the Wisconsin regulation upheld in Griffin, and it provides, in pertinent part, as follows:
"Search of Living Quarters or Property
"A search of a probationer's or parolee's quarters or property may be conducted by an officer of the Department if there are reasonable grounds to believe that the quarters or property contain contraband. Approval of the District Supervisor shall be obtained unless exigent circumstances, such as suspicion the probationer or parolee will destroy contraband or use a weapon, require search without approval.
". . . .
"Reasonable Cause
"In deciding whether there are reasonable grounds to believe that someone under supervision possesses contraband or that their living quarters or property contains contraband, an officer should consider the observation of other probation and parole officers, information provided by informants, and the reliability of the informant relied upon.
"In evaluating reliability, attention shall be given to whether the information is detailed and consistent and whether it is corroborated.
"Attention should be given to whether the informant has supplied reliable information in the past and whether the informant has reason to supply inaccurate information. Consider the activities of the subject that relates to whether or not they might possess contraband and information provided by them that is relevant to whether they may possess contraband. Consider the experience of yours or another officer's with the client or in a similar circumstance. You may consider prior seizures of contraband from the subject and the need to verify compliance with rules of supervision and the state and federal law."
Board of Pardons and Parole, Probation and Parole Officers Manual, paragraph 166.04 (Jan.1988); (R-299, 300).
The defendant attempts to distinguish Griffin in three ways. First, he claims that the Alabama regulation does not govern the legality of the search conducted here because the regulation was promulgated in November 1987, seven months after the defendant was paroled in April 1987. Mrs. Luker conceded on cross-examination by defense counsel that the parole certificates for inmates released from confinement after November 1987 include the following additional condition, of which the defendant had no notice:
"I shall make myself available for searches and/or tests when ordered by the parole officer and that includes, but is not limited to, urinalysis, breathalyzer, and blood samples, or a search of the residence, vehicle or any property under my control."
The same lack of notice situation, however, was present in Griffin. Griffin was placed on probation in 1980, the Wisconsin regulation took effect in 1982, and the search occurred in 1983. The Supreme Court did not address the issue of Griffin's lack of notice, observing only that the regulation was "in effect at the time of the search." Griffin, 483 U.S. at 871 n. 1, 107 S.Ct. at 3166 n. 1.
The United States Court of Appeals for the Ninth Circuit addressed the notice question in United States v. Duff, 831 F.2d 176 (9th Cir.1987). In that case, the appellant-probationer argued that he had been denied due process because he was not notified, at the time he was placed on probation, that he would be subject to a urine *1313 drug screen test. The Court of Appeals assumed that the drug test was a warrantless search, 831 F.2d at 178, but nevertheless concluded:
"We find no due process violation in the fact that Duff was not given notice before the drug testing that he would be subject to such testing. `[Although] [i]t is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty,' [United States v.] Dane, 570 F.2d [840] at 843 [(9th Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978)]. Duff had ample notice from the general terms of the court's probation conditions and the specific terms of the probation officer's instructions that he was prohibited from using illegal drugs.... Due process does not require that prior notice be given of the techniques through which noncompliance will be detected."
Duff, 831 F.2d at 179 (emphasis added). Here, the defendant was given notice that he was to obey the law and was given specific written notice that he was to refrain from the use of drugs. We agree with the Ninth Circuit that his failure to receive notice of the methods by which his noncompliance with these probation conditions would be detected does not invalidate the search.
Second, the defendant argues that even if the Alabama regulation is reasonable on its face and governs the search here, Griffin does not apply and the search was nevertheless unlawful because Mrs. Luker did not have "reasonable grounds to believe that [his] quarters or property contain[ed] contraband." He insists that the positive drug test indicating that he had used cocaine on or before July 15 did not give his probation officer reasonable grounds to believe that he would have contraband in his possession two and one-half months later on October 6.
This argument must be rejected in light of Griffin alone. There the Supreme Court upheld the Wisconsin Supreme Court's decision that an unsubstantiated report by a police officer that the probationer "`had' or `may have had'" guns in his possession was sufficient to meet the "reasonable grounds" standard. 483 U.S. at 875, 107 S.Ct. at 3169. Here, Mrs. Luker had indisputable proof of the defendant's drug use. Although the drug screen test indicated drug use two and one-half months before the search, the time lapse represented only a delay in the receipt of the results by Mrs. Luker, not a purposeful deferral of action on her part. She prepared an arrest warrant almost immediately upon learning the test results.
In light of the defendant's agreeing, as a condition of his parole, that he would "not own, possess or have under [his] control a firearm or ammunition of any kind," the presence of the pistol bullets sighted during the sweep of the residence immediately following the defendant's arrest also provided Mrs. Luker with "reasonable grounds" to conduct a search.
Third, the defendant maintains that Griffin does not apply and that the search was unlawful because the probation officer did not comply with the terms of the regulation requiring her supervisor's approval prior to the search. Initially, we note that the Supreme Court's approval of the Wisconsin regulation's constitutionality had nothing to do with the provision requiring a supervisor's approval prior to a search. The Court noted:
"The dissenters assert that the search did not comport with all the governing Wisconsin regulations. There are reasonable grounds on which the Wisconsin court could find that it did. But we need not belabor those here, since the only regulation upon which we rely for our constitutional decision is that which permits a warrantless search on `reasonable grounds.' The Wisconsin Supreme Court found the requirement of `reasonable grounds' to have been met on the facts of this case and, as discussed earlier, we hold that such a requirement, *1314 so interpreted, meets constitutional minimum standards as well. That the procedures followed, although establishing `reasonable grounds' under Wisconsin law, and adequate under federal constitutional standards, may have violated Wisconsin state regulations, is irrelevant to the case before us."
Griffin, 483 U.S. at 880 n. 8, 107 S.Ct. at 3171 n. 8 (emphasis added).
Moreover, in this case, the probation officer complied with the governing regulation requiring her supervisor's prior approval for the search "unless exigent circumstances, such as suspicion the probationer or parolee will destroy contraband or use a weapon, require search without approval." Mrs. Luker testified that she informed her supervisor contemporaneously with the search but did not seek his prior approval because she "felt like it was exigent circumstances and that was what the Board policy was." In light of strong indications, at the time Mrs. Luker ordered a full-scale search, that the defendant was dealing in drugs and possessed a pistol, Mrs. Luker's suspicion that the defendant would "destroy contraband or use a weapon" was reasonable.
"Part of [a parole officer's] job [is] to be suspicious in the interest of supervisionand he [is] to use his judgment and knowledge of Defendant in evaluating the suspicions and deciding how to investigate them. When the record shows, as it does here, a pattern of events giving rise to a reasonable suspicion that Defendant was violating the conditions of his [parole] and that the [parole] officer acted reasonably in his investigation, the Court will not ... try to second-guess the officer on his evaluation of any of the underlying occurrences."
United States v. Giannetta, 711 F.Supp. 1144, 1145 n. 1 (D.Me.1989). Another fact contributing to the existence of exigent circumstances was the presence of the two small children in the residence. This fact supplied the indication that another adult person or persons had access to or lived in the residence.

