Opinion
No. 07-16-00389-CR No. 07-16-00390-CR
01-25-2018
ERIC PASCUAL CANTU, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas
Trial Court Nos. CR-15F-113 & CR-15F-114 , Honorable Roland D. Saul, Presiding
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and HATCH, JJ.
Honorable Les Hatch, Judge, 237th District Court, sitting by assignment.
Appellant, Eric Pascual Cantu, was convicted by a jury of delivery of a controlled substance in an amount less than one gram within a drug-free zone, a third-degree felony, and delivery of a controlled substance in an amount less than one gram enhanced to a third-degree felony by two prior state jail felony convictions. The trial court sentenced appellant to nine years imprisonment and assessed a $10,000 fine for each conviction, with the sentences to run concurrently. On appeal, appellant contends the trial court erred in admitting the testimony of Chief Deputy Sheriff Damon Parkhurst, claiming his testimony was irrelevant and unfairly prejudicial, and that the State failed to authenticate the drugs due to gaps in their chain of custody. We modify the trial court's judgments and, as modified, affirm.
TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (b) (West 2017); 481.134(d) (West 2017).
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (b); TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2017).
Background
These cases arise from two drug transactions between appellant and Jesus Luna, a confidential informant working with the Hereford Police Department.
On July 1, 2014, Luna met with Sergeant Juan Bravo, Lieutenant Robin Ruland, and Sergeant Landon Swan to arrange a drug purchase from appellant. Pursuant to HPD's operating procedure, the officers searched Luna's person and vehicle for drugs and weapons. Finding no contraband on Luna or in his vehicle, the officers placed a hidden video camera in Luna's car and gave him $50 to purchase drugs from appellant. Luna then called appellant and drove to appellant's residence.
The officers followed Luna to the residence and parked at separate observation points. They watched Luna arrive at appellant's residence, observed appellant enter Luna's car, saw Luna and appellant drive briefly from the home through the neighborhood, and watched Luna and appellant return to the residence. During this time, the officers also listened to audio from inside of Luna's vehicle using a cell phone. After Luna left appellant at the residence, Luna drove to a predetermined location, while under continued surveillance, to meet the officers. Once there, the officers recovered a small bag of methamphetamine from Luna. Luna and his vehicle were searched again, and no money or other drugs were found.
This procedure was repeated for the second drug purchase from appellant on August 5, 2014. Luna met with the same officers who searched his person and vehicle for contraband. Luna's vehicle was again equipped with a video recording device and he was given $50 to purchase drugs. On this occasion, however, Luna met appellant at the Central Place Apartments, located across the street from a city park with a playground. Luna arrived at the apartment complex, while under surveillance, but could not find appellant. He then drove from the apartment complex to appellant's home and back to the complex. Upon his return, Luna found appellant and met with him in Luna's car. The officers observed their meeting from a distance and listened to their conversation from a cell phone in the car. Immediately after the meeting ended, the officers followed Luna to a predetermined location and recovered a small bag of methamphetamine. No money or other contraband was found on Luna or in his car after the purchase.
Appellant was indicted on two charges of delivery of a controlled substance, one charge enhanced for occurring in a drug-free zone and the other enhanced by prior convictions. At trial, officers Bravo, Ruland, and Swan testified about the July 1 and August 5 operations. Video recordings of Luna's meetings with appellant were presented to the jury. Ross Havens, a forensic scientist for the Texas Department of Public Safety Amarillo Regional Crime Laboratory, testified that HPD officers delivered the drugs obtained from Luna to the crime laboratory where the drugs were weighed and tested. Havens confirmed that the drugs were methamphetamine and that each specimen weighed less than a gram. Deputy Parkhurst testified as an expert witness concerning common drug transactions and explained the terminology used by Luna and appellant in the video recordings. The jury found appellant guilty on both charges. The trial court assessed punishment, sentencing appellant to nine years confinement with a $10,000 fine for each conviction. The trial court also ordered appellant to repay $5,025 in court-appointed attorney's fees in trial court cause number CR-15F-113.
Discussion
Appellant presents three issues on appeal. By his first two issues, he claims the testimony of Parkhurst should not have been admitted under Rules of Evidence 402 and 403. By his third issue, he contends the trial court erred in admitting evidence of the drugs recovered from Luna and the lab results under Rule of Evidence 901. We will consider appellant's third issue first. We review the trial court's rulings on the admissibility of evidence under an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We must uphold the rulings if they are within the "zone of reasonable disagreement." Id.
Issue 3: Admission of Drug Evidence
At trial, appellant objected to the admission of the drugs and lab results, claiming the State failed to authenticate the drugs obtained from Luna. Appellant argued that there were significant gaps in the chain of custody because Luna was an "unreliable" informant and the officers lost sight of Luna during both the July 1 and August 5 operations. His objections were overruled.
