Burch, Ben Knighten v. The State of Texas

REVERSE and REMAND; Opinion Filed June 18, 2012.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-01389-CR
............................
BENJAMIN KNIGHTEN BURCH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-00319-Q
.............................................................
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Myers
        Appellant Benjamin Knighten Burch was convicted by a jury of possession of cocaine with the intent to deliver, and was sentenced by the trial court to twelve years in prison. In two issues, appellant argues the trial court erred by admitting a drug analysis report because the person who performed the analysis did not testify at trial, and by allowing the State to impeach appellant, when he testified at trial, with evidence he was on parole for a 1987 aggravated robbery conviction. We reverse the trial court's judgment and remand for further proceedings.
Background and Procedural History
        On March 3, 2009, detectives in the Dallas Police Department were interested in interviewing a woman named Melanie Zorn about a pending criminal investigation. Officer Noe Camacho, who knew Zorn because he had previously arrested her, and his partner, Stephen Comstra, drove through a neighborhood Zorn frequented. Camacho soon spotted Zorn getting out of the passenger's side of a vehicle in an apartment complex parking lot. Another individual, later identified as appellant, was in the driver's seat. The officers made a u-turn and drove their police cruiser into the parking lot “right up to” appellant and Zorn, who by this time had exited the vehicle. Appellant and Zorn looked at the squad car and walked quickly to a nearby apartment. Comstra yelled, “Hey, stop,” but they ignored him and went into the apartment, slamming the door shut. While the apartment door was open, both officers saw “baggies” containing what they believed to be illegal contraband and drug scales on a table just inside the door. Camacho testified he could see into the apartment because the door “was wide open,” and Comstra recalled he “had plenty of time to look at the table.”
        Camacho told another officer who arrived at the scene, Kevin Witworth, to “check the back” of the apartment building “in case there was a back door.” Witworth found no exit at the rear of the building but he saw an arm “stick[ing] out” of an open window; appellant later testified he threw “the dope out the window” because he heard police officers at the apartment door. When Camacho and Comstra entered the apartment, which was a small efficiency, they saw appellant and Zorn coming out of the bathroom. The officers detained and arrested them. No one else was in the apartment.
        The officers collected the contraband they found on the table by the door, which included two “baggies” of marijuana, a supply of empty “baggies” used for packaging cocaine or heroin, a bag of pills later determined to be hydrocodone, and several drug scales. Camacho also found and seized the four “baggies” of crack cocaine from the exterior window ledge at the rear of the apartment.         Appellant was indicted for possession with the intent to deliver cocaine in an amount of more than one gram but less than four grams. During trial, the State called Monica Lopez, a supervisor of the drug laboratory at the Southwest Institute of Forensic Sciences (SWIFS). Lopez recognized the “bag” that contained State's exhibit seven, the seized cocaine, already admitted for record purposes, by the “unique identifying number” that was assigned when it was brought to SWIFS. She also identified State's exhibit twelve as a copy of the drug lab report. Lopez testified that an analyst who was “no longer in our laboratory,” Jennifer Pinkard, performed the analysis and completed the report. Lopez reviewed the report “to ensure all our policies and procedures have been followed,” then signed it. When the prosecutor offered State's exhibit twelve into evidence, defense counsel received permission to take Lopez on voir dire. The relevant portion of the record reads as follows:
 
Q. [DEFENSE COUNSEL:] Ms. Lopez, you didn't receive this bag, did you, into evidence at the SWIFS, did you?
 
 
 
A. [LOPEZ:] No, I did not.
 
 
 
Q. You [have] never seen that bag until today.
 
 
 
A. No, I've seen it before. I didn't personally receive it, but this type of evidence is kept in our vault, so--
 
 
 
Q. What day did you see that bag?
 
 
 
A. Pardon?
 
 
 
Q. What day did you see the bag?
 
 
 
A. I don't know. I'm in the vault every day, so--
 
 
 
Q. Okay. You didn't do the analysis on this bag, correct?
 
 
 
A. That is correct.
 
 
 
Q. The person that did the analysis is Jennifer Pinkard.
 
 
 
A. Pinkard, yes.
 
 
 
Q. She's not here, is she?
 
 
 
A. She no longer works with the laboratory. That's correct.
[DEFENSE COUNSEL]: Pass the witness. Judge, I object under Melendez-Diaz versus Massachusetts   See Footnote 1  and Crawford    See Footnote 2  that they have to have the analyst to give this report into evidence.
 