II
Citing Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986), the defendant maintains that the evidence was insufficient to connect him with the cocaine found in the white Oldsmobile. He insists that because the keys to that vehicle were, at the time of the search, in the possession of Caroline Rouser, the State's evidence did not exclude her as the one in constructive possession of the cocaine inside the vehicle.
He also claims that because the bedroom where the bullets and currency were found contained both men's and women's clothing, there was no evidence linking him, to the exclusion of Ms. Rouser, to those items. Finally, he insists that because he and Ms. Rouser lived in the residence together, there was no showing that the scales in the kitchen pantry belonged to him rather than to her.
Korreckt is not authority for the proposition that the State failed to connect the defendant to the contraband in the Oldsmobile. In Korreckt, this court held that the State had not met its burden of proving the accused's knowledge of the contents of a truck from the mere fact that the accused had the truck in his physical possession and drove it, when the truck was owned by a third party and the accused "had no right to exclude the legitimate owner." 507 So.2d at 564. Here, however, the Oldsmobile was parked behind the defendant's residence, was in the defendant's physical presence, and the defendant was the record owner of the Oldsmobile. The State's witnesses testified that they had seen the defendant driving the Oldsmobile and they had not seen Ms. Rouser driving it. The defendant's witnesses testified that both the defendant and Ms. Rouser drove the car. Under the circumstances of this case, it is a legitimate inference that both Ms. Rouser and the defendant knew of the presence of the cocaine in the Oldsmobile.
The defendant's argument that the State, in order to meet its burden of proving his *1315 guilty knowledge, must have excluded the possibility of Ms. Rouser's guilty knowledge, is incorrect. "When the accused was in nonexclusive possession of the premises upon which the illegal substance was discovered,... suspicion may arise that all the inhabitants of the premises knew of the presence of the illegal substance. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978)." Bragg v. State, 536 So.2d 965, 967 (Ala.Cr. App.1988) (emphasis added). "However, this suspicion alone is not adequate to infer knowledge. The suspicion must be supported by evidence connecting the accused with the illegal substance." 536 So.2d at 967-68.
The combination of the following circumstances strongly connected the defendant with the cocaine in the Oldsmobile: (1) The defendant had tested positive for cocaine use two and one-half months previously. (2) Airline ticket receipts in the defendant's name showed that he had made several recent trips, in violation of his parole, to Los Angeles which, the State's evidence established, was the "number two major source location in the United States for cocaine." (3) A triple-beam scale, a standard "accoutermen[t] of drug trafficking," Segura v. United States, 468 U.S. 796, 801, 104 S.Ct. 3380, 3383, 82 L.Ed.2d 599 (1984), was in an open pantry in the kitchen. A pistol, bullets, and a large amount of cash, also routinely found in places where drug dealing occurs, see Robinette v. State, 531 So.2d 697, 699 (Ala.1988), were found in the residence. (4) The defendant, who had informed his probation officer that he was working for wages at tire recapping and lawn service jobs, had no work clothes and was pursuing a lavish and expensive lifestyle.
"`[T]he jury was entitled to ponder the interrelationship of all these evidentiary items.' [United States v.] Staten, 581 F.2d [878] at [886 (D.C.App.1978) ]; United States v. Smith, 171 U.S.App. D.C. 342, 520 F.2d 74, 76 (1975). `Circumstantial evidence sufficient to support a jury's finding of guilt may be found in the accumulation of several relatively insignificant pieces of evidence, or it may be presented in the form of a single highly significant or incriminating event.' United States v. Morando-Alvarez, 520 F.2d 882, 884-85 (9th Cir. 1975). In considering the weight to be given evidence, `courts and juries must use common sense, common reason, and common observation as well as a common knowledge of the usual acts of men and women under given circumstances.' Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926)."
German v. State, 429 So.2d 1138, 1143 (Ala.Cr.App.1982). In this case, "the evidence excluded every reasonable hypothesis except that of guilt." Robinette v. State, 531 So.2d at 699.

III
The circuit judge sentenced the defendant to a term of life imprisonment under the habitual offender provision of § 13A-5-9(b)(3), but failed to impose the mandatory fine set out in the drug trafficking statute.[1]
Under the drug trafficking statutes, imposition of the stated fine is mandatory. *1316 See Moynes v. State, 568 So.2d 392, 394 (Ala.Cr.App.1990); Nobles v. State, 555 So.2d 308 (Ala.Cr.App.1989); Sears v. State, 479 So.2d 1308, 1314 (Ala.Cr.App. 1985). The amount of the fine represents a legislative assessment of the punishment due the offender and is not subject to a judicial interpretation of reasonableness under the particular facts of any one case. Neither this court nor the trial court has the authority to disregard the legislatively mandated fine in drug trafficking cases.
Therefore, this cause is remanded for proper sentencing. The circuit court is directed to impose the mandatory $100,000 fine upon the defendant in addition to the term of imprisonment already imposed and to make a return to this court within 60 days reflecting that action.
REMANDED WITH DIRECTIONS.
All Judges concur.
NOTES
[1]  Although the indictment in this case charged a violation of § 20-2-80(2), that section was not in existence on October 6, 1988, the date of the instant offense. Section 20-2-80 was amended and transferred, effective September 30, 1988, to § 13A-12-231. See Act No. 88-918, § 2, 1988 Ala.Acts 512. The indictment is, of course, valid, notwithstanding the miscitation of the applicable Code section. Dentmon v. State, 568 So.2d 416 (Ala.Cr.App.1990). The applicable trafficking statute here is § 13A-12-231(2)(b). It is virtually identical to former § 20-2-80(2), and provides, in pertinent part:

"(2) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine... is guilty of a felony, which felony shall be known as `trafficking in cocaine.' If the quantity involved:
". . . .
"b. Is 500 grams or more, but less than one kilo, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $100,000.00."


