Billy Karl Hill v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

AUGUST 23, 1990

NO. 10-89-059-CR

Trial Court

# 89-60-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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BILLY KARL HILL A/K/A BILLY CARL HILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

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Pleading not guilty, appellant Billy Karl Hill, a/k/a Billy Carl Hill, was found guilty by a jury of the offense of delivering less than 28 grams of hydromorphone, a controlled substance. After finding that two prior felony convictions alleged in the indictment for enhancement of punishment were "True," the jury assessed punishment at confinement in the Texas Department of Corrections for a term of 60 years. This appeal resulted.

Appellant seeks reversal under two points of error asserting (1) that the evidence was insufficient to prove delivery of a controlled substance because there was no proof of the origin of the hydromorphone used as a control in the laboratory test of the contraband, and (2) that one of the prior convictions alleged in the indictment to enhance the punishment was based on a void conviction of burglary. We overrule these contentions and we affirm the judgment.

Joel Budge, a chemist with the Texas Department of Public Safety, testified that in his chemical tests he compared the contraband in question with a known substance of hydromorphone which had been made in his laboratory using a known dilaudid. He said that he did not know the exact source of the dilaudid, but that his laboratory [located in Waco] usually received its pharmaceuticals "from a pharmacist here in town. I don't know which one it was." In light of the fact that Budge was properly qualified as an expert in the field of chemical analysis of dangerous drugs, his testimony that he knew that the contraband in question was hydromorphone because he had tested it against a substance that he knew was hydromorphone had probative value even though he was uncertain of the exact source of the pharmaceuticals from which he had manufactured the test sample. Bridges v. State, 471 S.W.2d 827, 829-30 (Tex.Cr.App.1971); Armstrong v. State, 476 S.W.2d 703, 705 (Tex.Cr.App.1972). Additionally, the chemist's laboratory test report showing that the contraband in question contained .08 grams of hydromorphone was admitted into evidence without objection. This evidence was sufficient to support the jury's finding that the substance delivered was hydromorphone.

One of the two prior convictions alleged and proved by the State for enhancement of punishment was a conviction of burglary by breaking in 1966. The other was for a burglary conviction in 1975. Appellant asserts that the 1966 conviction was improperly used to enhance his punishment because "the evidence in the case indicated burglary, but not burglary by breaking." The record of the case before us does not support this contention, since it does not contain the evidence introduced at the trial of the prior conviction for burglary.

Appellant also asserts that the prior convictions for burglary were improperly used for enhancement purposes in this case which involves a violation of the Controlled Substances Act. He asserts that section 4.012(a) of the Act (section 4.012[a], Article 4476-15, Vernon's Tex.Civ.Stat., now Texas Health & Safety Code 481.107[a]), provided for enhancement of punishment for violations of the Act only by the use of prior convictions under the Act. This contention was not raised in the trial court and it was therefore waived. Rule 52(a), Tex.Rules App.Proc. Moreover, the contention is not valid. Section 4.012(c) of Article 4476-15, see now Texas Health & Safety Code 481.107(f), provided: "A person who is subject to prosecution under both this section and Section 12.42, Penal Code, may be prosecuted under either section." Appellant, with two prior burglary convictions, both found to be "True," was subject to prosecution under Section 12.42(d) of the Penal Code. See McGowan v. State, S.W.2d (Tex.App.--Texarkana, decided May 16, 1990).

Appellant's points of error are overruled. The judgment is affirmed.

VIC HALL

DO NOT PUBLISHJustice