Alfred Castellon Lopez v. The State of Texas--Appeal from 385th District Court of Midland County

11th Court of Appeals

Eastland, Texas

Opinion

Alfred Castellon Lopez

Appellant

Vs. No. 11-04-00048-CR -- Appeal from Midland County

State of Texas

Appellee

The jury convicted appellant, Alfred Castellon Lopez, of delivery of a controlled substance, to-wit: heroin, and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 20 years.[1] The jury also imposed a fine of $10,000 against appellant. Appellant raises eight issues on appeal. We affirm.

Officer Seth Herman of the Midland Police Department testified that he purchased heroin from appellant on August 30, 1999, while working as an undercover narcotics officer. [2] Appellant was not arrested at the time of the transaction because Officer Herman was conducting a Abuy/walk@ investigation in hopes of identifying the source of the heroin. Dennis Hambrick, a criminalist/chemist with the Texas Department of Public Safety (DPS) crime laboratory in Midland, testified that his analysis of the substance which Officer Herman purchased from appellant confirmed the presence of heroin. Hambrick additionally testified that the substance weighed .54 grams.

Appellant attacks Hambrick=s qualifications to testify as an expert in his first issue. He contends that the trial court erred in overruling his objection that Hambrick=s testimony did not satisfy the requirements for scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992). The Supreme Court held inDaubert that scientific expert testimony must be relevant and reliable to be admitted. In Kelly, the Texas Court of Criminal Appeals established the following three-part test for determining the reliability of scientific evidence: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly v. State, supra at 573; see TEX.R.EVID. 702. The burden is upon the proponent of the evidence to prove by clear and convincing testimony that the evidence meets that test. Kelly v. State, supra at 572-73. We will not disturb a trial court=s decision to admit expert testimony absent an abuse of discretion. Hinojosa v. State, 4 S.W.3d 240, 251 (Tex.Cr.App.1999).

Hambrick testified that he has been employed as a criminalist/chemist with the DPS crime laboratory in Midland for over 13 years. His duties included analyzing unknown testing samples that are suspected to contain controlled substances. He obtained a bachelor of science degree in chemistry from Sul Ross State University. He has also undergone advanced training in chemistry at Sul Ross and the DPS laboratory in Austin.

Hambrick testified that he performed two types of tests on testing samples that are suspected of containing controlled substances. The first was a screening test to determine the group of controlled substances which may be present in the sample. When testing for the presence of heroin, Hambrick initially used a marquee test wherein he looked for a color reaction after a chemical reagent was applied to the testing sample. The second test involved using an instrument which performed gas chromatograph mass spectrometry. The instrument first separated the testing sample into its component parts by using heat to separate the molecules in the sample. It then identified the substances which are contained in the testing sample by identifying the molecules. Hambrick testified that these tests were performed in all of the DPS laboratories in Texas to identify controlled substances. He also stated that they were used on a national level to identify suspected controlled substances.

The State elicited testimony from Hambrick which detailed his specialized training and extensive experience in analyzing controlled substances. Hambrick=s testimony addressed the acceptance of the tests he performed within the scientific community as valid methods for determining the composition of suspected controlled substances. Based upon this testimony, the trial court did not abuse its discretion by denying appellant=s objection to the reliability of Hambrick=s testimony. Appellant=s first issue overruled.

In his second issue, appellant argues that the trial court erred in admitting the substance which Hambrick tested and Hambrick=s report containing the test results. Appellant contends that these items were inadmissible because the State did not adequately establish the chain of custody for the substance. It does not appear that appellant raised the argument of an inadequate chain of custody as a ground when objecting to the admission of these evidentiary items. Accordingly, appellant has failed to preserve error on this ground. See TEX.R.APP.P. 33.1(a)(1)(A).

Moreover, even if appellant preserved error on his chain of custody complaint, the trial court did not abuse its discretion in admitting these items of evidence. We review the trial court=s decision to admit evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000). If evidence is properly identified, questions concerning care and custody typically go to the weight, not the admissibility, of the evidence. Foster v. State, 101 S.W.3d 490, 498 (Tex.App. - Houston [1st Dist.] 2002, no pet=n). Proof of the beginning and the end of the chain of custody will support admission of the evidence unless there is a showing of tampering or alteration. Durrett v. State, 36 S.W.3d 205, 208 (Tex.App. - Houston [14th Dist.] 2001, no pet=n). The chain of custody is established if an officer testifies that he seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Cr.App.), cert. den=d, 522 U.S. 917 (1997). When evidence is sent to a laboratory for analysis, the proponent must introduce testimony showing that the laboratory handled the evidence in the same way to conclusively establish the chain of custody. See Medellin v. State, 617 S.W.2d 229, 232 (Tex.Cr.App.1981). When the State completes the chain of custody from the initial collection of the evidence to inside the laboratory, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight of the evidence, not its admissibility. See Medellin v. State, supra at 232; Silva v. State, 989 S.W.2d 64, 68 (Tex.App. - San Antonio 1998, no pet=n).