358 S.W.2d 320 (1962)
J.C. REYNOLDS, Plaintiff-in-Error,
v.
STATE of Tennessee, Defendant-in-Error.
Supreme Court of Tennessee.
June 5, 1962.
Kyle K. King, Greeneville, for plaintiff in error.
George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen., Nashville, for the State.
WHITE, Justice.
The plaintiff-in-error, defendant, was indicted on two counts, one of grand larceny and the second on receiving stolen property. He was convicted on the first count and sentenced to serve three years in the Penitentiary, which verdict was approved by the Trial Court, a judgment entered thereon and thereafter a motion for a new trial was seasonably made and overruled. The defendant has appealed and assigns errors.
The facts are substantially as follows:  Miss Jean Brookes, a member of the faculty of Tusculum College, went to a self-operated or coin operated laundry in Greeneville, Tennessee, to wash some clothes. She placed her purse in a chair while she transferred some clothes from one machine to another. The purse was taken by the defendant, the billfold removed therefrom and the purse was thrown in some weeds where it was later found.
The only dispute as to the facts in the case is as to the amount of money which was taken by the defendant. The brief filed on behalf of the plaintiff-in-error, defendant, says:
"It is conceded that the overwhelming weight of the evidence is to the effect that Miss Brookes had more than *321 $100.00 in her purse. However, it is the contention of the plaintiff in error that there is some proof in the record that might warrant the jury in coming to the conclusion that there was less than $100.00."
Miss Brookes testified that she had between $120.00 and $130.00 in her purse together with the usual driver's license, identification cards and other miscellaneous papers. She testified in answer to a direct question as to the exact amount of money in the purse by saying:  "It was more than $100.00."
On cross-examination she was asked: "It would be impossible to state just exactly how much money you had in your pocketbook, wouldn't it Miss Brookes?" A. "Impossible to give an exact amount. But I am certain it is within a hundred and twenty and one hundred and thirty dollars." Q. "But you can't  you are just giving a guess, your best opinion, aren't you, Miss Brookes?" A. "My best opinion."
An officer testified that $90.00 was recovered from the defendant. This officer further testified that the plaintiff-in-error, defendant, had made statements that he had given $10.00 to his father from the billfold and that the defendant had stated to him, the officer, that there was $117.00 in the billfold.
The defendant did not testify in the case, but a statement given by him to officer Watts appears in the record in which it is stated:  "I got the pocketbook and went out side and around behind the Shopping Center * * * and I took the billfold out of the pocketbook and threw it away in some weeds. * * * I told my wife and dad that I found the money and I gave my dad $10.00. And me and my wife went up to the Kingsport Road to wait on a cab that I had called."
The statement then shows that the defendant gave $5.00 to the cab driver and later that he bought $2.00 worth of gas to put in another automobile and then he spent $2.80 for bus tickets and $2.06 for two dinners. These amounts total $11.86 and it is shown in the record that the police recovered either $89.00 or $90.00. These items added to the $10.00 that the defendant gave to his father total $21.86, which when added to the amount recovered by the police from the defendant in the billfold amount to well in excess of $100.00.
The defendant assigns as error the failure of the Trial Judge to charge the jury with reference to petit larceny and that the punishment of three years in the penitentiary is excessive.
In the first place, the only credible proof in the record, and as a matter of fact the only proof in the record, is to the effect that the amount of money taken by the defendant was in excess of $100.00. The request made by the defendant that the Court charge the jury on the lesser crime of petit larceny was not reduced to writing as required by Section 40-2517, T.C.A., viz.:
"If the attorneys on either side desire further instructions given to the jury, they shall write precisely what they desire the judge to say further. In such case the judge shall reduce his decision on the proposition or propositions to writing, and read the same to the jury without one word of oral comment it being intended to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of the citizens."
But even if it had been so reduced the Court would not have been justified in so instructing the jury under the facts of this case.
The general rule of law is that petit larceny is included in the indictment for grand larceny, but the Court is not required to instruct on lesser included offenses where there is no evidence, as in this case, to support a lesser included offense. Good v. State, 69 Tenn. 293; Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563; Baker v. State, 203 Tenn. 574, 315 S.W.2d 5.
*322 There is nothing in the record to indicate that the verdict of the jury was excessive or that it is contrary to the weight of the evidence. All of the evidence in the case is to the effect that the defendant is guilty as charged and there is nothing left for this Court to do but to affirm the action of the Trial Court, which it does at the cost of the plaintiff-in-error.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40395
                        Conference Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SERGIO VASQUEZ-ORTIZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:05-CR-800-ALL
                       --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Sergio Vasquez-

Ortiz raises arguments that are foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), which held that

8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate

criminal offense.   The Government’s motion for summary affirmance

is GRANTED, and the judgment of the district court is AFFIRMED.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.


871 P.2d 1231 (1994)
76 Hawai`i 161
Michael S. MYERS, Individually and as Special Administrator of the Estate of Marla Colleen Myers, Deceased, Respondent-Appellant,
v.
SOUTH SEAS CORPORATION, a Hawai`i corporation, dba Rudy's Italian Restaurant and Hideaway Lounge, Petitioner-Appellee, and
Outrigger Hotels Hawai`i, Inc., dba Outrigger Hotels Surf Hotel, Defendants-Appellees, and
Lautusi Taua, John Does 1-10, Defendants.
Nos. 15086, 15117.
Supreme Court of Hawaii.
April 15, 1994.
As Amended on Grant of Reconsideration in Part May 4, 1994.
Margaret C. Jenkins (David J. Dezzani with her on the brief; Goodsill Anderson Quinn & Stifel, of counsel), Honolulu, for petitioner-appellee South Seas Corp.
*1232 Paul D. Hicks (David C. Schutter and Stacy Moniz with him on the brief; Schutter & Glickstein, of counsel), Honolulu, for respondent-appellant Michael S. Myers.
Before LEVINSON, Acting C.J., NAKAYAMA, J., YIM, Circuit Court Judge in place of MOON, C.J., Recused, Town Circuit Court Judge in place of KLEIN, Associate Justice, Recused, and WEIL, Circuit Court Judge in place of RAMIL, Associate Justice Recused.
NAKAYAMA, Justice.
This appeal stems from the fatal assault upon decedent Marla Colleen Myers (Marla) by Lautusi Taua (Taua) on the premises of Rudy's Hideaway Lounge (Rudy's) and the Outrigger Surf Hotel (Outrigger). Petitioner-Appellee Rudy's now challenges the decision of the Intermediate Court of Appeals (ICA) to vacate the circuit court's judgment in favor of Rudy's and remand for trial on the sole issue of Rudy's liability.
We affirm the ICA on different grounds and remand the issue of Rudy's liability for a new trial.

