Opinion
No. 05-10-00084-CR No. 05-10-00085-CR No. 05-10-00086-CR No. 05-10-00087-CR
08-07-2012
KENNETH RAY HALL, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and RENDER in part, REVERSE and REMAND in part, AFFIRM in part;
Opinion issued August 7, 2012
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-52101-LPM, F09-52102-UPM, F09-52103-SPM, and
F09-71471-HPM
OPINION
Before Chief Justice Wright and Justices Morris and Fillmore
Opinion By Chief Justice Wright
Appellant Kenneth Ray Hall was convicted by a jury of unlawful possession of a firearm by a felon, possession of less than one gram of cocaine, and two aggravated robberies. In seven points of error, he argues the evidence is insufficient to support the firearm conviction, the State engaged in improper jury argument, the trial court erroneously overruled a Confrontation Clause objection, and there was error in the jury charge. We affirm in part, reverse and render in part, and reverse and remand in part.
Appeal number 05-10-00084-CR; trial court cause number F09-52101-LPM.
Appeal number 05-10-00085-CR; trial court cause number F09-52102-UPM.
Appeal numbers 05-10-00086-CR and 05-10-00087-CR; trial court cause numbers F09-52103-SPM and F09-71471-HPM.
Background and Procedural History
On the night of February 28, 2009, Aaron Quirino and Carlos Fuentes went to a bar that was down the street from Quirino's home at 2003 Madiera in Dallas, Texas. After they walked back to Quirino's home approximately five or six hours later, Quirino went to his front door when Fuentes reminded him they had planned to get something to eat. Fuentes approached the passenger door of his car, which was parked in front of Quirino's house, to unlock it for Quirino, and saw a man wearing a hooded sweatshirt jump out of the driver's side door. The hooded figure ran into Quirino, who was walking towards the car.
The hooded man pulled out a .38-caliber revolver, pointed it at Quirino, and said, "Give me your shit." Quirino gave the man his wallet, then turned around and ran away. The hooded figure moved to where Fuentes was standing, threatened him with the gun, and demanded his wallet. Fuentes, however, having already taken his wallet and thrown it on the ground to hide it, told the
hooded man he did not have a wallet. Another man, described by Fuentes as "the Anglo gentleman," patted Fuentes down and found forty or fifty dollars in Fuentes' pocket. The "Anglo" man said, "Give me all your shit," and took Fuentes' keys, jacket, and cigarettes. Both of the robbers then ran towards a nearby car and quickly drove away. Fuentes grabbed his cellular phone and attempted to follow them. He called 911, and the police arrived several minutes later.
Several hours later, the Dallas police located a suspicious vehicle occupied by three men--appellant, Anthony Ryals, and Jerry Graham. Officers stopped the car for a traffic violation, and inside the car they found a .38-caliber handgun and some property that had been reported stolen by Quirino and Fuentes. According to one of the officers who made the stop, appellant, who was wearing a tan sweatshirt "hoody," appeared to be trying to hide the handgun by kicking it underneath the seat. The occupants of the vehicle were arrested. Three "baggies" of a white powder substance that "field-tested" as cocaine were discovered in one of appellant's socks.
Appellant later gave a written statement to the police admitting to involvement in a car burglary, and to being surprised by the car owner and another man at the scene. The statement, which was admitted at trial, reads in part:
Tony picked me and my cousin up in his car. I told him to drive me around to look for [a] vehicle to break in and I will give him some money. I told him to stop the vehicle in this street, where I got off and started to walking [sic]. I saw this blue car with the window rolled [up] and entered the car. I was trying to get the stereo.
When the owner of the car came up, he told me to get out of his car. The owner of the car was with another person and they banged on the vehicle, demanded that I get out. The men were angry and I came out of the car holding a gun to protect myself. I did not point the gun at anybody. I saw Tony took the man's jacket. I don't know why Tony took the man's jacket. We both then ran to Tony's car and left.
The jury found appellant guilty of each of the aggravated robberies as well as unlawful possession of a firearm by a felon and possession of less than one gram of cocaine. See Tex. Penal Code Ann. §§ 29.03(a)(2), 46.04(a) (West 2011); Tex. Health and Safety Code Ann. § 481.115(a) (West 2010). The trial court assessed appellant's punishments at ten years in prison for possession of the cocaine and the firearm offenses, and forty-five years' imprisonment for each of the two aggravated robberies. The judgments ordered the sentences to be served concurrently. This appeal followed.