After he purchased the substance from appellant, Officer Herman returned to the Midland Police Department. He weighed the substance, placed it in a sealed envelope, and then stored it in the narcotics unit safe. Officer Herman subsequently removed the substance for the purpose of transferring it to the Midland Police Department=s evidence room. He deposited the substance in a drop-off evidence locker for it to be retrieved by evidence room personnel at a later date.

Ronny L. Wetterman, a retired property and evidence clerk for the Midland Police Department, testified that he retrieved the substance which Officer Herman stored in the drop-off evidence locker for storage in the evidence room. He subsequently transported the substance to the DPS Laboratory in Midland for analysis. Wetterman later retrieved the substance from the laboratory after it was analyzed.

Hambrick testified that each piece of evidence delivered to the laboratory is assigned a unique case number. The item is checked at delivery to determine if it was delivered in a sealed condition. Hambrick testified that, in this instance, the testing sample was delivered to him by Wetterman on October 15, 1999, in a sealed envelope. The item was then placed into the DPS laboratory=s vault for storage until it was analyzed at a later time. Hambrick performed the analysis on the testing sample on October 25, 1999. After he analyzed the testing sample, he returned it to the laboratory=s vault for storage until the Midland Police Department subsequently retrieved it. The testimony from Officer Herman, Wetterman, and Hambrick established the beginning and the end of the custody chain. Furthermore, Hambrick testified that the envelope containing the evidence was sealed at the time he retrieved it for testing. The trial court did not abuse its discretion in admitting the testing sample and the report generated from the testing. Appellant=s complaints about purported gaps in the custody chain are matters pertaining to the weight, rather than the admissibility, of the evidence. Appellant=s second issue is overruled.

Appellant asserts in his third issue that the trial court erred in failing to include a definition of reasonable doubt in the court=s charge to the jury. In Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), the Texas Court of Criminal Appeals adopted a definitional instruction for Areasonable doubt@ and required that the instruction be submitted to the jury in all criminal cases.

See Colbert v. State, 108 S.W.3d 316, 318 (Tex.Cr.App.2003). The court subsequently overruled Geesa=s requirement for the trial court to instruct the jury on the definition of reasonable doubt in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000). The court concluded in Paulson that the Geesa definition was confusing and logically flawed. Paulson v. State, supra at 573.

Appellant acknowledges that the holding in Paulson is the controlling authority with respect to his contention. He urges that this court decline to follow Paulson because it purportedly places the exercise of a constitutionally-mandated protection in the hands of the prosecutor.[3] As noted in Paulson, the United States Supreme Court determined in Victor v. Nebraska, 511 U.S. 1, 5 (1994), that the United States Constitution does not require trial courts to instruct the jury regarding the meaning of reasonable doubt as a matter of course. Paulson v. State, supra at 573. Accordingly, we will follow Paulson. Appellant=s third issue is overruled.

Appellant=s fourth issue addresses the admission of State=s Exhibits Nos. 5, 7, and 8 during the punishment phase. State=s Exhibit No. 5 consisted of a Apen packet@ detailing a 1981 conviction for attempted aggravated kidnapping with intent to inflict body injury arising out of Cause No. CRB-8498 in the 142nd District Court of Midland County. State=s Exhibit No. 5 did not contain photographs of the person convicted. However, it contained a document identifying the person convicted as AAlfredo Castillon Lopez@ with a date and place of birth of February 26, 1953, in Martin County. State=s Exhibit No. 5 also contained documents ordering the commitment of AAlfredo Castillon Lopez@ for a 1978 conviction for the offense of aggravated assault arising from Cause No. 6,957 in the 142nd District Court of Midland County. The order of commitment was accompanied by an order revoking probation in Cause No. 6,957. State=s Exhibit No. 5 indicated that AAlfredo Castillon Lopez@ was confined to serve the sentence imposed in Cause No. 6,957 at the same time as the sentence imposed in Cause No. CRB-8498.