I. BACKGROUND

A. Facts

Marla and her companion Gordon Wesley Sordoff arrived at Rudy's, a restaurant and lounge located in the lobby of the Outrigger, at about 2:00 a.m. on December 25, 1986. Defendant Taua, dressed in an elf costume and carrying a six foot inflatable godzilla doll, was already present at Rudy's when Marla appeared at the bar.
Marla ordered a glass of wine and proceeded to mingle with some of the other patrons inside the lounge. Shortly thereafter, Marla and Taua began shouting at each other apparently as a result of Marla having knocked over Taua's godzilla doll. The shouting escalated to the point that the two exchanged a number of shoves whereupon Marla retreated to her stool at the bar. Taua followed Marla and slapped her in the face. When Marla returned the slap, Taua retaliated by punching her, knocking her off the bar stool. As Marla fell, Taua delivered another blow. Taua then jumped up and landed with both feet on Marla's head as she lay on the ground.
Rudy's bartender, Bruce Spewak (Spewak) and another bar patron, Brian Dragger (Dragger), restrained Taua, thus allowing Marla to get up and leave the premises through a back exit. Spewak and Dragger then released Taua who exited the establishment via the front entrance.
During the confrontation between Marla and Taua, another of Rudy's customers alerted Outrigger's night auditor to the incident in the bar. The auditor was stationed upstairs in the lobby of the hotel. Outrigger maintained a central security dispatch center from which security personnel were dispatched when called. The night auditor, in accordance with Outrigger's security procedure, notified Outrigger's private security dispatcher that assistance was needed at Rudy's.
After leaving Rudy's, Marla came upon the night auditor in the hotel lobby. Crying and shaking, she requested police assistance. As she waited with the night auditor for help, Taua left Rudy's with his godzilla doll and spotted Marla. He approached her and twice warned Marla, "Don't ever do that to me again." Taua pushed Marla, causing her to fall backwards and hit her head on the concrete floor. He then proceeded to kick her three or four times in her mid-section as she lay on the ground. Outrigger's security guards arrived at the scene just as Taua was kicking Marla. As Taua turned to leave, he was stopped by the guards and detained until the police arrived.
Marla remained in a coma for several days after the assault and later died after life support systems were removed. Dr. Gonzalo Chong of Straub Clinic & Hospital, Inc. testified that Marla's death was caused by any one or a combination of the blows to her head.

*1233 B. Procedural History

Michael S. Myers (Myers), individually and as special administrator of Marla's estate, filed suit on May 18, 1987 and amended the complaint on May 9, 1989. The second amended complaint named Taua, Rudy's, Outrigger and John Does 1-10 as defendants.
After extensive discovery and an entry of default against defendant Taua, the plaintiff proceeded to trial against Outrigger and Rudy's. The claims tried were: 1) Rudy's had negligently sold alcoholic beverages in violation of Hawaii Revised Statutes (HRS) § 281-78(a)(2)(B) (1985); 2) Rudy's failed to exercise reasonable care to protect its patrons from harm; 3) Rudy's failed to provide proper and/or adequate security; 4) Rudy's created a false appearance of safety upon which Marla relied; 5) Rudy's had acted negligently; 6) Outrigger failed to provide adequate and proper security; and 7) Outrigger had acted negligently.
The jury returned a special verdict, finding that Outrigger was not negligent, and that Rudy's was negligent but not the legal cause of Marla's injury. The circuit court entered judgment on December 19, 1990. On January 17, 1991, Myers filed a notice of appeal from the judgment, alleging that the circuit court's charge to the jury was in error, that the special verdict was irreconcilably inconsistent, and that the circuit court erred in excluding certain opinion testimony and in precluding the introduction of certain statistical evidence.
On appeal, the ICA affirmed the judgment in favor of Outrigger, ___ Haw.App. ___, 871 P.2d 1235 (1992). The amount of damages awarded was also affirmed,[1] but the judgment in favor of Rudy's was vacated and remanded for trial on the sole issue of Rudy's liability. The ICA held further that the trial court's charge to the jury correctly informed the jury of the relevant law and that the court did not err in its decisions as to the admissibility of evidence.
We granted certiorari to review Rudy's contentions that the ICA erred in remanding the issue of its liability[2] for trial.