The Rules of Evidence do not specifically address "chain of custody." Silva v. State, 989 S.W.2d 64, 67 (Tex. App.—San Antonio 1998, pet. ref'd). Rather, Rule 901 states that to satisfy the requirement of authenticating an item of evidence, the proponent must produce sufficient evidence to support a finding that the item is what the proponent claims. TEX. R. EVID. 901(a). Thus, Rule 901 does not require any particular standard of proof, but instead requires only that the trial court be satisfied that the evidence is genuine. Llamas v. State, 270 S.W.3d 274, 281 (Tex. App.—Amarillo 2008, no pet.); Garner v. State, 939 S.W.2d 802, 804-05 (Tex. App.—Fort Worth 1997, pet. ref'd). Such evidence is to be received if the trial court finds that a reasonable juror could find that the evidence was authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996).
Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Proof of the beginning and end of the chain of custody will support admission of an object barring any evidence of tampering or alteration. See Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989); Maranda v. State, 253 S.W.3d 762, 770 (Tex. App.—Amarillo 2007, pet. dism'd). Without evidence of tampering, questions concerning care and custody of the object go to the weight to be attached to the evidence and not to its admissibility. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). If the trial court's ruling is within the zone of reasonable disagreement, we must uphold the ruling. Tienda, 358 S.W.3d at 638.
To authenticate the drugs and lab results in appellant's cases, the State presented the testimony of the HPD officers, the video recordings from July 1 and August 5, and the testimony of the DPS chemist who tested the drugs. Luna, however, did not testify before the jury as he claimed to not recall the events of July 1 or August 5 when questioned on voir dire. The officers testified they searched Luna and his vehicle for drugs immediately before he met with appellant on both occasions, and Luna had no drugs in his possession. The officers then surveilled Luna while he met with appellant and they recovered drugs from Luna after both meetings.
After the video recorded from inside of Luna's car on both dates was presented to the jury, officers Bravo and Ruland testified to the terminology used by appellant in his conversations with Luna, including appellant's references to an "eight-ball," "a pipe," and "quarters." The officers testified they photographed, weighed, field-tested, and stored the drugs recovered from Luna in marked containers in an evidence locker; that the drugs were assigned individual case numbers; and that the marked containers were delivered by an HPD officer to the crime laboratory for testing. Havens testified the crime laboratory also gave the drug specimens unique case numbers for identification; placed them in a secured vault before testing; and that the drugs were repackaged, sealed, and stored in the vault after testing until HPD retrieved them.
Based on these facts, we agree that a reasonable juror could have found the drugs and lab results were authenticated. See Tienda, 358 S.W.3d at 638; Watson v. State, 421 S.W.3d 186, 192 (Tex. App.—San Antonio 2013, pet. ref'd); Garner, 939 S.W.2d at 805. Therefore, the trial court did not abuse its discretion in admitting the evidence. Any theoretical gaps or breaches in the chain of custody alleged by appellant, including that Luna was unreliable and that the HPD officers lost sight of Luna for approximately two minutes on July 1 and fifteen minutes on August 5, do not affect the admissibility of the drug evidence. Id. Rather, appellant's issues regarding the chain of custody were considered by the jury in determining the weight of the evidence. See Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref'd).
Accordingly, appellant's third issue is overruled.
Issues 1 and 2: Admission of Parkhurst's Testimony
Appellant also contends the trial court erred in admitting the testimony of Deputy Parkhurst. Parkhurst was not involved in the investigation of appellant's cases, but testified concerning his experience with narcotic investigations and the terminology commonly used in drug transactions. Appellant objected that this testimony was irrelevant and, if relevant, that its probative value was substantially outweighed by unfair prejudice. See TEX. R. EVID. 401, 402, 403. The trial court overruled both objections.
To be relevant, evidence must tend to make a fact of consequence more or less probable than it would be without the evidence. TEX. R. EVID. 401. Evidence which is not relevant is inadmissible. Id. at 402. A trial court's relevancy determination is reviewed for abuse of discretion. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000).
Here, the State was required to prove appellant knowingly delivered a controlled substance on both occasions. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a); 481.002(8) (West 2017) (defining "deliver" to mean the actual or constructive transfer of a controlled substance to another); TEX. PENAL CODE ANN. § 6.03(b) (West 2011) (defining "knowingly" to mean aware of the nature of one's conduct). Delivery under Section 481.112(a) of the Texas Health and Safety Code may be proven by circumstantial evidence. See Royal v. State, 944 S.W.2d 33, 36 (Tex. App.—Texarkana 1997, pet. ref'd).
