Kelvin Valcin v. The State of Texas--Appeal from 252nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-483 CR
NO. 09-02-485 CR
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KELVIN WAYNE VALCIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 83216, 84716
O P I N I O N

The trial court found Kelvin Wayne Valcin guilty of aggravated assault in Cause No. 84716 and assessed his punishment at two (2) years in the Institutional Division of the Texas Department of Criminal Justice. Heard along with the aggravated assault charge was Cause No. 83216 in which the State had filed a Motion to Revoke Unadjudicated Probation, and in which Valcin earlier had pleaded guilty to possession of a controlled substance in accordance with a plea bargain agreement. The State's Motion to Revoke was based on four allegations. While pleading true to allegations two, three, and four, Valcin pleaded untrue to allegation one, the aggravated assault allegation, which was based on the offense charged in Cause No. 84716.

After finding Valcin guilty of aggravated assault, the trial court found as true the State's allegation Valcin had committed the aggravated assault offense and further found Valcin guilty of the possession offense and assessed punishment at two years confinement in a State jail facility.

Valcin filed notices of appeal and brings the same two issues in both causes. In issue one, Valcin maintains the trial court abused its discretion by refusing to consider the scientific analysis of a gunshot residue report. In issue two, Valcin contends the trial court applied the State's argument to use a "common sense" test rather that the "Kelly Factors" in interpreting the conclusions of the gunshot residue report. Both issues relate to the trial court's decision to adjudicate guilt, and it is well settled that no notice of appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2003). Thus, we have no jurisdiction to consider Valcin's issues as they relate to Cause No. 83216 in which the State filed its Motion to Revoke Unadjudicated Probation, but will consider them in Valcin's appeal of his aggravated assault conviction.

At trial, the State introduced, without objection, a gunshot residue report prepared by the Texas Department of Public Safety ("DPS"). DPS tested hand swabs taken from Valcin and Willie Gloston, the complainant, to determine the presence of gunshot primer residue (antimony, barium, and lead). The DPS analysis concluded that "[a]mounts of antimony, barium and lead consistent with gunshot residue were not detected on the hand swabs from Kelvin Valcin." (1) While no amounts of antimony, barium, or lead were detected on the backs of Gloston's hands, the test revealed amounts of antimony and barium on his palms. But, DPS concluded that due to the lack of sufficient quantities of lead, the results of the tests on Gloston's hand swabs were inconclusive for the presence of gunshot primer residue.

During final argument, Valcin's counsel urged the trial court to consider that none of the gunshot primer residue ingredients were found on Valcin's hands while two of the three ingredients were found on Glostons's hands. The trial court responded that the report "doesn't mean anything at all."

In issue one, Valcin maintains the trial court abused its discretion by refusing to consider the scientific analysis of a gunshot residue report. Valcin argues the State's own evidence creates reasonable doubt as to his guilt because the State failed to explain the expert conclusions in the report and also failed to explain the lack of residue on his hands. Valcin contends the trial court's failure to consider the report's results is a failure to consider uncontroverted exculpatory scientific evidence of his innocence.

However, the trial court heard other evidence also. According to Willie Gloston and another witness, Valcin pointed a gun at Gloston while verbally threatening him. Valcin also fired the gun in Gloston's direction, according to Gloston. The two other witnesses remember the gun being fired when Valcin and Gloston were fighting. When acting as the trier of fact, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, including any contradictory testimony. See Cain v. State 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). As such, the trial court is free to accept or reject all or any portion of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Here, as the sole trier of fact, the trial court also was entitled to consider the inconclusive nature of the report along with the witnesses' testimony in reaching its decision that Valcin was guilty. Issue one is overruled.

In issue two, Valcin contends the trial court applied the State's argument to use a "common sense" test rather that the "Kelly Factors" in interpreting the conclusions of the gunshot residue report. See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Here, however, Kelly does not apply as the report was admitted into evidence without objection. In Kelly, the Court determined that a proponent of expert testimony or evidence based on scientific theory must demonstrate the evidence's reliability and relevance, based on certain factors, before the evidence may be admitted for the fact finder's consideration. Id. Thus, Kelly addresses admissibility of evidence; it does not set standards by which the trier of fact must judge the evidence once it has been admitted. Issue two is overruled.

We dismiss that part of the appeal relating to Cause No. 83216 because we have no jurisdiction over it and we affirm the trial court's judgment relating to Cause No. 84716.

PER CURIAM

Submitted on July 17, 2003

Opinion Delivered July 30, 2003

Do not publish

 

Before McKeithen, C.J., Burgess, and Gaultney, JJ.

1. The report noted that the absence of gunshot primer residue is consistent with any of the following conditions: (1) a person has not recently fired a weapon or been in the immediate proximity of a weapon as it was being fired; (2) gunshot primer residue was deposited, but then was removed or reduced; (3) the weapon and/or ammunition did not deposit gunshot primer residue in sufficient quantities for detection on the hands of the person firing the weapon.