II. DISCUSSION

Rudy's contends that the ICA erred in finding an irreconcilable conflict in the special verdict.
A conflict in the jury's answers to questions in a special verdict will warrant a new trial only if those answers are irreconcilably inconsistent. Kalilikane v. McCravey, 69 Haw. 145, 152, 737 P.2d 862, 867 (1987) (citing Vieau v. City and County of Honolulu, 3 Haw.App. 492, 498, 653 P.2d 1161, 1165 (1982)).
The jury's relevant responses to the special verdict were as follows:
1. Was the Defendant RUDY'S HIDEAWAY LOUNGE negligent?
ANSWER: Yes  X  No ____
If your answer to question No. 1 is "No", then do not answer Question No. 2. Go directly to Question No. 3.
2. Was Defendant RUDY'S HIDEAWAY LOUNGE'S negligence a legal cause of injury to the Plaintiff?
ANSWER: Yes ____ No  X
"Legal cause" was defined for the jury in Instruction No. 29:
An act or omission is a legal cause of an injury if it was a substantial factor in bringing about the injury.
The law does not say that there can be only one substantial factor which causes an *1234 injury. On the contrary, many factors, or the conduct of more than one person, may operate independently or together to cause an injury. In such a case, each may be a legal cause of injury.
The jury was also presented with two negligence instructions, numbers 23 and 51. Instruction No. 23 read as follows:
Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the circumstances shown by the evidence. It is the failure to use reasonable care.
Instruction No. 51 provided:
If under all the circumstances there is an unreasonable risk of physical harm to a patron of a cocktail lounge or a person on hotel premises from the conduct of a third person, whether intentional or criminal, and if such risk of harm was reasonably foreseeable by the cocktail lounge or hotel in sufficient time through the exercise of reasonable care to have prevented such harm, then a failure to exercise reasonable care to prevent such harm is negligence.
The ICA correctly determined that in order for the jury to find Rudy's negligent under Instruction No. 51, it would have to find that there was "sufficient time through the exercise of reasonable care to have prevented such harm." Therefore, upon finding Rudy's was negligent, the jury would have to conclude that Rudy's failure to act was a legal cause of the harm suffered by Marla. The jury did find Rudy's was negligent; however, it also determined that Rudy's was not the legal cause of Marla's injuries. Consequently, the ICA held that the jury's verdict was irreconcilably inconsistent.
Although Myers had objected to Instruction No. 51, the ICA found that "while not a paradigm of legal precision, [Instruction No. 51] was not prejudicial to Myers." We agree that Instruction No. 51 is not an incorrect statement of the law regarding the liability of a cocktail lounge or hotel. It was, however, an improper instruction because it was not solely a negligence instruction, but rather included elements of causation. As a result, the jury returned an irreconcilable verdict because, as worded, Instruction No. 51 could not permit a finding of "negligence" without a concurrent finding of "legal cause."
The ICA reasoned that, when presented with the general instructions, Nos. 23 and 29, on negligence and causation and the more fact specific Instruction No. 51 on the duties of a cocktail lounge or hotel to its patrons, the jury chose to rely on the specific as opposed to the general instruction. According to the ICA, "[i]t was more reasonable to infer that the jury was guided by and applied the instructions relating to the duty and breach of duty of a cocktail lounge."
Rudy's argues that even if Instruction No. 51 is confusing, one inappropriate jury instruction should not invalidate the jury's verdict if it can be reconciled under another theory. Rudy's contends that, instead of relying on the specific and more confusing Instruction No. 51, the jury could have found negligence and no causation pursuant to Instruction Nos. 23 and 29. Rudy's alleges error on the part of the ICA for its failure to recognize that the special verdict could be reconciled by applying the more general instructions, Nos. 23 and 29.
It is not enough that the court find any means by which to reconcile an apparently inconsistent verdict at the expense of disregarding the instructions as a whole, for when considering the issue of jury instructions, "the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading." State v. Kelekolio, 74 Haw. 479, 514-15, 849 P.2d 58, 74 (1993) (emphasis added). Thus, Rudy's contention that the ICA erred when it failed to reconcile the special verdict by applying the general as opposed to the specific Instruction No. 51 is without merit.
The ICA's reasoning, however, is also unacceptable inasmuch as it, like Rudy's, presumes *1235 the jury chose to rely on one instruction in lieu of another. As a rule, juries are presumed to be reasonable and follow all of the trial court's instructions. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987) (as quoted in Zafiro v. United States, ___ U.S. ___, ___, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993); Yates v. Evatt, 500 U.S. 391, ___, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991)); see also United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1210 (9th Cir.1992); Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1603, 118 L.Ed.2d 316 (1992). This rule "represents a reasonable practical accommodation of the interests of [the parties involved]." Richardson, 481 U.S. at 211, 107 S.Ct. at 1709. The jury in the case at hand was instructed to "construe each instruction in the light of and in harmony with the other instructions ... [and to] apply the instructions as a whole to the evidence." Therefore, it is not an "inference," as suggested by the ICA, that the jury followed one instruction as opposed to another that supports the present finding of an irreconcilably inconsistent special verdict, but rather a presumption that the jury followed the instructions and considered the instructions as a whole that dictates the conclusion of irreconcilability. Thus, while we agree with the ultimate conclusion and disposition of the case by the ICA, we respectfully disagree with the underlying rationale.

III. CONCLUSION

Based on the foregoing, we affirm the ICA's holding that the jury's special verdict is irreconcilably inconsistent, but on different grounds. Accordingly, we remand for new trial on the sole issue of Rudy's liability.
NOTES
[1]  The ICA concluded that because neither the sufficiency of the evidence to support the jury's determination of the damages suffered by Marla nor the adequacy of the damages had been questioned by any of the parties, the amount of the award had been conclusively determined.
[2]  Myers did not seek certiorari review of the ICA's disposition of the points of error decided against him by the ICA. The points of error alleged by Myers as to specific jury instructions, therefore, are abandoned.


