Darryl Martin v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-183-CR

DARRYL MARTIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-292-C

O P I N I O N

A jury convicted appellant, Darryl Martin, of the delivery of a controlled substance in Penalty Group 1. See Tex. Health & Safety Code Ann. 481.112 (Vernon 1992). It assessed punishment at ninety-nine years in prison and a $10,000 fine. Martin complains that the court erred in: (1) overruling his Batson objection; (2) refusing to appoint an independent chemist to test the substance; and (3) failing to charge on a lesser-included offense. He also contends the State withheld evidence favorable to him. We will affirm.

Martin alleges in point one that the trial court committed reversible error when it overruled his Batson objection. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1987). Martin failed to make his objection until after the jury was selected and sworn. A Batson objection is timely only when it is raised prior to the swearing of the jury. Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App. 1992). The first point is overruled.

Under article 39.14 of the Texas Code of Criminal Procedure, a defendant is entitled to have a chemical analysis performed on substances the state intends to introduce into evidence. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979); Detmering v. State, 481 S.W.2d 863, 864 (Tex. Crim. App. 1972). Martin filed a pre-trial motion requesting the substance he delivered be tested, and the motion was denied. In point two he argues that this was an abuse of the court's discretion.

The party seeking review of a complaint must present the appellate court a sufficient record to show error. Tex. R. App. P. 50(d); Haynes v. McIntosh, 776 S.W.2d 784, 785 (Tex. App. Corpus Christi 1989, writ denied). The record on appeal does not contain a statement of facts of the hearing on the motion. Without a record of the hearing, Martin cannot show that the court abused its discretion when it denied the motion. See McIntosh, 776 S.W.2d at 788. Point two is overruled.

In point three Martin argues that the court improperly refused to include in its charge the lesser-included offense of delivery of a simulated controlled substance. See Tex. Health & Safety Code 482.002 (Vernon 1992). To determine whether a lesser-included offense should be submitted in the charge, a two-part test must be applied. First, the lesser-included offense must be contained within the proof necessary to prove the greater offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (opinion on rehearing). Second, there must be some evidence that, if guilty, the defendant is only guilty of the lesser offense. Id.

Delivery of a simulated controlled substance cannot be a lesser-included offense of delivery of a controlled substance. See Tex. Health & Safety Code 481.112, 482.002 (Vernon 1992). When delivery of a substance is by actual or constructive transfer, its chemical properties must be either a simulated controlled substance or a controlled substance. Stewart v. Texas, 718 S.W.2d 286, 288 (Tex. Crim. App. 1986). The elements of the two offenses must each be proved under their respective statutes. Id. Because a delivered substance cannot be both controlled and simulated, the evidence necessary to prove the lesser offense cannot be contained within the evidence necessary to prove the greater offense. Therefore, the first step of the Stewart test cannot be met. Point three is overruled.

Martin's final point of error alleges that the State withheld evidence of an extraneous offense tending to establish his innocence, and that withholding the evidence violated a pre-trial discovery order. He filed a pre-trial discovery motion requesting favorable evidence; however, the record does not show a ruling on the motion. To preserve a complaint for appellate review the complaining party must secure an adverse ruling. Tex. R. App. P. 52(a); Harris v. State, 784 S.W.2d 5, 12 n.4 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1837, 108 L. Ed. 2d 966 (1990). Point four is overruled because the complaint was not preserved for review. We affirm.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 30, 1992

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