In the Matter of J. A. C.--Appeal from 313th District Court of Harris County

Affirmed and Memorandum Opinion filed June 14, 2005

Affirmed and Memorandum Opinion filed June 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-02-00806-CV

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IN THE MATTER OF J.A.C.

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 01-09460J

M E M O R A N D U M O P I N I O N

Appellant, J.A.C., a juvenile, was found to have engaged in delinquent conduct by committing the offense of possession of marijuana. In three issues, appellant claims the trial court erred in failing to ensure the court reporter recorded a bench conference regarding an objection to evidence of a prior conviction and in its rulings admitting that evidence and excluding evidence of the results of a drug test taken the day after appellant was arrested. We affirm.

Factual and Procedural Background

On December 4, 2001, when appellant was sixteen years old, Officer Parker, an undercover narcotics officer with the Houston Police Department, observed appellant and a young woman walking down the street at around 1:30 p.m. They were in an area known for drug problems, and Officer Parker saw appellant holding a cigar and putting it to his mouth as if smoking it. Officer Parker got closer to appellant and smelled marijuana, so he notified nearby uniformed officers and then left to maintain his cover. The uniformed officers saw the cigar in appellant s hand, and when appellant saw the uniformed officers, he threw the still-burning cigar onto the ground. The officers smelled burning marijuana and recovered the cigar. Subsequent testing confirmed the cigar contained marijuana.

Appellant testified at trial and denied that he either smoked or possessed the marijuana cigar. He claims that the marijuana belonged to Monique, the young woman with whom he was walking. The jury found that appellant had engaged in delinquent conduct by possessing marijuana, and the trial court ordered appellant committed to the custody of the Texas Youth Commission. On appeal, appellant challenges two of the trial court s evidentiary rulings.

Analysis

Standard of Review

We review a trial court s decision to admit or exclude evidence under an abuse of discretion standard. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Long v. State, 130 S.W.3d 419, 426 (Tex. App. Houston [14th Dist.] 2004, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Robinson, 923 S.W.2d at 558. We must uphold the trial court s decision as long as it is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). A trial court s ruling in admitting or excluding evidence must be sustained if reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Evidence of a Prior Conviction

The following exchange occurred when the State was cross-examining appellant:

Q [By the prosecutor] And that marijuana cigarette, that was actually marijuana, wasn t it?

A I m not a chemist, I don t know.

. . . .

Q [By the prosecutor] Do you have any reason to know what marijuana smells like?

A Yes, sir.

Q Why is that?

[Defense counsel]: Objection, relevance.

THE COURT: Overruled.

Q [By the prosecutor] I will repeat the question.

THE COURT: The answer [sic] was: You do know what marijuana smells like?

[Appellant]: Yes, sir.

Q [By the prosecutor] Why do you know what marijuana smells like?

A I live in a high-crime area, as well as, an area that has a lot of drugs in it, and I have been around it before.

Q [By the prosecutor] And your story is that Monique had the marijuana, right?

A Yes, sir.

Q So it was marijuana, right?

A To my knowledge. That s what this case is.

Q Did it smell the same?

A At first it smelled it smelled I mean, I don t smoke, so I don t know what a cigar is supposed to smell like. But the it smells funny, I guess you could say that.

Q You said you did not smoke?

A Yes, sir.

Q Isn t it true that you have a conviction

[Defense counsel]: Objection, Your Honor. Objection, Your Honor. May we approach?

THE COURT: Uh-huh.

(At the bench, off the record)

(Back on the record)

THE COURT: I overruled your objection.

Q [By the prosecutor] Can you answer the question?

A Sir, can you repeat the question?

Q Sure. You have a conviction for marijuana, correct?

A Yes, sir.

In his second issue, appellant claims that admission of his prior marijuana conviction was error. However, the court reporter did not record the bench conference where appellant explained his objection, and a general objection is usually insufficient to preserve error.[1] See Rogers v. State, 756 S.W.2d 332, 342 (Tex. App. Houston [14th Dist.] 1988, pet. ref d). In his first issue, appellant argues his challenge to admission of the prior conviction should not be waived because he was unaware that the bench conference was not recorded and the trial court failed in its duty to ensure the proceedings were being recorded. See Tex. Fam. Code Ann. 54.09 (Vernon 2002) ( All judicial proceedings under this chapter [of the Juvenile Justice Code] except detention hearings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means. ); Tex. R. App. P. 13.1(a) (stating that an official court reporter must, unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings ); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (discussing statutory requirement that a record be made in all suits affecting the parent-child relationship and stating that [i]t is the responsibility of the trial judge to see that the court reporter performs this duty ). The State responds that a court reporter has a duty to record only upon request and that any error from the court reporter not recording the bench conference was waived because appellant failed to object. See Tex. Gov t Code Ann. 52.046(a)(2) (Vernon 2005) (stating that [o]n request, an official court reporter shall take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings ); Valle v. State, 109 S.W.3d 500, 508 09 (Tex. Crim. App. 2003) (holding that objection is required to preserve error regarding court reporter s failure to record bench conference). However, we determine that even if appellant s objection had been properly preserved, it is without merit; accordingly, error, if any, in the trial court s failure to have the court reporter record the discussion at the bench was harmless.[2]

The State claims that appellant s prior conviction was admissible to correct a false impression appellant left with the jury regarding his knowledge of marijuana. Generally, when a witness is cross-examined on a collateral matter, the cross-examining party may not contradict the witness s answer. Shipman v. State, 604 S.W.2d 182, 183 (Tex. Crim. App. 1980). However, if a witness has voluntarily testified about an issue and in doing so creates a false impression, the cross-examining party can introduce evidence regarding an otherwise inadmissible extraneous offense to correct the false impression. Martinez v. State, 728 S.W.2d 360, 361 62 (Tex. Crim. App. 1987); Shipman, 604 S.W.2d at 184 85. As explained by the First Court of Appeals in Roberts v. State, 29 S.W.3d 596 (Tex. App. Houston [1st Dist.] 2000, pet. ref d),

As a general rule, the defensive theory that the State wishes to rebut through the use of extraneous offense evidence must be elicited on direct examination by the defense and may not by elicited by prompting or maneuvering by the State. However, as an exception to this general rule, when a defendant voluntarily or nonresponsively testifies concerning extraneousmatters on cross examination, the State may correct any false impression presented by such answer.