8 Cal.App.3d 636 (1970)
87 Cal. Rptr. 754
LAURA M. WILLIAMS, Plaintiff and Respondent,
v.
DWIGHT G. WILLIAMS, Defendant and Appellant.
Docket No. 26403.
Court of Appeals of California, First District, Division One.
June 11, 1970.
*638 COUNSEL
Walter H. Medak for Defendant and Appellant.
Samuel P. McGeachy for Plaintiff and Respondent.
OPINION
MOLINARI, P.J.
Defendant appeals from that part of a judgment obtained by plaintiff providing for the revocation of a stay of a writ of execution theretofore obtained by defendant.
Plaintiff wife was granted an interlocutory judgment and decree of divorce from defendant husband on April 26, 1966. The decree provided that defendant was to pay plaintiff $140 alimony and $60 child support monthly. It also awarded a community property apartment house in Martinez two-fifths to plaintiff and three-fifths to defendant, and provided that the trust deed installments on said property should be assumed and paid by the parties in the same proportions.
Following the entry of the interlocutory decree, defendant, under an oral agreement with plaintiff, assumed management and control of the apartment house. During the years 1966 and 1967 the expenditures for the operation and maintenance of the apartment house exceeded the income, the net deficit being the sum of $10,848. This deficit was discharged by defendant's unilateral payment of taxes, trust deed payments, repairs and improvements.
Defendant made none of the support payments provided for in the divorce decree. This failure was admitted by defendant without explanation or excuse. The total support delinquency amounted to $4,610.90. Plaintiff secured an ex parte order for a writ of execution towards satisfaction of this delinquency. Defendant then filed a motion to stay the writ of execution and obtained a temporary restraining order against its enforcement. Pursuant to an order to show cause the matter came on for hearing at the conclusion of which the trial court ordered that its prior stay of execution be vacated.
In the proceedings below defendant argued that pursuant to Code of Civil Procedure section 440 plaintiff's share of the apartment house deficit *639 should be set off against her support arrearages. Code of Civil Procedure section 440, in pertinent part, provides as follows: "When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated so far as they equal each other, ..." On appeal he argues that the support obligation and the apartment house deficit are "demands" compensable within the purview of section 440.
(1) Considering defendant's contention that his alimony obligation may be set off against plaintiff's indebtedness to him, we observe that it is well settled in this state that there can be no such offset. (Keck v. Keck, 219 Cal. 316, 320 [26 P.2d 300]; Zaragoza v. Zaragoza, 48 Cal. App.2d 27, 28-29 [119 P.2d 162].) The rationale behind such rule is that alimony is not an ordinary debt but a marital duty of the husband to support his wife. To allow such a setoff would amount to a retroactive alteration of alimony payments or debts accrued and due in contravention of Civil Code section 139 and its proscription of such retroactive alteration.[1] (Keck v. Keck, supra, at pp. 319-321; Zaragoza v. Zaragoza, supra.) In both Keck and Zaragoza it was specifically held that a husband is not entitled to an automatic setoff pursuant to Code of Civil Procedure section 440.
Defendant's reliance on Murchison v. Murchison, 219 Cal. App.2d 600 [33 Cal. Rptr. 285], is misplaced. There, the husband was allowed to offset a monthly $300 payment to the wife under a property settlement agreement against taxes paid by the husband for the wife on the rationale that the monthy payment was a contractual obligation rather than alimony. (P. 605.)
Defendant also urges that his child support arrearages should be set off against plaintiff's debt to him. Although there is no California case dealing directly with the issue, it seems clear that the rationale of Keck and Zaragoza should apply. (2) An order for child support, like alimony, is not an "ordinary debt" but rather a court-imposed obligation to provide for one's child. (3) Moreover, Civil Code section 139 prohibits retroactive alteration of child support as well as alimony.
In view of the nature of child support and the strong public policy favoring such support in this state we see no necessity, in view of the rationale of Keck and Zaragoza, to look to other jurisdictions for guidance. We do *640 note, however, that the case of Wheeler v. Wheeler, 37 Wn.2d 159 [222 P.2d 400], upon which defendant relies, is not apposite to the case before us. That court allowed a setoff against prospective support obligations in a situation wherein the proceeds against which the husband was accorded credit were in fact used to support the child.
There are, moreover, other significant reasons why defendant may not set off the alleged debt against child support arrearages. (4) Code of Civil Procedure section 440 contemplates compensated cross-demands by one party against the other. Indeed, child support is not the type of cross-demand contemplated by section 440 because the obligation is due to the child rather than the mother. If it be considered a debt it is, in essence, a debt owing to the child since a father's duty to support his minor children is a continuing obligation "during the minority of the children of the marriage." (Estate of Goulart, 218 Cal. App.2d 260, 263 [32 Cal. Rptr. 229, 6 A.L.R.3d 1380]; Civ. Code, § 138.) In essence, the parent, to whom such support is paid, is but a mere conduit for the disbursement of that support. Finally, the very nature of child support gravitates against the allowance of the setoff sought. Such support is strongly favored in the law and statutes providing for it are to be liberally construed to promote their purpose of protecting the family. (See Estate of Filtzer, 33 Cal.2d 776, 783 [205 P.2d 377]; Harlan v. Harlan, 154 Cal. 341, 350 [98 P. 32].) To allow the offset sought by defendant would frustrate both this purpose and the trial court's support order, since it would allow him to use child support funds to maintain property held in common by him and plaintiff.
(5) Since defendant's only basis for such relief is the claimed offset against alimony and child support, in view of the foregoing we perceive no abuse of discretion on the part of the trial court in refusing to recall, quash or vacate the writ of execution. (See Slevats v. Feustal, 213 Cal. App.2d 113, 119 [28 Cal. Rptr. 517]; Noice v. Noice, 195 Cal. App.2d 204, 213 [15 Cal. Rptr. 703].) We observe here that the effect of the court's ruling is not a declaration that defendant is not entitled to reimbursement for unilateral expenditures made on commonly held property under principles which permit a coowner to recover for such expenditures against the other coowner. (See Conley v. Sharpe, 58 Cal. App.2d 145, 154-156 [136 P.2d 376]; Southern Adjustment Bureau, Inc. v. Nelson, 230 Cal. App.2d 539, 541 [41 Cal. Rptr. 148]; Combs v. Ritter, 100 Cal. App.2d 315, 320 [223 P.2d 505]; Higgins v. Eva, 204 Cal. 231, 238 [267 P. 1081]; Mercola v. Chester, 97 Cal. App.2d 140, 143 [217 P.2d 32].) Nor is it a holding that such offset in a proper case may not be urged under Code of Civil Procedure section 440. (See Hauger v. Gates, 42 Cal.2d 752, 755 [269 P.2d 609].) Rather, the only purport of the lower court's decision in the instant proceeding *641 is that such expenditures may not be offset against a claim for alimony or child support.
The judgment is affirmed.
Sims, J., and Elkington, J., concurred.
NOTES
[1]  Civil Code section 139, providing for alimony and child support, in pertinent part, reads as follows: "That portion of the decree or judgment making any such allowance or allowances, ... may be modified or revoked at any time at the discretion of the court except as to any amount that may have accrued prior to the order of modification or revocation."


937 F.2d 623
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.In re Edward J. DEMMEL and Hartley Owen.
No. 91-1122.
United States Court of Appeals, Federal Circuit.
June 7, 1991.

On Appeal from the United States Patent and Trademark Office Board of Patent Appeals and Interferences, in Case No(s).  88-4031.
PTO
AFFIRMED.
Before NIES, Chief Judge, BENNETT, Senior Circuit Judge, and MAYER, Circuit Judge:
Judgment
PER CURIAM.

1
AFFIRMED.  See Fed.Cir.R. 36.


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,913

KENISHA ERONDA BERRY, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL
FROM CAUSE NO. 89,642 IN THE 252ND DISTRICT COURT
JEFFERSON COUNTY

 Hervey, J., filed a dissenting opinion in which Keller, P.J., Meyers and Keasler,
JJ., joined.
DISSENTING OPINION

 I respectfully dissent.  At the very least, a rational jury could have found that there is a
probability that appellant would be dangerous to her unwanted babies.  A rational jury could even
have found that appellant would, in fact, be very dangerous to that segment of society.  This should,
as a matter of appellate review, be dispositive of appellant's sufficiency challenge to the jury's
finding on the future-dangerousness special issue.
	The Court nevertheless decides that the State failed to meet its burden of proof on the future-dangerousness special issue.  The Court's opinion states:
	We hold that the state did not meet its burden of proving beyond a reasonable doubt
that there is a probability that appellant, if allowed to live, would commit criminal
acts of violence in the future so as to constitute a continuing threat, whether in or out
of prison.  (Citation omitted).  Appellant murdered one child and abandoned
another[ (1)], but defense witnesses testified that these two incidents were out of
character and that she was a loving and caring mother to her other three children.
Appellant's expert witnesses opined that she was depressed and under extreme stress
when she killed Malachi and abandoned Paris.  She had no criminal record, and the
state presented no other evidence of violence in her past.  Each of her offenses
involved a pregnancy, but testimony from both defense and state witnesses showed
that her potential for becoming pregnant while incarcerated would be "extremely
low."  Further, appellant was in her twenties when she was convicted of capital
murder.  If she received a life sentence and were paroled forty years later, she would
likely be beyond her childbearing years and thus could not repeat such an offense.
The state's evidence, which consisted of appellant's murder of Malachi, her
subsequent abandonment of Paris, her lack of remorse for these crimes, and the
unlikely possibility that she might become pregnant in prison, does not prove beyond
a reasonable doubt that there is a probability that she would commit criminal acts of
violence that would constitute a continuing threat to society.