Discussion
Unlawful Possession of a Firearm
In his first point, appellant contends the evidence is legally insufficient to sustain the conviction for unlawful possession of a firearm by a felon in appeal 05-10-00084-CR because there is no evidence to prove he possessed a firearm within five years of being released from confinement on a prior felony. We agree.
When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.); Clayton v.. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. See Wise, 364 S.W.3d at 903; Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge .sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.. Id.
The indictment in cause 05-10-00084-CR alleged that, on or about February 28, 2009, appellant:
did then and there intentionally and knowingly possess a firearm, to-wit, a HANDGUN,
After said defendant was duly and legally convicted on the 17TH day of FEBRUARY, 2003, of the offense of ROBBERY in the CRIMINAL DISTRICT COURT NO. 4 of DALLAS County, Texas, in a case docketed as F02-52409 and entitled The State of Texas v. KENNETH RAY HALL, and said court had jurisdiction over said prior offense,
And said possession occurred before the fifth anniversary of the defendant's release from CONFINEMENT for said prior felony offense.
A person who has been convicted of a felony commits an offense if he or she possesses a firearm (1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by subdivision one, at any location other than the premises at which the person lives. Tex. Penal Code Ann. § 46.04(a).
At trial, the State attempted to prove appellant's prior conviction (cause number F02-52409) by offering a certified copy of the judgment. This exhibit, which was admitted into evidence and published to the jury, recited that appellant had been convicted of robbery on February 17, 2003, based on a plea of guilty, and that a sentence of five years in prison and a $1500 fine was imposed. The judgment also recited that appellant was, at the time of the conviction, credited for having served nearly eight months of incarceration, or "06/29/02--02/17/03." The record, however, does not show when appellant was released from confinement for the robbery conviction.
Relying primarily on Nguyen v. State, 54 S.W.3d 49 (Tex. App.--Texarkana 2001, pet. ref'd), the State contends section 46.04 does not require it to prove the date the defendant was released from prison or supervision unless the defendant was in possession of a firearm at the premises where he lives. Furthermore, because the evidence in this case showed appellant possessed a firearm at a location other than the premises where he lived, appellant's "guilt was shown under subsection (a)(2), and not (a)(1), of the statute."
In Nguyen, the indictment alleged Nguyen intentionally or knowingly possessed a firearm after being convicted of a felony offense on April 30, 1993, and before the fifth anniversary of his release from community supervision. Id. at 56. The evidence showed Nguyen had been convicted of a felony in California on April 30, 1993, and placed on three years' community supervision. Id. at 55. Both parties acknowledged that Nguyen's term of community supervision was scheduled to end on April 29, 1996, less than five years before January 6, 1999, the date alleged in the indictment. Id. Nguyen argued that because the State alleged he committed the offense on or about January 6, 1999, the State had to prove he was not released from community supervision before January 6, 1994. Id. Rejecting this argument, the court of appeals concluded a hypothetically correct jury charge would not require the State to prove the date of Nguyen's release from community supervision. Id. at 56. The court noted:
As mentioned previously, the statute prohibits felons from possessing a firearm. Thus, it is simply irrelevant when Nguyen was released from community supervision, unless the State alleged that he was in possession of a firearm at the premises where he lived. A jury charge that required the State to prove when Nguyen was released from community supervision would not be one that accurately sets out the law or adequately describes the particular offense, but would be one that unnecessarily increases the State's burden of proof.Id.
The court nonetheless reversed the unlawful possession of firearm conviction because the evidence was factually insufficient to prove Nguyen actually possessed the firearm. See id. at 55, 56-57.
More recently, however, the Texarkana Court of Appeals has overruled this part of Nguyen. In Fagan v. State, 362 S.W.3d 796 (Tex. App.--Texarkana 2012, pet. ref'd), as in this case, the indictment relied on subsection (a)(1) of 46.04. Id. at 800. The court of appeals began by noting that "[s]ection 46.04 does not 'necessarily require proof of the date of release from confinement in all cases.'. Id. (quoting Tapps v. State, 257 S.W.3d 438, 445 (Tex. App.--Austin 2008), aff'd on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009)). The court then quoted with approval the following discussion of section 46.04, which is taken from the Austin Court of Appeals' Tapps opinion:
'Under section 46.04, the period during which firearm possession by a felon is forbidden begins on the date of conviction (the date one is 'convicted of a felony') and ends on the fifth anniversary of the person's release from confinement or the person's release from any form of supervision or parole, whichever date is later. Thus, the minimum period that a felon will be prohibited from possessing a firearm-assuming the felon is released from confinement or supervision on the date of conviction or is never confined--is five years from the date of conviction. The date of release from confinement is necessary to determine the maximum length of this period specifically when the period extends beyond five years from the date of conviction. The date of release from confinement is not necessary when the alleged possession occurs within five years of the date of conviction because the period of prohibition extends for this duration in any event.'Id. (quoting Tapps, 257 S.W.3d at 445 (citations omitted)).