 
 
THE COURT: Ms. Sauter, what's your reply to that?
 
 
 
[PROSECUTOR]: I'm sorry.
 
 
 
THE COURT: What is your response?
 
 
 
[PROSECUTOR]: My response is she had all the data that was provided to her by Jennifer Pinkard that she could then analyze and go back through and make sure ultimate results were valid. So she saw everything Jennifer Pinkard did in terms of the data that's used to come up with the analysis on this particular substance.
 
 
 
THE COURT: I'll overrule. I'll admit it over your objection, Mr. Cox.
 
        After publishing exhibit twelve to the jury, the prosecutor continued to examine Lopez. Lopez testified about the contents of the lab report, which stated that the contents of “four green ziplock baggies” were used for analysis, that “[t]he amount of the cocaine found was 1.38 grams,” which was sixty-two percent of the total weight, and “[t]he total weight of the material, including adulterants and dilutants, was 2.2 grams.” Lopez also testified as follows:
 
Q. [PROSECUTOR:] Ms. Lopez, in your expert opinion, does State's Exhibit No. 7, which I've laid right there in front of you, does it contain at least is it, first of all, cocaine?
 
 
 
A. [LOPEZ:] Yes, it is.
 
 
 
Q. And is it in the amount of at least 1 gram but less than 4?
 
 
 
A. Yes.
 
 
 
Q. One gram or more but less than 4?
 
 
 
A. Yes, it is.
Q. Were you able to specifically identify what type of dilutant or adulterant is in there?
 
 
 
A. Not in this case. In some cases we are able to do so but not in this case.
 
 
 
Q. And the total weight, including everything, is 2.2 grams; is that correct?
 
 
 
A. Yes, that's correct.
 
When the prosecutor offered State's exhibit seven into evidence, defense counsel again objected based on Melendez-Diaz and Crawford. The trial court overruled the objection. The prosecutor then asked Lopez, “These are the bags that we're talking about that you tested[,] four individual baggies that we see in here that amount to 2.2 grams of the controlled substance of cocaine [along with adulterants]; is that correct?” Lopez answered, “Yes, that's correct.” Appellant did not make any further objections to Lopez's testimony or to exhibit twelve.
        The next witness called by the State, Detective Dan Lusty, a City of Dallas Police Officer, interviewed appellant at the Dallas County Jail in September of 2009. A twelve second portion of the recorded interview was played for the jury, in which appellant told the detective, “All I do is sell dope.”   See Footnote 3  Lusty also identified several recordings of telephone calls made by appellant from the Dallas County Jail during appellant's pretrial incarceration. In a call made on the day of his arrest, March 3, 2009, appellant told an unidentified male “to look on the ground . . . outside the window to my apartment,” where appellant had “dropped” four items. In a telephone call made later that month, appellant boasted to an unidentified male he did more “business over there than all them junkie ass dope dealers put together, and everybody knows that.” Appellant also said, “[A]in't nobody can do it like me.” In another telephone call made in March of 2009, appellant told an unidentified male that he recalled every person he “sold to” on “that particular day” because he had “gone through this a thousand times in my mind,” and that he was warned he needed to “watch” “two or three people.”         Barry Ragsdale, a sergeant with the Dallas Police Department Northeast Patrol Division's drug squad, testified as the State's expert regarding the street use and sale of cocaine. He examined State's exhibit seven while he was on the stand, testifying that he recognized the substance as cocaine. Explaining how a kilogram of powder cocaine is broken down into smaller quantities, Ragsdale also testified in part:
 
This is--appears to be crack cocaine or rock cocaine, cocaine base. And this is cooked, again, from the paste that is processed into and dried. Even though that's a hard object, it's considered powder cocaine. And this is crack cocaine, what it's cooked into. A much higher addictive form of cocaine.
 