Maj. op. at 23-24.

	This analysis does not "view the evidence in the light most favorable to the verdict."  See
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).  It credits evidence and inferences therefrom that
a rational jury could have rejected and discredits other evidence and reasonable inferences therefrom
upon which a rational jury could have based an affirmative answer to the future-dangerousness
special issue.  But see id. (sufficiency standard does not permit appellate court "to make its own
subjective determination").  This usurps the jury's role and places the Court in the role of asking
whether it believes, instead of asking whether a rational jury could have believed, that there is a
probability that appellant would be dangerous.  But see id.
	The State presented evidence that in 1998 appellant murdered her new-born child named
Malachi by duct-taping his mouth shut while still alive, by duct-taping his arms to his side to
immobilize him, and by placing Malachi in a garbage bag and throwing him in a trash dumpster
where he suffocated to death.  Five years later, appellant tried to murder another of her new-born
children named Paris by placing Paris, naked, on a fire-ant mound at a remote location where it was
extremely unlikely that Paris would be found alive.  These were calculated crimes conceived and
carried out by appellant alone apparently with the motive to keep the father of her other three
children from discovering that she was "messing" with someone else.  Appellant has shown no
remorse whatsoever for her attempted and successful acts of infanticide.  She has failed to take any
responsibility for Malachi's death.  She blamed someone else for trying to murder Paris, but this
deception could not withstand scrutiny.  She "plead the Fifth" and accused the prosecutor of having
a "personal vendetta" against her when the prosecutor began to question her at trial about how Paris
ended up naked on a fire-ant mound in a remote location. (2)
	Q. [PROSECUTION]: What did you do with Paris?

	[THE DEFENSE]: Your Honor, I have to object to any reference to any extraneous
matter that's not appropriate for this jury.

	[THE COURT]: Overruled.

	[THE PROSECUTION]: I submit 404(b), Your Honor, to show intent.

	Q. What did you do with Paris?

	A. [APPELLANT]: (No response)

	[THE DEFENSE]: And Your Honor, we would also object under 404(b) that the
prejudicial effect outweighs any probative value to that particular thing.

	[THE COURT]: That's overruled.

	Q. Didn't you take Paris out on Hillebrandt Road and dump her in an ant bed?

	A. I plead the Fifth.

	Q. You can't plead the Fifth.

	A. Well, I am.

	Q. Because you're on the stand.  Tell the jury what you did to Paris, Ms. Berry.

	A. This is my trial about Malachi, not Paris.

	Q. Tell the jury what you did to Paris.

	A. I'm charged with capital murder.  Paris is still alive.

	[THE PROSECUTION]: I would ask the Court to instruct the witness to answer the
question.

	[THE COURT]: Ms. Berry, I'm going to instruct you to answer the question.

	A. This is a capital murder trial.

	Q. You took Paris out on Hillebrandt Road last summer and dumped her in an ant
bed; and she's alive, isn't she?  I saw her today.

	A. Really?

	Q. Yes, complete with the scars from the ant bites.  Tell the jury what you did to
Paris.

	[THE DEFENSE]: Your Honor, I have to object.  For one thing, the prosecutor's
screaming; and I think that's inappropriate in the courtroom.  And secondly, the
prosecutor's testifying as to what he's seen and if he wants to take the stand, I'll be
happy to cross examine him, but he's not a witness.

	[THE COURT]: Overruled.  Ms. Berry, I'm going to instruct you again to answer the
question.

	[APPELLANT]: It's okay that he's yelling.  It's a personal vendetta that he got
against me.

	[THE PROSECUTION]: I would once again ask the Judge to instruct Ms. Berry to
answer the question.

	[THE COURT]: Ms. Berry, I'm going to instruct you again to answer the questions
that he's asking you.

	[APPELLANT]: If it don't have nothing to do with this trial-
* * *
	Q. Tell the jury what you did to Paris.

	A. You tell them.

	Q. What did you do to her, Ms. Berry?  Did you do anything to her?

	A. (No response)

	Even appellant's own expert (Gripon) provided testimony that supports a finding that there
is a probability that appellant would be dangerous in the "free world" to her unwanted babies.
	Q. [PROSECUTION]: If she gets in a circumstance where she is around a child that
she doesn't want or doesn't care for in the future, what do you think she's going to
do?

	A. [GRIPON]: Well, I don't think that's going to happen.

	Q. But if it does-

	A. Given her circumstances.  If it were a child that she had given birth to under
similar circumstances to those that we've looked at here, I would consider that a high
risk situation.  In other circumstances, I would not consider it to be substantially risky
at all; but I certainly would not suggest that she become pregnant and give birth in
an unsupported setting alone and face whatever kind of impact she feels that would
have on her life, if that were possible, although I can't conceive of a set of
circumstances in which that's possible.

	Q. But she's already done it five times.

	A. Done what, given birth?

	Q. Getting pregnant without people knowing.

	A. Well, I don't know whether all of those were unknown.  I know that most were.
That's true.

	During closing jury arguments at the punishment phase, the prosecution stated to the jury that
the way to answer the future-dangerousness special issue was if appellant "was out and she's among
her children or she has another child, do you think she's a future danger to that child."  The
prosecution also deduced from the evidence that appellant is "evil" and asked the jury to "imagine
someone more evil than would do these two things to two different children on two different days
five years apart."
	Now, you've heard a bunch of testimony.  You've heard about future danger and you
heard Dr. Gripon, who was hired by the defense and he said that she's not a future
danger because the victim pool was low because in prison she's not going to have
access.  Remember we talked to you about what society was.  We talked about it for
a long time.  Society-when I talked to you guys-I'm going to do this.  Imaginary
circle-what does society mean to you folks?  You-all agreed it was anyone around
her.  And we all asked you, when you're asking yourself that question, you have to
assume whether she's a future danger sitting there as she sits today, if she was out
among us, among other children, is she a future danger.  Everything Dr. Gripon said
was based on one premise, that she's locked up and that somebody, not her,
somebody else, would intervene to protect that child.  Remember, he said, oh, she'll
be locked up.  Well, that assumes the system is locking her up.  Well, somebody
would catch her.  That assumes somebody else will see that she's pregnant,
somebody that's more perceptive than the family that she's hid all these pregnancies
from.  That assumes that even after she has the baby that they could intervene and get
to her.  That assumes that she's locked up.