In Fagan, the State introduced a judgment showing the defendant had been convicted of burglary of a habitation on October 28, 2004. Id. at 800-01. He received a four-year sentence for the offense, with 238 days of time credited, and the firearm offense occurred on or about August 7, 2010. Id. Because "Fagan's offense occurred outside of the minimum period of confinement described above," it was "necessary for the State to prove the date of release from confinement or supervision." Id. at 801. But "the State failed to provide evidence showing Fagan's date of release from confinement or supervision," so the evidence was insufficient to support the conviction for unlawful possession of a firearm by a felon, as alleged in the indictment. Id. Addressing its prior opinion in Nguyen, the court added:
The State cites to Nguyen v. State, 54 S.W.3d 49 (Tex. App.--Texarkana 2001, pet. ref'd). While we find no fault with the logic of Nguyen, the Texas Court of Criminal Appeals has now made it clear that when the State pleads one specific element that contains alternatives for that element, the sufficiency of the evidence is measured by the element that was actually pled, not any other statutory alternative element. Cada v. State, 334 S.W.3d 766, 774 & n.36 (Tex. Crim. App. 2011) (citing Macias v. State, 136 S.W.3d 702, 705.06 (Tex. App.--Texarkana 2004, no pet.)). To the extent Nguyen conflicts with our ruling here, it is overruled.Id. at 799 n.1.
Appellant argues the present case should be guided by our opinion in Wright v. State, No. 05.08.00778-CR, 2009 WL 1887127 (Tex. App.--Dallas July 2, 2009, pet. ref'd) (not designated for publication). In Wright, we reversed a conviction for unlawful possession of a firearm by a felon because the evidence was legally insufficient to prove Wright possessed a firearm within five years of being released from confinement on the prior alleged felony. Id. at *8. The record showed Wright had been convicted of the alleged prior felony on April 25, 2002, and the indictment alleged Wright unlawfully possessed the firearm on April 27, 2007. Id. Because the evidence showed Wright possessed a firearm five years and two days after his prior felony conviction, the date of Wright's release from confinement was thus necessary for a determination he possessed the firearm before the fifth anniversary of his release from confinement for that prior felony. See id. (citing Tapps, 257 S.W.3d at 445). But although the evidence showed the date of Wright's conviction, there was no evidence indicating the date of his release from confinement. Id. As a result, the State failed to meet its burden of proving the timing element for a violation of section 46.06. Id. at *9 (citing Tapps, 257 S.W.3d at 445).
We reach a similar conclusion in this case. Viewing the evidence in the light most favorable to the verdict, the minimum period appellant was prohibited from possessing a firearm was five years from the date he was convicted of the prior felony. Appellant was convicted of that prior felony on February 17, 2003. Thus, the minimum period he was prohibited from possessing a firearm expired on February 17, 2008. The instant offense date, February 28, 2009, falls beyond that date. The maximum period appellant was prohibited from possessing a firearm was five years from the date of his release from confinement. Though the evidence in the record shows the date of appellant's conviction, there is no evidence showing the date he was released from confinement. Without any evidence showing the date appellant was released from confinement, the State failed to meet its burden of proving the timing element for a violation of section 46.06. See Wright, 2009 WL 1887127, at *9-10 (citing Tapps, 257 S.W.3d at 445). As a result, a rational jury could not have found an essential element of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Therefore, based on the record before us, we conclude the evidence is legally insufficient to prove appellant possessed a firearm after his conviction and before the fifth anniversary of his release from confinement for his prior felony. Point of error one is decided in appellant's favor.
State's Closing Argument
In his second and third points, appellant argues the trial court erred by overruling appellant's objections to the State's closing argument in the unlawful possession of a firearm by a felon case, 05-10-00084-CR, because the State "asked the jury to speculate . . . as to the date of Appellant's release from confinement in a prior conviction." We have already concluded the conviction in 05-10-00084-CR must be reversed for insufficient evidence; therefore, we need not address these issues.