At trial, the State offered Parkhurst's testimony to explain the terms used by appellant and Luna in the July 1 and August 5 recordings. Parkhurst testified regarding the common meaning of terms used by drug dealers such as "eight-ball," "fifties," "sixties," "seventies," and "quarters;" code names used for methamphetamine; the local street value of methamphetamine; the typical packaging for sale of methamphetamine; how methamphetamine is generally consumed using a pipe; and the common places drug transactions occur. Accordingly, Parkhurst's testimony tended to make a fact of consequence, that appellant delivered methamphetamine to Luna when they met on July 1 and August 5, more or less probable than it would be without the evidence. TEX. R. EVID. 401. His testimony was, therefore, relevant.
Appellant further objected that if Parkhurst's testimony was determined to be relevant, its probative value was substantially outweighed by unfair prejudice, that is having an "undue tendency to suggest decision on an improper basis." See TEX. R. EVID. 403; Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g). When a Rule 403 objection is made, the trial court must determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice. See id. The Rule 403 analysis by the trial court should include, but is not limited to, the following factors: 1) the probative value of the evidence, 2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way, 3) the time the proponent needs to develop the evidence, and 4) the proponent's need for the evidence. See Reese, 33 S.W.3d at 240-41. There is a presumption that relevant evidence is more probative than prejudicial. Montgomery, 810 S.W.2d at 388-89.
In reviewing the trial court's Rule 403 determination, an appellate court "must do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; 'the trial court's determination must be reasonable in view of all relevant facts.'" Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391). The reviewing court is to reverse the trial court's judgment "rarely and only after a clear abuse of discretion," recognizing that the trial court is in a superior position to gauge the impact of the evidence and to balance the relevant factors. See Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Freeman v. State, No. 07-11-00407-CR, 2012 Tex. App. LEXIS 6996, at *10 (Tex. App.—Amarillo Aug. 20, 2012, pet. ref'd) (mem. op., not designated for publication).
Parkhurst's testimony assisted the State with its proof that appellant knowingly delivered controlled substances to Luna on July 1 and August 5, by explaining the terminology used in the recorded conversations and the quantities and prices of the drugs involved. As Luna could not recall his meetings with appellant at the time of trial, the State had a need for the testimony to provide context to the HPD officers' observations and recordings. Parkhurst's testimony did not distract the jury from the main issues of the cases, nor do we see any tendency of his testimony to suggest the jury decided appellant's guilt on an improper basis. Finally, his testimony was brief and took a minimal amount of time. Having considered the relevant factors, we see no merit in appellant's Rule 403 objection.
Accordingly, we overrule appellant's first and second issues.
Reformation of the Judgments
In reviewing the record, the Court has discovered error in the judgments and attached orders to withdraw funds. This Court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). The power to reform a judgment is "not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App—Dallas 1991, pet. ref'd). We reform the judgments and orders to withdraw funds as follows.
First, the trial court orally pronounced that the sentences were to run concurrently, but the written judgments make no such indication. We, therefore, reform the judgments in both causes to provide that the sentences run concurrently.
Second, the judgment and order to withdraw funds in trial court cause number CR-15F-113 improperly requires appellant to repay $5,025 in court-appointed attorney's fees. Appellant was found indigent in both causes and he was appointed trial counsel and appellate counsel. Under Texas Code of Criminal Procedure 26.05(g), the trial court has authority to order reimbursement of court-appointed attorney's fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (a defendant's financial resources and ability to pay are "explicit critical elements" in determining the propriety of ordering reimbursement of fees). Here, the record does not contain any such determination or finding by the trial court that appellant had any financial resources or the ability to repay the attorney's fees. Rather, on the same date the trial court issued the order to withdraw funds, the court also issued an order appointing appellate counsel that finds "from the evidence presented that the Defendant is destitute, without funds and unable to employ an attorney." Accordingly, we reform the judgment and order to withdraw funds in trial court cause number CR-15F-113 and strike the court-appointed attorney's fees of $5,025. See Cates v. State, 402 S.W.3d 250, 215-52 (Tex. Crim. App. 2013).
Third, the judgment and order to withdraw funds in trial court cause number CR-15F-114 improperly cumulated the fines assessed against appellant. The trial court assessed a $10,000 fine for each conviction and ordered appellant's sentences to run concurrently. See TEX. PENAL CODE ANN. § 3.03 (West Supp. 2017) (requiring sentences for offenses arising out of the same criminal episode prosecuted in a single criminal action to be served concurrently, with few exceptions). When sentences are ordered to run concurrently, the judgment should not reflect a cumulated fine. See State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008) (holding that the concurrent sentence provision of Section 3.03 applies to the entire sentence, including fines); Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—Amarillo 2014, pet. ref'd) (deleting cumulated fine from the second judgment). Here, the judgments and orders to withdraw funds in both causes include a $10,000 fine. Accordingly, we strike the $10,000 fine from the judgment and order to withdraw funds in trial court cause number CR-15F-114.
Conclusion
We direct the judgments and orders to withdraw funds in both causes to be corrected consistent with this opinion and further direct the corrected judgments and orders to withdraw funds be delivered to the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgments of the trial court as reformed.
Les Hatch
Justice Do not publish.