	I submit to you the way you answer this question is if she was out and she's among
her children or she has another child, do you think she's a future danger to that child.
What was not asked of Dr. Gripon was how many victims in her way does it take to
convince him or anybody that she's a future danger.  A person repeatedly trying to
kill her children, I submit to you, that is an obvious answer.  Regardless of what the
answer to your second question is, the first one should be a resounding "yes."  She
murdered [Malachi].  She lied to Dr. Gripon, "Oh, I didn't do it."  So, did he assume
that she's telling him the truth; or do you assume she was lying?  The material-the
information he bases his answers on were partially based on the story from her.  And
you got a big taste of her yesterday.  She's still lying.  She lied to her family, she lied
to Gripon and she lied to you.  So, how many children do we have to bury before
you're convinced that she's a future danger?  Some of you-all said one.  I would hope
all of you say two.
* * *
	There is an evil and dark side to this woman that her family does not know.  There
is an evil and dark side to this woman that very few people have realized until we see
what she creates because the opposite of creation is destruction; and she has
destroyed lives everywhere she goes.  And you ask yourself is she a future danger
today, was she a future danger in 1996 when she had her first baby, oh, yeah.  Was
she a future danger in 1997, was she a future danger in 1998, was she a future danger
on June the 5th of 2003, the day before she dropped her most recent child into a fire
ant bed.  What has changed from that day to today as she sits there?  Absolutely
nothing, absolutely nothing.

	There has been no showing of remorse.  There has been no showing of psychological
damage or drug abuse.  She came from a beautiful home with a loving family.  Some
people are just evil.  Some people are just evil.  And I want you to imagine someone
more evil than would do these two things to two different children on two different
days five years apart.

	The future-dangerousness special issue asks the jury to decide "whether there is a probability
that the defendant would commit criminal acts of violence that would constitute a continuing threat
to society."  See Article 37.071, § 2(b)(1), Tex. Code Crim. Proc., (emphasis supplied).  The
Court's opinion also seems to acknowledge that this special issue asked the jury to decide if there
is a probability that  appellant would be dangerous "in or out of prison."  Maj. op. at 23 ("state did
not meet its burden of proving beyond a reasonable doubt that there is a probability that appellant,
if allowed to live, would commit criminal acts of violence in the future so as to constitute a
continuing threat, whether in or out of prison"); see Salazar v. State, 38 S.W.3d 141, 145-46
(Tex.Cr.App. 2001) (defendant, who was convicted of murdering two-year-old daughter of his
girlfriend, presented expert witness who admitted that defendant would be dangerous in the "free
world"); Smith v. State, 898 S.W.2d 838, 851 n.19 (Tex.Cr.App. 1995) (future dangerousness special
issue requires jury to decide if the defendant would be dangerous "whether he is in prison or out of
prison"). (3) This is also consistent with the State's closing jury arguments during the punishment
phase that appellant would be dangerous "if she was out and she's among her children or she has
another child."
	The future-dangerousness special issue, therefore, does not exempt from the death penalty
those defendants who are dangerous only to a segment of society that they probably will not
encounter in prison or are not likely to encounter again if they are paroled forty or so years later.  See
Footnote 3.  If that was true, the future-dangerousness special issue would exempt from the death
penalty most parents who murder their children, contrary to the clear legislative intent expressed in
Section 19.03(a)(8) making it a capital offense for a person to murder "an individual under six years
of age."  It would also exempt from the death penalty many other killers such as children who
murder their parents and middle-aged serial killers who prey on young children.
	In this case, a rational jury could have found that there is a probability that appellant would
be dangerous "out of prison."  She cold-heartedly murdered one child and attempted to murder
another child on different occasions five years later.  She is unremorseful and fails to take
responsibility.  This evidence satisfies every measure of future-dangerousness that this Court has
applied.  See, e.g., Salazar, 38 S.W.3d at 145-46 (lack of remorse and failure to take responsibility
are factors that support jury's affirmative answer to "future-dangerousness" special issue). (4)  A
rational jury could have found that appellant is the same unremorseful, cold-blooded killer that she
was in 1998 when she murdered Malachi and that she was in 2003 when she tried to murder Paris. (5)
That appellant might be controlled in prison in no way detracts from this or a rational finding that
there is a probability that she would be dangerous to her unwanted children.
	I respectfully dissent.
								Hervey, J.

Filed: May 23, 2007
Publish
1. 	It is not entirely accurate to merely state that appellant abandoned Paris.  A rational jury could
have found that it was appellant's conscious desire to kill Paris.
2. 	Appellant had testified on direct-examination that Malachi died a natural death and that she
duct-taped him and threw him in the garbage.  She never explained, on either direct-examination or
on cross-examination, what happened to Paris.
3. 	The Legislature's use of  "would" instead of "will" in the future-dangerousness special issue
also supports the claim that this special issue asked the jury to decide, among other things, whether
there is a probability that appellant would be dangerous "if she was out among us."  It is not
dispositive of appellant's sufficiency claim that she might not murder any more of her children
because of a low probability that she will not have any more children, if sentenced to life in prison.
This Court has held that "society includes not only free citizens but also inmates in the penitentiary."
See McDuff v. State, 939 S.W.2d 607, 620 (Tex.Cr.App. 1997); Jones v. State, 843 S.W.2d 487, 495
(Tex.Cr.App. 1992).
4. 	This evidence satisfies at least five of the eight "non-exclusive list of factors that may be
considered in determining whether a defendant constitutes a continuing threat to society" set out in
numerous decisions of this Court such as Solomon v. State, 49 S.W.3d 356, 362-63 (Tex.Cr.App.
2001).  These non-exclusive factors are:

	(1) the circumstances of the capital offense, including the defendant's state of mind
and whether [s]he was acting alone or with other parties;
	(2) the calculated nature of the defendant's acts;
	(3) the forethought and deliberateness exhibited by the crime's execution;
	(4) the existence of a prior criminal record and the severity of the prior crimes;
	(5) the defendant's age and personal circumstances at the time of the offense;
	(6) whether the defendant was acting under the duress or the domination of another
at the time of the commission of the offense;
	(7) psychiatric evidence; and
	(8) character evidence.
5. 	Appellant is not very different from other defendants who have been convicted and sentenced
to death for murdering their children.  See, e.g., Routier v. State, 112 S.W.3d 554, 557 (Tex.Cr.App.
2003); O'Bryan v. State, 591 S.W.2d 464, 467-70,480-81 (Tex.Cr.App. 1979).