Confrontation Clause
In his fourth and fifth points, appellant argues the trial court erred by admitting the drug analysis report and testimony concerning the drug analysis because appellant was not afforded an opportunity to cross-examine the individual who performed the analysis and prepared the report.
During its case-in-chief, the State called Monica Lopez, a supervisor at Southwest Institute of Forensic Sciences (SWIFS). Lopez testified that, as the drug lab supervisor, her duties included "receiving and analyzing for the presence or absence of controlled substances, reviewing case records, overseeing the day-to-day operations of the drug laboratory, and testifying in court as needed." Lopez identified State's exhibit three as the evidence delivered to the laboratory by the Dallas Police Department for analysis. The prosecutor asked, "Did Whitney Smith analyze--[?]" Appellant immediately objected to hearsay and asked to approach the bench. During the bench conference, appellant objected that "[i]t is not the actual analyst of the drugs under confrontational [sic] clause and hearsay." The prosecutor stated:
She is right there. She has personal knowledge. She supervised Whitney Smith. Her name is on the record. She concurs with all the findings. She was there when the analysis took place. She is a custodian of record.
Appellant replied that "[t]he cases have shown that is not enough." The prosecutor said, "That is not true." The bench conference concluded with the trial court telling the prosecutor that she "may proceed." Lopez subsequently testified that Whitney Smith, an analyst at SWIFS, analyzed the drugs at issue, that Lopez supervised Smith, and Lopez was not present when Smith analyzed the drugs. Appellant again objected to Lopez's testimony "if she wasn't present," after which the court held a hearing out of the jury's presence.
During that hearing, appellant objected that Lopez's testimony was hearsay because she was not present during the analysis. Appellant also argued he had a right to confront the witnesses against him and was "being denied that right." The prosecutor responded:
Judge, this is just like a medical examiner who testifies instead of the medical examiner who did the examination. She is a custodian of the records, she is familiar with all the procedures that take place and that they are the same procedures for each and every testing. She has made her signature on this document as the reviewer and she will testify that she does in fact concur with those findings. . . .Appellant replied that Lopez was not present when the drugs were tested and, therefore, did not know "exactly what procedures were employed on this particular evidence." The State contended Lopez "doesn't have to be there" because "[t]hat is what a custodian of the record does," that Lopez could "testify to all the procedures as the supervisor and as the person that placed their signature on this document," and that the jury could decide for itself "whether or not they believe[d]" Lopez's testimony. The trial court overruled appellant's objection.
Lopez testified before the jury that the material in question--"[t]he contents of three purple Ziplock bags"--was tested and found to weigh .19 grams. The material contained .13 grams of cocaine. She also identified State's exhibit eight as a copy of the lab report "that was generated by our laboratory." The report was signed by "[a]nalyst" Whitney Smith and by Lopez as "[r]eviewer." The State then offered exhibits three and eight into evidence. Appellant reiterated his hearsay and confrontation clause objections based on the fact that Lopez did not perform the tests. The trial court overruled both objections and admitted the exhibits.
Other evidence regarding the identity of the contraband was supplied by testimony from Officer R. Melo of the Dallas Police Department, who told the jury that, shortly after appellant's arrest, he conducted a "field test" of the substance in State's exhibit three and found it tested positive for cocaine. The drugs were also weighed using a scale at the detention center. According to Melo, the total weight of the drugs and the packaging was .4 grams, the weight of the packaging was .1 gram, and the total weight of the drugs was .3 grams. Melo wrote this information on the evidence bag, which was put in "the drop box" and sent to SWIFS for testing and analysis.
Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Crawford v. Washington, 541 U.S. 36 (2004), appellant argues that admission of the lab report and Lopez's testimony regarding the report violated his Sixth Amendment right to confront the witnesses against him because the person who tested the drugs and prepared the report, Whitney Smith, did not testify at trial. Appellant contends he was harmed by the court's error because the report itself, and Lopez's "mechanistic recitation" of its results, was "the only evidence presented of the gas chromatography/mass spectrometry test results." Appellant also argues that Melo's testimony regarding the results of the "field test" was neither conclusive nor sufficient to show the substance in question contained cocaine.
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 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. In Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710 (2011), 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.