The prosecutor asked, “That particular form right there[?]” Ragsdale responded, “Crack is, yes.”
The prosecutor then showed Ragsdale State's exhibit twelve, placing it on an overhead monitor and asking him to explain certain terms referenced in the report. Ragsdale described the “purity” of cocaine and explained the purpose of “adulterants and dilutants.”
        Appellant testified on his own behalf. He admitted he sold “dope” but denied selling it on the day of the offense. Appellant also admitted he carried four “baggies” of cocaine from his car into the apartment shortly before the police officers entered. But appellant contended the “dope”belonged to Zorn, not him, and that he dropped the “baggies” out of the apartment window because he heard police officers knocking on the door. Appellant admitted that exhibit seven was the four “baggies” of “dope” he carried into the apartment on the day in question. He argued, however, that the scales, “baggies,” and marijuana “were in the drawer,” not on top of the table in “plain sight,” and that police officers found those items only by “digging” through the drawers.
        The jury convicted appellant of possession with the intent to deliver one gram or more but less than four grams of a controlled substance, cocaine. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010). Appellant pleaded true to the indictment's enhancement paragraph. The trial court sentenced appellant to twelve years in prison. This appeal followed.
Discussion
        In his first issue, appellant alleges the trial court erred by admitting the drug analysis report because “the person who performed the analysis did not testify” at trial.
        We begin with the State's assertion that appellant failed to preserve his complaint for appellate review because he did not object each time the lab report was used by the State as evidence.
The Court of Criminal Appeals has noted that “we should avoid splitting hairs when determining whether a claim has been procedurally defaulted.” Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005). To preserve error for appeal, a party must “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Id. Redundant objections to the same matter for the same reason are not necessary if the circumstances indicate they would have been futile. See, e.g., Graham v. State, 710 S.W.2d 588, 591-92 (Tex. Crim. App. 1986). In addition, we note that “although a party generally must preserve error by objecting each time objectionable evidence is admitted, when a trial court has just overruled a valid objection to the same testimony, a defendant is not required to constantly repeat the objection.” Kelly v. State, 321 S.W.3d 583, 598 (Tex. App.--Houston [14th Dist.] 2010, no pet.) (citing Cardenas v. State, 787 S.W.2d 160, 162 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd)); see also Johnson v. State, No. 05-09- 00494 & 495-CR, 2011 WL 135897, at *2 (Tex. App.--Dallas Jan. 18, 2011, no pet.) (not designated for publication) (“Although a party generally must preserve error by objecting each time objectionable evidence is offered, a party need not constantly repeat an objection when the trial court has just overruled an objection to the same evidence”). In this case, appellant had objected to State's exhibit twelve based on Melendez-Diaz and Crawford. The objection was overruled. Later, when the prosecutor offered State's exhibit seven into evidence, defense counsel again objected based on Melendez-Diaz and Crawford. This objection was likewise overruled. Further objection to the same evidence was, therefore, not required. We conclude appellant's first issue was preserved for our review.
        Turning to the merits of appellant's complaint, he argues, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Crawford v. Washington, 541 U.S. 36 (2004), that the trial court erred by admitting the lab report because the person who tested the drugs and prepared the report did not testify at trial. Appellant contends admission of the report violated his Sixth Amendment right to confront the witnesses against him. He also argues he was harmed by the trial court's error because, absent the report, there was no admissible evidence of the weight of the drugs.         A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. See Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007). The trial court abuses its discretion only when the decision lies outside the zone of reasonable disagreement. Id. (quoting Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005)).