Id. at 601 (citations omitted).

The trial court could have reasonably concluded that appellant voluntarily created a false impression regarding his experience with marijuana. Appellant implied that he had only limited knowledge of marijuana and its smell from being around it in a bad neighborhood when in fact he had not just been around it but had been convicted of possessing it.[3] Appellant volunteered the information that created the false impression without any deliberate subterfuge by the State designed to elicit that information. Martinez, 728 S.W.2d at 362. Thus, the trial court did not abuse its discretion in admitting appellant s prior marijuana conviction to correct this false impression. We overrule appellant s second issue.

Drug Test Evidence

The day after appellant was arrested, he went to his regularly-scheduled visit with his probation officer, who administered a routine drug test. The test result was negative. However, the probation officer failed to test the sample for adulterants that could produce a false negative because she was out of the necessary supplies. She told appellant to go to an official lab the next day for retesting to verify the negative result, but, for reasons not specified in the record, appellant did not obtain the follow-up test.

Appellant sought to admit the drug test result and have an expert testify about the accuracy of the test and the meaning of the results. Appellant contends the negative drug test result is relevant and highly probative because, contrary to the testimony of the undercover officer, it would show appellant did not smoke marijuana and therefore likely did not possess it either. The trial court held a hearing outside the presence of the jury and then excluded all evidence regarding the drug test results on the bases of reliability and jury confusion. In his third issue, appellant challenges this ruling.

For scientific evidence to be admissible, the proponent must establish that the evidence is both relevant and reliable. Robinson, 923 S.W.2d at 556 57; Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). The trial court is the gatekeeper and is to admit evidence only if it is sufficiently reliable and relevant to assist the jury. Owens v. State, 135 S.W.3d 302, 306 07 (Tex. App. Houston [14th Dist.] 2004, no pet.). Unreliable evidence is of no assistance to the trier of fact. Robinson, 923 S.W.2d at 557.

Appellant s expert testified that the type of urinalysis the probation officer conducted was, as a general matter, accurate and reliable. However, he also testified that there are many possible ways to adulterate a urine sample and that without testing for such adulterants, we would not know if it was a true test or not and the test would not provide a complete analysis. A reliability analysis concerns not just the soundness of the test but also the proper application of the test. See Kelly, 824 S.W.2d at 573; Porath v. State, 148 S.W.3d 402, 416 (Tex. App. Houston [14th Dist.] 2004, no pet.). Errors in conducting an otherwise valid test can render the result unreliable. See McRae v. State, 152 S.W.3d 739, 743 44 (Tex. App. Houston [1st Dist.] 2004, pet. filed) (holding that the trial court abused its discretion in admitting the results of a field sobriety test based on officer s admitted significant errors in administering the test). Based on the evidence from appellant s own expert, the trial court determined the test result was unreliable and refused to admit appellant s proposed evidence. The evidence in the record supports this conclusion, and we cannot say the trial court abused its discretion in excluding the evidence on this basis.

The trial court also found that the evidence had low probative value and was outweighed by the risk of jury confusion under Texas Rule of Evidence 403. The undercover officer testified that he saw appellant take approximately two puffs from the marijuana cigar. Appellant s expert testified that if appellant had only smoked such a small amount of marijuana, there was only a fifteen percent chance that he would have tested positive for marijuana on a urinalysis test. Thus, the trial court concluded, the test result had little probative value to rebut the possession charge. Further, because only the undercover officer testified that he saw appellant smoking the marijuana but all three officers said they saw appellant holding the marijuana cigar, the test results, at most, could have impeached one officer s credibility and thus had little probative value for impeachment. Because the evidence supports the trial court s findings, the trial court did not abuse its discretion in excluding the drug test evidence under Rule 403.

We overrule appellant s third issue.

Having disposed of each of appellant s issues, we affirm the trial court s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 14, 2005.

Panel consists of Justices Yates, Anderson, and Draughn.*

* Senior Justice Joe L. Draughn sitting by assignment.

[1] A general objection can preserve error if the basis of the objection is apparent from the context. See Tex. R. Evid. 103(a)(1). Because neither party has briefed this argument, we do not express an opinion on whether the objection was sufficient to preserve error on this basis.

[2] The civil standard for harmless error applies to juvenile delinquency adjudications. In re G.M.P., 909 S.W.2d 198, 210 (Tex. App. Houston [14th Dist.] 1995, no writ); see also In re S.P., 9 S.W.3d 304, 309 (Tex. App. San Antonio 1999, no pet.) (rejecting argument regarding court reporter s failure to record bench conference in juvenile proceeding because appellant did not demonstrate any harm).

[3] Appellant asserted at oral argument that evidence regarding prior offenses is admissible only to correct a false impression regarding a witness s criminal background or trouble with the law and not any other type of mis-impression. Appellant cites no authority that the false-impression doctrine is so limited, and, in any event, by portraying himself as inexperienced with marijuana, appellant did create a false impression regarding his criminal background.