State=s Exhibit No. 7 consisted of an arrest record for AAlfredo Castillon Lopez@ arising from an arrest occurring on October 23, 1978.[4] State=s Exhibit No. 7 listed the date and place of birth for AAlfredo Castillon Lopez@ as February 26, 1953, in Stanton.[5] State=s Exhibit No. 8 consisted of two photographs taken of an individual. Margaret Dutchover, the chief custodian of records for the Midland County Sheriff=s Office, described State=s Exhibit No. 7 as a booking sheet prepared in connection with the arrest of AAlfredo Castillon Lopez@ on October 23, 1978. She described State=s Exhibit No. 8 as booking photographs taken of him at the time of his arrest on October 23, 1978.

The State offered State=s Exhibits Nos. 7 and 8 in an effort to provide information identifying appellant as the person ordered to be confined in Exhibit No. 5. Specifically, the State relied on the same date and place of birth being listed in State=s Exhibits Nos. 5 and 7. The State relied upon State=s Exhibit No. 8 to identify appellant as the same person that is the subject of State=s Exhibits Nos. 5 and 7.

Appellant asserts that the trial court erred in admitting State=s Exhibit No. 5 because the State failed to prove it was a business record. However, appellant did not object to the admission of State=s Exhibit No. 5 on this basis. Appellant has not preserved error with respect to his business record contention.[6] See Rule 33.1(a)(1)(A). Moreover, the documents comprising State=s Exhibit No. 5 were accompanied by a document certifying them as official records of the Texas Department of Criminal Justice - Institutional Division. Certified copies of a judgment and sentence are admissible as self-authenticated public records. See TEX.R.EVID. 901(b)(7) and 902(1) & (4). Accordingly, State=s Exhibit No. 5 was not dependent on the business records exception for its admissibility. See TEX.R.EVID. 803(6). The public records exception of the hearsay rule applied to the documents. See TEX.R.EVID. 803(8). Furthermore, the certification of the documents as copies of official public records made them admissible without additional testimony. See Rule 902(4).

Appellant also contends that the State failed to establish the authenticity of the photographs contained in State=s Exhibit No. 8. Dutchover testified that the photographs accurately depicted the person arrested based upon her comparison of the photographs to the negatives in her file.[7] Appel-lant contends that Dutchover lacked sufficient expertise to offer her lay opinion regarding this comparison. We disagree with this assertion. A photograph may be authenticated by the testimony of any witness who has personal knowledge that the particular item accurately represents the scene or event it purports to portray. Drone v. State, 906 S.W.2d 608, 611 (Tex.App. - Austin 1995, pet=n ref=d). Additionally, Dutchover=s testimony was admissible as opinion evidence from a lay witness under TEX.R.EVID. 701 because it was rationally based on the perception of the witness and it was helpful to the determination of a fact in issue.

Appellant objected to the admission of State=s Exhibits Nos. 5, 7, and 8 on the basis that the State failed to proved that they related to appellant. Although the evidence is attenuated, State=s Exhibits Nos. 5, 7, and 8, provided the jury with information with which it could have identified appellant as the person confined for the offenses set out in State=s Exhibit No. 5. The trial court did not abuse its discretion in admitting these matters into evidence. Appellant=s fourth issue is overruled.

Appellant=s fifth issue challenges the trial court=s admission of two pen packets containing records of two prior felony convictions which the State alleged for enhancement purposes. The State offered the pen packets into evidence during the punishment phase as self-authenticated documents. The first pen packet, State=s Exhibit No. 3, contained documents pertaining to a 1994 conviction for tampering with government records arising from Cause No. B-23,326 in the 161st District Court of Ector County. The second pen packet, State=s Exhibit No. 4, contained documents pertaining to a 1989 conviction for 3rd degree theft of property arising from Cause No. W-CRB-15,404 in the 238th District Court of Midland County. Both of the pen packets contained photographs of the individual convicted for the respective offenses. The pen packets were accompanied by documents certifying them as official records of the Texas Department of Criminal Justice - Institutional Division.

Appellant objected to the admission of State=s Exhibits Nos. 3 and 4 solely on the basis that the State failed to establish that they were admissible under the business records exception. Contrary to appellant=s argument, State=s Exhibits Nos. 3 and 4 were not dependent on the business records exception for their admissibility. See Rule 803(6). The public records exception of the hearsay rule applied to the documents. See Rule 803(8). Furthermore, the certification of the documents as copies of official public records made them admissible without additional testimony. See Rule 902(4). Appellant=s fifth issue is overruled.