More recently, in Williams v. Illinois, 132 S.Ct. 2221 (2012), the Supreme Court, in a plurality opinion, concluded the admission of expert testimony regarding the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause. Significantly, however, the plurality noted that the lab report about which the expert testified (the report was not admitted into evidence) was prepared before a suspect was identified. "The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose." Id. at 2228. In addition, the plurality also noted that the profile was not inherently inculpatory. "On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today." See id.
The situation in the present case is quite different. We conclude this case is governed by Melendez-Diaz and Bullcoming. To begin with, the substance in question was tested, and the lab report prepared, after appellant's arrest. The lab supervisor, Lopez, testified that another analyst, Whitney Smith, performed the actual testing on the illicit substance and wrote the lab report. No reason was provided for Smith's absence, and the record does not show appellant had a prior opportunity to cross-examine her. Lopez, moreover, did not testify regarding any independent judgment she might have formed based on her own testing and/or analysis of the drug. Indeed, the record indicates she recited Smith's findings and adopted those 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 v. State, No. 05-09-00494-CR, 2011 WL 135897, at *4 (Tex. App.--Dallas Jan. 18, 2011, no pet.) (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. See Bullcoming, 131 S.Ct. at 2715-16; see also Burch v. State, No. 05-10-01389-CR, 2012 WL 2226456, at *5-7 (Tex. App.--Dallas June 18, 2012, no pet.) (not designated for publication) (applying Bullcoming to case where evidence showed another analyst tested illicit substance, prepared the lab report, and there was no indication appellant had prior opportunity to cross-examine analyst); Soto v. State, No. 05-09-01481, 2011 WL 6188598, at *4 (Tex. App.--Dallas Dec. 14, 2011, pet. dism'd) (mem. op., not designated for publication) (applying Bullcoming to case where lab supervisor testified another analyst performed the actual testing on illegal substance, observed readings on the machines, prepared the report, and there was no indication appellant had prior opportunity to cross-examine 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).
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, the trial court instructed the jury if it found from the evidence that on or about February 28, 2009, in Dallas County, Texas, appellant knowingly or intentionally possessed a controlled substance, cocaine, in an amount by aggregate weight, including any adulterants or dilutants, of less than 1 gram, then it should find appellant guilty of the offense of possession of a controlled substance. If the jury did not so find, it should acquit appellant of the offense.
The lab report established the quantity and identity of the substance appellant was charged with possessing. The only other evidence of these facts was supplied by Melo's testimony that a "field test" kit indicated the substance tested positive for cocaine. But the court of criminal appeals has noted that a field test alone is insufficient evidence on which to base a conviction. 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). 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 amount 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 Burch v. State, 2012 WL 2226456, at *7.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 fourth and fifth points. We reverse the conviction in cause 05-10-00085-CR for possession of less than one gram of cocaine and remand that cause to the trial court for further proceedings.
Jury Charge Error
In his sixth and seventh points of error, appellant contends the trial court erred by submitting a conspiracy jury instruction in the aggravated robbery cases, causes 05-10-00086-CR and 05-10-00087-CR.
Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Under that standard, we first determine whether there was error in the charge. Id. at 174. If error occurred and the appellant objected at trial, the reviewing court then determines whether the error was "calculated to injure" the appellant's rights, which means no more than there must be "some harm" to the accused resulting from the error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza, 686 S.W.2d at 171). If, however, the appellant did not object, the reviewing court will reverse only if the error was "fundamental" and so "egregious" that the appellant was denied a fair and impartial trial. Id. (quoting Almanza, 686 S.W.2d at 171).
The jury instructions in both of the aggravated robbery cases contained the following instruction regarding criminal responsibility under sections 7.02(a)(2) and 7.02(b) of the penal code:
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Or if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.See Tex. Penal Code Ann. § 7.02(a)(2), (b) (West 2011). Defense counsel made the following objection to the instruction:
The Defense objects to the conspiracy language in the party's definition on page five of the two aggravated robbery cases. In that they include an additional statement regarding conspiracy to commit one felony and then another is committed by one of the conspirators, that language on the bottom of page five.The trial court overruled the objection:
With respect to the conspiracy issue and the law of parties in the two aggravated robbery cases, the Court will overrule that objection. Given the fact that the facts of the case were such that a burglary of a vehicle was the initial offense that escalated into an aggravated robbery.
