Opinion
06-19-00205-CR
08-04-2020
JUSTIN LANE PRICE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court Cass County, Texas
Trial Court No. 2019F00029 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Following a jury trial, Justin Lane Price was found guilty of possession of a controlled substance, to wit, methamphetamine in an amount greater than four grams, but less than 200. He was sentenced to twenty-five years' imprisonment. Price appeals, maintaining that the trial court erred when it denied his motion for a court-appointed expert and that the trial court erroneously imposed court costs. We find that (1) the trial court did not err when it denied Price's motion for a court-appointed expert, but (2) the bill of costs must be modified to reflect the assessment of a $4.00 fee for jury "reimbursement," not jury "disbursement." We affirm the trial court's judgment, as modified.
In early 2018, Trooper David Stewart, with the Texas Department of Public Safety (DPS), conducted a traffic stop in Linden, Texas, after observing an expired vehicle-registration sticker on the windshield of a vehicle owned and driven by Breanna Carter. Stewart initially identified the individuals in the vehicle and learned that, along with Carter, Joshua Bradshaw was in the front passenger seat and that Price was in the backseat directly behind Bradshaw. According to Stewart, Carter "was nervous from the beginning." Stewart said that both Bradshaw and Price seemed extremely nervous, refusing to make eye contact with him. After determining the occupants' identities, Stewart called for another trooper, Kody Edwards, to assist him with questioning them. Bradshaw was the first person to exit the vehicle. Edwards then asked Price to exit the vehicle, and he complied with Edward's request. Due to Carter's apparent nervousness, Stewart asked her if she would allow him to search her vehicle. Carter consented to the search and exited the vehicle.
Stewart explained that Carter was so nervous that he could see her pulse beating in her neck.
During the search, Edwards found in Carter's purse a small baggie that contained what he believed to be a very small amount of methamphetamine. The troopers continued searching the vehicle, at which point Edwards located an energy drink in the pocket of the right rear door adjacent to the seat Price had occupied. Edwards looked inside the can and found liquid and a "baggie that [contained] some crystal substance." They also found, inside Carter's purse, two glass pipes of a type used for smoking methamphetamine. After finding the items, the officers arrested Price and Carter and transported them to the county jail.
The substance was later confirmed to be methamphetamine.
Bradshaw was released.
The substance that had been found in the can was sent to a Tyler drug laboratory in two separate containers. One container was a plastic baggie containing the liquid that had been found in the baggie inside of the can, and the other was a plastic bottle that contained the larger portion of the liquid that had been found in the can. After analyzing the contents of the containers, it was determined that 1.41 grams of a methamphetamine/energy drink mix were in the baggie and 71.57 grams of a methamphetamine/energy drink mix were in the plastic bottle, for a total of 72.98 grams.
Before trial, Price asked the court to appoint an expert to assist him in challenging the State's weight measurements. After a hearing, Price's motion was denied. A jury trial commenced, and Price was found guilty of possession of a controlled substance in an amount of more than four, but less than 200, grams. The trial court sentenced Price to twenty-five years' confinement in prison and assessed court costs against him in the amount of $424.00.
(1) The Trial Court Did Not Err When It Denied Price's Motion for a Court-Appointed Expert
Price contends that the trial court erred when it denied his motion for a court-appointed expert. We review for an abuse of discretion the trial court's decision to deny a motion for a court-appointed expert, guided by the Texas Court of Criminal Appeals' decision in Ehrke v. State, 459 S.W.3d 606, 617 (Tex. Crim. App. 2015).
In Ehrke, the Texas Court of Criminal Appeals held that, because "[t]he right to pay for an independent chemist to analyze the controlled substance in a controlled-substance case is absolute," id. at 614, "the trial court is required to permit a defendant in a controlled-substance case to have an independent expert analyze the controlled substance," id. at 610. Yet, it also held that, "while a defendant has an absolute right to inspect the alleged controlled substance, a defendant does not have an absolute right to a state-appointed expert." Id. at 615. In other words, "the state does not need to 'purchase for the indigent defendant all the assistance that his wealthier counterpart might buy.'" Id. at 614 (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Thus, "the trial court is not required to appoint such an expert for an indigent defendant, absent a preliminary showing of a significant issue of fact." Id. at 610.
In this case, we examine whether Price met his burden "to provide concrete reasons for why the expert should be appointed." Id. at 615. In his motion, Price maintained that there was approximately one-fourth of a gram of methamphetamine in the can and that it was improper for the State to include, in its measurements, both the purported methamphetamine, the energy drink can, and the contents of the can. Before trial, the court heard Price's motion. In the hearing, Price did not dispute the aggregate amount of the State's tested sample. Instead, he argued that "[the methamphetamine] dissolved into the energy drink, but the energy drink is not a dilutant under the statute, such that it shouldn't be counted in the weight. The energy drink, the liquid itself." We disagree.