In his sixth issue, appellant complains that the trial court purportedly made an improper comment on the weight of the evidence. See TEX. CODE. CRIM. PRO. ANN. art. 38.05 (Vernon 1979). He bases this complaint upon the following statement made by the trial court in overruling appellant=s objection to Hambrick=s qualifications to testify as an expert: AI=ll overrule the objection and let him testify as an expert.@ (Emphasis added) However, appellant did not make an objection to the trial court=s statement.[8] In order to complain on appeal about an improper comment on the weight of the evidence, an objection to the comment must be made in the trial court. See Rule 33.1(a)(1)(A). Appellant=s sixth issue is overruled because appellant did not preserve his contention that the trial court made an improper comment on the evidence.

Appellant=s seventh issue concerns the use of shackles and handcuffs to restrain him during trial. He raised this issue prior to voir dire outside of the jury panel=s presence. The trial court acknowledged on the record that appellant was restrained by leg shackles and handcuffs connected to a waist chain. Defense counsel protested the use of the handcuffs on the basis that they would restrict appellant=s ability to assist counsel in the defense of the case. Defense counsel additionally asserted that the jury=s observation of the restraints would be unduly prejudicial to appellant.

The trial court overruled appellant=s request to have the restraints removed. In issuing this ruling, the trial court stated that it was concerned about an allegation that appellant had injured a jailer prior to trial. The trial court further stated that it would provide opportunities for appellant to confer privately with defense counsel as a substitute for appellant not being able to write out questions or comments for counsel to review.

Texas courts have permitted criminal defendants to be restrained in the presence of the jury when there is a showing of exceptional circumstances which manifest a need for the restraint of the accused. Long v. State, 823 S.W.2d 259, 282-83 (Tex.Cr.App.1991), cert. den=d, 505 U.S. 1224 (1992). Restraints have been authorized in trials where the defendant has posed a threat to others, posed a threat to himself, interfered with court proceedings, or attempted to escape. Culverhouse v. State, 755 S.W.2d 856, 859-60 (Tex.Cr.App.), cert. den=d, 488 U.S. 863 (1988). The trial court=s decision regarding the use of restraints is reviewed under an abuse of discretion standard. Cooks v. State, 844 S.W.2d 697, 722 (Tex.Cr.App.1992), cert. den=d , 509 U.S. 927 (1993).

The record does not reflect that the trial court abused its discretion in permitting appellant to be restrained during trial. The trial court complied with the requisite procedural safeguards by conducting a hearing on the matter outside of the presence of the jury. See Gammage v. State, 630 S.W.2d 309, 314 (Tex.App. - San Antonio 1982, pet=n ref=d). The trial court clearly stated the reason for its ruling at the hearing. See Long v. State, supra at 282. Furthermore, the reason stated by the trial court B with regard to an allegation that appellant had injured someone B constituted a permissible basis for allowing the restraints. Appellant=s seventh issue is overruled.

In his eighth issue, appellant attacks the admission of State=s Exhibits Nos. 5, 7, and 8. The complaints which appellant raises in support of this issue are essentially the same complaints he raised in his fourth issue. Our ruling on appellant=s fourth issue is dispositive of his eighth issue. Appellant=s eighth issue is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

June 16, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The jury made a finding of Atrue@ to two prior felony convictions alleged by the State for enhancement purposes.

[2]Appellant does not attack the sufficiency of the evidence supporting his conviction.

[3]Appellant bases his argument on a statement in Paulson wherein the court stated that the inclusion of a definition of reasonable doubt would not constitute reversible error if both the State and the accused agreed to its inclusion. Paulson v. State, supra at 573.

[4]It appears that State=s Exhibit No. 9 constitutes the record for the arrest of AAlfredo Castillon Lopez@ in connection with the offense for which he was convicted in Cause No. 6,957.

[5]The trial court took judicial notice that Stanton is located in Martin County.

[6]Appellant also attacks the admission of State=s Exhibit No. 7 on the grounds that it was not a complete business record. Appellant did not preserve error on this contention because he did not object to the admission of this evidentiary item on that basis.

[7]No evidence was offered regarding the source of State=s Exhibit No. 8. The photographs clearly depict a male either wearing or holding a sign with the following identifying information: A Sheriff=s Dept. Midland Texas, 12446, [10/24/78].@ The corresponding arrest record (State=s Exhibit No. 7) lists an AID Number@ of A12,446.@

[8]We do not express an opinion as to whether or not the trial court=s statement constituted an impermissible comment on the weight of the evidence.