On appeal, appellant contends the evidence in this case showed that any agreement between him and his co-conspirators was to commit a burglary of a vehicle. Burglary of a vehicle, however,
is a misdemeanor offense. See id. § 30.04(d). Thus, appellant contends the trial court erred by submitting an instruction based on section 7.02(b), which applies only to felony offenses. Ordinarily, when a complaint on appeal does not comport with the trial objection, nothing is presented for our review. See Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007). To preserve error regarding a jury charge, the objections must be sufficiently specific to point out the errors complained of. Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996); Harkins v. State, 268 S.W.3d 740, 746 (Tex. App.--Ft. Worth 2008, pet. ref'd) see also Tex. Code Crim. Proc. Ann. art. 36.14. Moreover,
In support of this argument, appellant relies upon section 7.02(b). See McCrary v. State, 327 S.W.3d 165, 180 (Tex. App.--Texarkana 2010, no pet.) ("Section 7.02(b) of the Penal Code would not apply, as by definition, it applies only to felony offenses"); Escobar v. State, 28 S.W.3d 767, 773 n.3 (Tex. App.--Corpus Christi 2000, pet. ref'd) (quoting section 7.02(b) and noting the "statute does not apply in this case because the underlying offense is a misdemeanor, not a felony").
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[t]o constitute a valid objection to jury instructions, the objection must be specific and clear enough to apprise the trial court of the nature of the objection.this specificity requirement is to enable the trial court 'to know in what respect the defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury.'Harkins, 268 S.W.3d at 747 (quoting Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985)). In this case, appellant never raised with the trial court the issue he now argues on appeal, but rather, complained broadly of "the conspiracy language" in the instruction. Because appellant's objection at trial does not comport with his complaint on appeal, we treat this issue as one of unobjected-to charge error and reverse only if we determine the alleged error resulted in egregious harm.
Before reaching the question of harm, however, we must determine whether there was error in the charge. "In general, an instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties." Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999). In determining whether a defendant participated as a party in the commission of an offense, the fact finder may look to events that occurred before, during, or after the offense, and may place reliance on acts showing an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh'g). Since an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be placed upon the actions of the parties showing, either by direct or circumstantial evidence, an understanding and common design to do a certain act. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Rivera v. State, 990 S.W.2d 882, 887 (Tex. App.-Austin 1999, pet. ref'd).
Depending on its assessment of the witnesses' credibility, the jury in this case could have drawn any number of reasonable deductions regarding appellant's conduct. During his interview with the police and in his written statement, for example, appellant attempted to minimize his involvement in the robberies. Yet, evidence reasonably showed that appellant conspired with another individual to burglarize a car and share the proceeds of the burglary with that individual, and that appellant, according to his written statement, "came out of the car holding a gun to protect myself." The jury, moreover, could have reasonably inferred the object of the conspiracy was not burglary but theft, that appellant carried the gun to advance that objective and not merely to protect himself, that the ensuing robberies were in furtherance of the conspirators' unlawful purpose, and that the robbery by Ryals should have been anticipated. We also note that under section 30.04 of the penal code, burglary of a vehicle may be either a class A misdemeanor or a state jail felony, depending on whether the defendant has been convicted two or more times under that provision. Tex. Pen. Code Ann. § 30.04(d)(1), (2)(A). The evidence in this case showed appellant had been convicted several times of burglary. For these reasons, we therefore conclude the trial court did not err when it instructed the jury pursuant to section 7.02(b). We overrule appellant's seventh and eighth points.
Conclusion
We reverse appellant's conviction in 05-10-00084-CR for unlawful possession of a firearm by a felon and render a judgment of acquittal on that charge. We reverse appellant's conviction in
in cause 05-10-00085-CR for possession of less than one gram of cocaine and remand that cause to the trial court for further proceedings. We affirm the court's judgments in causes 05-10-00086-CR and 05-10-00087-CR, the aggravated robbery cases.
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
100084F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH RAY HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00084-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 52101-LPM).
Opinion delivered by Chief Justice Wright, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and we RENDER judgment that appellant is hereby ACQUITTED.
Judgment entered August 7, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH RAY HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00085-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 52102-UPM).
Opinion delivered by Chief Justice Wright, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered August 7, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH RAY HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00086-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 52103-SPM).
Opinion delivered by Chief Justice Wright, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 7, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH RAY HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00087-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 71471-HPM).
Opinion delivered by Chief Justice Wright, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 7, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE