JAY ELMER STANTON v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-06-437-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JAY ELMER STANTON, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Calhoun County, Texas.

MEMORANDUM OPINION

 
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez

Appellant, Jay Elmer Stanton, was charged with the offense of delivery of a controlled substance (four grams or more but less than 200 grams). See Tex. Health & Safety Code Ann. 481.112(d) (Vernon 2003). A jury found him guilty. It further found appellant had previously been convicted of a felony and assessed punishment at 60 years in the Institutional Division of the Texas Department of Criminal Justice. By one point of error, appellant contends that the trial court erred by admitting State Exhibits 1, 2, and 3, over defense counsel's Crawford objection. See Crawford v. Washington, 541 U.S. 36, 68 (2004). We affirm.

I. Sixth Amendment Right to Confront (1)

At trial, Exhibit 1 (the drug), Exhibit 2 (a copy of the certificate of analysis and chain of custody affidavit of Amy Arellano, the forensic scientist for the Texas Department of Public Safety who conducted tests or procedures on the physical evidence at issue in this case, and a drug analysis laboratory report describing the physical evidence as 7.58 grams of cocaine), and Exhibit 3 (a photograph of the drug that was later substituted for Exhibit 1) were admitted over counsel's objection that the admission of the exhibits would violate appellant's Sixth Amendment right to confrontation of witnesses. See id. at 68; Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). By a single point of error, appellant complains that, by not proffering the exhibits through a testifying government chemist, he was denied the opportunity to confront and cross-examine the chemist on the veracity of the conclusions within Exhibit 2. (2) He further contends that harm is apparent because "the State was enabled by the trial court to prove an essential element of the crime alleged (namely, that the substance delivered was in fact cocaine) with the safety of shielding its assertions from effective challenge through cross-examination."

Before reviewing appellant's confrontation clause contentions, however, we note that Detective Derrick Walton testified as follows:

The State: Detective, basically can you explain to the jury how much the white powdery substance weighed and what it contained.

Walton: The laboratory shows that the results of the analysis were 7.8 grams of cocaine.

The State: It's actually 7.58.

Walton: I'm sorry, 7.58, that's correct.

The State: And it contained cocaine?

Walton: Yes, it says it contains cocaine.

 

Detective Walton testified, without objection, that the substance was 7.58 grams of cocaine. Thus, error, if any, in admitting Exhibits 1, 2, and 3, to prove an essential element of the crime was rendered harmless by the admission of Walton's unobjected-to testimony. See Ethington v. State, 819 S.W.2d 854, 860 n.8 (Tex. Crim. App. 1991) (en banc) (concluding that when counsel objects to certain inadmissible testimony, but then permits similar evidence to come in without objection, any error is deemed harmless). Accordingly, we overrule appellant's sole point of error.

II. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this 18th day of October, 2007.

1. Appellant also objected to Exhibit 2 on the basis of hearsay and that its admission was in violation of article 38.42 of the Texas Code of Criminal Procedure. However, appellant does not now complain of the trial court's rulings on these objections. We, therefore, only address appellant's confrontation claim.

2. Appellant asserts, on appeal, that his contentions apply to Exhibit 2, which appellant describes as "the most violative of [the confrontation] rule and harmful to appellant," and to a lesser extent to Exhibits 1 and 3.