Don Elray Stark v. The State of Texas--Appeal from 273rd District Court of Sabine County

NO. 12-04-00311-CR

NO. 12-04-00312-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TONI TARONI STARK, APPEAL FROM THE 273RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SABINE COUNTY, TEXAS

DON ELRAY STARK, APPEAL FROM THE 273RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SABINE COUNTY, TEXAS

MEMORANDUM OPINION

Following a jury trial, Appellants Don Elray Stark and Toni Taroni Stark were convicted of possession of a controlled substance and were each sentenced to 365 days of confinement, probated for 365 days. // In one issue, Appellants contend that the trial court erroneously admitted evidence seized during a search of their home. We affirm.

Background

On May 24, 2004, Appellants were indicted for possessing a controlled substance, namely methamphetamine, in an amount of less than one gram. After pleading not guilty to the charge, Appellants cases went to trial on September 7, 2004. At the trial, Captain Stacey Chambers, a deputy sheriff with the Jasper County Sheriff s Office, testified that on January 10, he took part in a drug raid at Appellants house. During the raid, Chambers observed Lieutenant Joe Sterling, also a deputy sheriff with the Jasper County Sheriff s Office, place into individual packages 1) a coffee filter with white residue, 2) a vial taken from the side of Toni s bed, and 3) a brown vial taken from the guest bedroom of Appellants house. Chambers also observed Sterling label each package with a letter of the alphabet. Chambers then placed each of these items in one box and sent it to the DPS crime lab for testing. He further stated that each of the three items tested positive for the presence of methamphetamine. When the testing was complete, Chambers stated that Lieutenant Aaron Tippet retrieved the box that contained the items from the crime lab in Houston. Photographs of these items, taken during the seizure, were admitted into evidence without objection. The State then attempted to admit the actual items into evidence; however, Appellants objected to their admission on the basis that the proper chain of custody had not yet been proven. The trial court sustained the objection.

Dottie Collins, a criminalist with the Texas Department of Public Safety Crime Laboratory in Houston, testified that the box containing the items was received on January 20 by Don Terbolla, an analyst at the crime lab. Collins stated that she performed tests on the items and that they tested positive for methamphetamine. After Collins analyzed the items, she placed each item in the box, sealed the box, wrote her initials and the date on it, and placed the box in the vault at the crime lab. At trial, Collins identified her initials on the box as the ones she wrote after she concluded the tests, placed the items in the box, and sealed it. She also stated that Tippet retrieved the items from the crime lab. The State then moved to admit the items and Collins s report, which detailed her findings. Appellants did not object to Collins s report; however, they did object to the items on the basis that the proper chain of custody had not been shown. The trial court overruled their objection and admitted the items and the report.

At the conclusion of the trial, Appellants were found guilty and were sentenced to 365 days of confinement, probated for 365 days. Appellants challenge the guilty verdict in one issue.

Review of the Trial Court s Ruling

In their sole issue, Appellants contend that the trial court erred by admitting the items containing methamphetamine because the proper chain of custody was never shown. Specifically, they argue that the proper chain of custody of the items was broken because Sterling, the officer who placed the items in the packages, never testified. The State maintains that 1) Appellants failed to preserve any error on this issue and 2) the admission of the evidence was not in error. We agree.

In order to properly preserve error, the record must show that a timely request, objection, or motion was made to the trial court and that the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1. The court of criminal appeals has repeatedly held that an objection to evidence is not timely if it is made after the evidence is admitted without objection or after testimony regarding the evidence is allowed without objection. See Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000). Therefore, the proper objection must be made as soon as the grounds of objection become apparent. Id.

In the instant case, Appellants have waived any argument about the admission of the items because they did not object when 1) Chambers discussed finding the methamphetamine in Appellants house, 2) Collins testified about discovering the presence of methamphetamine on the items, and 3) the photographs of the items containing the methamphetamine were admitted.

Even if Appellants had not waived the alleged error, their argument regarding the chain of custody of the items would still fail. Courts have continuously held that a chain of custody is conclusively proven if an officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item for trial. Simmons v. State, 944 S.W.2d 11, 12 (Tex. App. Tyler 1997, pet. ref d). Absent evidence of tampering, an objection that the State has failed to establish a proper chain of custody goes to the weight of the evidence rather than to its admissibility. Id.

The Texas Rules of Evidence do not specifically address the chain of custody issue; however, they do provide that the authentication or identification of an item as a condition precedent to its admissibility is satisfied if the evidence is sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). Thus, in instances in which proof of chain of custody is necessary, the State must adduce such proof to establish that the evidence is what the State says it is. Simmons, 944 S.W.2d at 12-13.

In Appellants cases, the State established the identity of the items containing methamphetamine that were seized at their residence. Chambers stated that he 1) observed Sterling package each item individually and mark each package, 2) was the person who sent the package containing each item to the DPS crime lab, and 3) identified the labeling Sterling put on each item when they were seized. Collins testified that she 1) received the items, 2) tested them, 3) placed them back in the package they were sent in, 4) initialed and dated the package, and 5) placed the package in a vault at the crime lab. Both Chambers and Collins testified that Tippet was the person who retrieved the package from the crime lab in order to present it and its contents at trial. Therefore, the evidence established that the items containing methamphetamine were what the State claimed they were, which was the contraband seized from Appellants residence. Appellants sole issue is overruled.

Disposition

The judgments of the trial court are affirmed.

DIANE DEVASTO

Justice

Opinion delivered August 24, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)