Phillip Lawrence Alexander v. The State of Texas--Appeal from 27th District Court of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-348-CR
PHILLIP LAWRENCE ALEXANDER,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 42,898, HONORABLE WILLIAM C. BLACK, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing cocaine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, 481.115, 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. 481.115, since amended). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty years.

In October 1992, police executed a warrant for appellant's arrest. During a search incident to this arrest, officers found in appellant's hand a homemade pipe used to smoke crack cocaine. A rock of crack cocaine was found at appellant's feet. One of the officers testified that he saw the rock fall out of appellant's coat pocket as he was being searched.

In his first point of error, appellant contends the district court erred by overruling his hearsay objection to testimony describing the result of chemical tests conducted on the suspected rock of crack cocaine. The testifying witness was Charles Mott, a chemist at the Department of Public Safety laboratory in Waco. Over appellant's objection, Mott testified that a chemist no longer employed by the department, Elizabeth Willets, tested the substance and concluded that it contained cocaine.

Chemists employed full-time by the Department of Public Safety are "law enforcement personnel" within the meaning of Rule 803(8) of the Texas Rules of Criminal Evidence. Cole v. State, 839 S.W.2d 798, 803 (Tex. Crim. App. 1990). The reports prepared by such chemists are not admissible under the business record or public record exceptions to the hearsay rule. Id. at 806. Accordingly, we agree with appellant that the district court erred by permitting Mott to relate Willets's opinion that the substance in question was cocaine.

At the State's request, Mott also tested the contraband seized from appellant. Mott testified that he detected traces of cocaine in the crack pipe and, like Willets, found cocaine in the rock of suspected crack. In light of this evidence, and given the absence of a serious dispute at trial regarding the nature of the substances tested, we conclude beyond a reasonable doubt that the erroneous introduction of the results of Willets's tests did not contribute to the verdict of guilt. (1) Tex. R. App. P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Point of error one is overruled.

In point of error two, appellant contends the district court improperly permitted proof of an extraneous offense by admitting testimony that appellant had previously been to prison. Tex. R. Crim. Evid. 404(b). One of the arresting officers testified that following his arrest, appellant said, "I don't want to go back to prison, I need to work this thing out." Appellant objected, "I'm going to object on the grounds that at this point we're getting into evidence that the jury should not hear about his testimony that he just testified to about stating not wanting to go back to prison and I would ask the Judge to instruct the jury to disregard that." The objection was overruled. Later, another officer testified that appellant told him that "he didn't want to go back to prison, he wanted to work out the same deal he had last time." Appellant's objection on this occasion was, "I don't think this is a statement against penal interest and I don't think that it's admissible at this time." This objection was also overruled.

Appellant's trial objections do not comport with the contention he makes on appeal. Tex. R. App. P. 52(a). Appellant now relies on a motion in limine granted by the district court by which the State was instructed not to elicit testimony with respect to appellant's criminal record without first obtaining a ruling as to its admissibility. A ruling on a motion in limine, however, does not preserve error for appeal. Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979). Point of error two is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 11, 1995

Do Not Publish

1. Appellant's defense consisted primarily of an attack on the chain of custody of the contraband and an assertion that the prosecution was in retaliation for appellant's refusal to act as an informer for the police.