        The Sixth Amendment provides that all criminal defendants have the right to confront any witnesses against them. U.S. Const. amend. VI. In Crawford, the United States Supreme Court concluded admission of “testimonial” statements satisfies the Sixth Amendment only upon a showing that the declarant is unavailable and the defendant has had a prior opportunity to cross- examine the declarant. Crawford, 541 U.S. at 57-60. In Melendez-Diaz, the Court concluded a forensic analyst's report created for criminal prosecution was testimonial in nature and therefore subject to the Confrontation Clause. Melendez-Diaz, 129 S. Ct. at 2542. More recently, in Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011), which was decided after appellant's conviction and sentencing, the Court addressed “surrogate testimony” regarding forensic reports in a driving while intoxicated case. In Bullcoming, the forensic analyst assigned to test Bullcoming's blood sample created and signed the “Report of Blood Alcohol Analysis.” Id. As in this case, at trial the State called a different analyst who was familiar with the laboratory testing procedure but did not participate in or observe the testing on Bullcoming's blood sample. See id. at 2709. The Court concluded the admission of the forensic analyst's report concerning blood alcohol concentration was a violation of Bullcoming's right to confrontation because a surrogate analyst, rather than the analyst who prepared the report, testified from the report. Id. at 2715-16.
        This case is governed by the Supreme Court's decisions in Melendez-Diaz and Bullcoming. Lopez testified that another analyst, Pinkard, performed the actual testing on the substance and wrote the lab report. No reason was provided for Pinkard's absence, and the record does not show appellant had a prior opportunity to cross-examine her. See Soto v. State, Nos. 05-09-01481 & 01482.CR, 2011 WL 6188598, at *4 (Tex. App.--Dallas Dec. 14, 2011, pet. stricken) (mem. op., not designated for publication) (applying Bullcoming to case where lab supervisor testified that another analyst performed the actual testing on the substance, observed the readings on the machines, prepared the report, and there was no indication appellant had a prior opportunity to cross-examine the analyst); Johnson, 2011 WL 135897, at *3-4 (concluding lab reports were testimonial and, absent a showing of unavailability and a prior opportunity to cross-examine the analysts who performed the tests, should not have been admitted into evidence).
        The State contends Lopez's testimony was admissible because (1) she “formally reviewed” Pinkard's work, verified the results, and signed the report; and (2) “as the reviewer, Lopez testified to her own expert opinion.” In support of this argument, the State calls our attention to Hamilton v. State, 300 S.W.3d 14 (Tex. App.--San Antonio 2009, pet. ref'd), where the defendant argued the trial court violated his confrontation rights by admitting the testimony of Garon Foster regarding Hamilton's DNA. Id. at 19. Foster testified based on DNA tests that Hamilton could not be excluded as the donor of the spermatozoa identified on swabs taken from the complainant. Id. Although Foster expressed an opinion based on his evaluation of the data, he also testified over objection to the results of the DNA analysis conducted by Erica Graham, another scientist whose work was supervised by Foster. Id.
        The appellate court ultimately concluded that Foster's opinion, which was based on what the court termed “data generated by scientific instruments operated by other scientists,” did not violate the Confrontation Clause. Id. at 21-22. But the court of appeals' decision predates Bullcoming. Furthermore, in reaching its conclusion, the appellate court relied on reasoning from other courts that was ultimately rejected in Bullcoming. See id.; see also Soto, 2011 WL 6188598, at *4. We also note that, unlike the lab supervisor in Hamilton, Lopez did not testify regarding any independent judgment she may have formed based on her own testing and/or analysis of the drugs. Indeed, the record indicates she recited Pinkard's findings and adopted those findings as her own. “We agree that 'allowing a witness to simply parrot . . . out-of-court testimonial statements directly to the jury in the guise of expert opinion' would provide an end run around Crawford, and this we are loathe to do.” Johnson, 2011 WL 135897, at *4 (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007)). We therefore conclude the trial court abused its discretion by admitting, over appellant's objection, the lab report and Lopez's testimony regarding the lab report.         A Confrontation Clause violation is constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(a). Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). Rule 44.2(a) provides that “the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a); see also Woodall v. State, 336 S.W.3d 634, 639 n.6 (Tex. Crim. App. 2011). In determining whether constitutional error under Crawford may be declared harmless beyond a reasonable doubt, the following factors are relevant: (1) how important the out-of-court statement was to the State's case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the prosecution's case. Langham, 305 S.W.3d at 582 (quoting Scott v. State, 227 S.W.3d 670, 690-91 (Tex. Crim. App. 2007)). The question is not whether the verdict was supported by evidence; the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at their decision, that is, whether the error adversely affected the integrity of the process leading to the decision. Id. In conducting our review, we should consider other constitutional harm factors, if relevant, such as the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, probable collateral implications, the weight a juror would probably place on the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. See Snowden v. State, 353 S.W.2d 815, 820 (Tex. Crim. App. 2011). “At bottom, an analysis for whether a particular constitutional error is harmless should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether 'beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment.'. Id. at 822 (quoting Tex. R. App. P. 44.2(a)).
        In this case, appellant was indicted for possession with the intent to deliver one gram or more but less than four grams of a controlled substance, cocaine. The lab report established the quantity and identity of the substance appellant was charged with possessing with the intent to deliver. The only other evidence of these facts was supplied by appellant, who acknowledged the “baggies” contained “dope” or “cocaine,” and Ragsdale, who told the jury he recognized the substance as cocaine. But the officer was not competent to identify the controlled substance as cocaine. See Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (although an experienced narcotics officer may identify marijuana, he may not testify that a powdered substance is heroin); Smith v. State, 874 S.W.2d 720, 721-22 (Tex. App.--Houston [1st Dist.]) (officer could not testify that substance was cocaine), pet. ref'd, 887 S.W.2d 948 (Tex. Crim. App. 1994); Gabriel v. State, 842 S.W.2d 328, 330 n.1 (Tex. App.--Dallas 1992) (op. on rehearing) (“After the field test, the substance can be conclusively established as cocaine by testing in a forensic science laboratory”), affirmed, 900 S.W.2d 721 (Tex. Crim. App. 1995); Johnson, 2011 WL 135897, at *5 (officer's testimony was sufficient only to establish identity of marijuana; he was not competent to identify controlled substance as cocaine). Moreover, even if we were to conclude the evidence established the identity of the substance in question, and we do not, there is no evidence of its quantity. Without the lab report, in other words, the evidence arguably showed, at most, that appellant possessed some undetermined quantity of cocaine. Yet, in a case such as this, where the indictment alleged a specific quantity of contraband, the State had to establish the quantity of that substance. Thus, the disputed evidence was an essential part of the State's case. See Johnson, 2011 WL 135897, at *5. We are, as a result, unable to conclude beyond a reasonable doubt that the error did not contribute to appellant's conviction.
        We sustain appellant's first issue. Based on our disposition of appellant's first issue, we do not address appellant's second issue. We reverse the trial court's judgment and remand this case to
 
 
 
 
the trial court for further proceedings.
                                                          --------------------------                                         LANA MYERS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
101389F.U05
 
 
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BENJAMIN KNIGHTEN BURCH, Appellant
 
No. 05-10-01389-CR
 
V.
 
THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 00319-Q).
Opinion delivered by Justice Myers, Justices Morris and Fillmore participating.                Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is remanded to the trial court for further proceedings.
 
Judgment entered June 18, 2012.
 
 
 
                                                          /Lana Myers/
                                                          LANA MYERS
                                                          JUSTICE
 
 
Footnote 1 See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
Footnote 2 See Crawford v. Washington, 541 U.S. 36 (2004).
Footnote 3 According to the record, only the portion of the recorded interview from time marker 23:10 to 23:22 was played for the jury.