In support of its weight measurements, the State presented Karen Collins, a forensic scientist employed by the DPS criminal laboratory. Collins testified that she received one plastic bottle containing yellow liquid and one zip-lock baggie containing a yellow liquid. Collins first tested the liquid in the plastic bottle. She stated that "the yellow liquid itself weighed 71.57 grams." Collins confirmed that the yellow liquid contained methamphetamine. She also explained that there was no way to determine how much of the 71.57 grams of liquid was methamphetamine or was, instead, some other substance. According to Collins, the substance in the plastic bag weighed 1.41 grams and contained methamphetamine. Again, Collins testified that there was no way to determine how much of the 1.41 grams of liquid was methamphetamine. Price did not present any witnesses or any evidence during the hearing. After hearing Collins's testimony and arguments of counsel, the trial court denied Price's motion.
The term "controlled substance" includes the "aggregate weight of any mixture, solution, or other substance containing a controlled substance." TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (Supp.) (emphasis added). The State is not required to determine the amount of the controlled substance separately from the amount of the adulterant and dilutant that constitutes the mixture. TEX. HEALTH & SAFETY CODE ANN. § 481.115; see Isassi v. State, 91 S.W.3d 807, 810 (Tex. App.—El Paso 2002, pet. ref'd); Williams v. State, 936 S.W.2d 399, 405 (Tex. App.—Fort Worth 1996, pet. ref'd). "'Adulterant or dilutant' means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance." TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (Supp.).
The trial court's jury instructions conformed to the statute's definition.
Thus, the State was required to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equaled the alleged minimum weight. See Isassi, 91 S.W.3d at 810. The evidence showed that the aggregate weight of the liquid totaled 72.98 grams, which was well above the required minimum of four grams.
To be entitled to the requested relief, Price was required to demonstrate that the State's scientific methods were somehow faulty or tainted. Price did not present a live witness at the hearing or present or file an affidavit of any kind in support of his position. Moreover, Collins testified that there was no way to determine how much of the liquid was actually methamphetamine. Price did not make the required preliminary showing of a significant issue of fact. See Ehrke, 459 S.W.3d at 610. Therefore, the trial court did not err when it denied Price's motion for a court-appointed expert witness. We overrule this point of error. (2) The Bill of Costs Must Be Modified to Reflect the Assessment of a $4.00 Fee for Jury "Reimbursement"
Price maintains that the trial court's imposition of "some costs of court" was not supported by the law or the record. Citing Article 102.0045 of the Texas Code of Criminal Procedure, Price contends that the clerk's bill of cost identified a line item as "jury disbursement," rather than "jury reimbursement." A $4.00 fee was attached to that particular item. Noting that the total amount of the clerk's bill of costs was $424.00, Price contends that the $4.00 fee "should be removed from the judgment and the total should be $420.00." We disagree.
Former Section 102.0045(a), entitled "Fee for Jury Reimbursement to Counties," states,
A person convicted of any offense, other than an offense relating to a pedestrian or the parking of a motor vehicle, shall pay as a court cost, in addition to all other costs, a fee of $4 to be used to reimburse counties for the cost of juror services as provided by Section 61.0015, Government Code.TEX. CODE CRIM. PROC. ANN. art. 102.0045(a). Price is correct that the clerk's bill of costs assessed a $4.00 "jury disbursement fee," and not a $4.00 "jury reimbursement fee." He also concedes that "jury disbursement fee" is presumably misnamed, but should have been a "jury reimbursement fee." With that, we agree. Finding no harm to Price as a result of the alleged error, we modify the clerk's bill of costs, which is otherwise correct, by replacing the word "disbursement" with the word "reimbursement."
In 2019, the Texas Legislature addressed the allocation, classification, and consolidation of particular criminal court costs and related fines, fees, and costs. See generally Act of May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex. Gen. Laws 3981 (effective January 1, 2020). Article 102.0045 of the Texas Code of Criminal Procedure was among those repealed provisions in 2019. Yet, an offense before the effective date of the Act is governed by the law that was in effect at the time of the offense. Id. at 4035. We cite the version of Article 102.0045 as it existed at the time the offense was committed in January 2018. See Act of May 27, 2005, 79th Leg., R.S., ch. 1360, § 5, 2005 Tex. Gen. Laws 4255, 4256 (repealed 2019).
We overrule this point of error.
We modify the clerk's bill of costs to reflect the assessment of a $4.00 jury "reimbursement fee." The trial court's judgment is affirmed, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: July 27, 2020
Date Decided: August 4, 2020 Do Not Publish