Alfred Castellon Lopez v. State

11th Court of Appeals Eastland, Texas Opinion Alfred Castellon Lopez Appellant Vs. No. 11-03-00318-CR -- Appeal from Midland County State of Texas Appellee The jury convicted appellant, Alfred Castellon Lopez, of delivery of heroin in an amount of 4 grams or more, but less than 200 grams. Upon making a finding of Atrue@ to prior felony convictions alleged by the State for enhancement purposes, the trial court assessed appellant=s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 45 years. Appellant raises seven issues on appeal attacking the trial court=s admission of evidence during both the guilt/innocence and punishment phases of the trial. We affirm. Lieutenant Jose Valenzuela of the Texas Department of Public Safety (DPS) testified that he purchased heroin from appellant on August 28, 1999, while working as an undercover narcotics officer.[1] Appellant was not arrested at the time of the transaction because Lieutenant Valenzuela was conducting a Abuy/walk@ investigation in hopes of identifying the source of the heroin. Dennis Hambrick, a criminalist/chemist with the DPS crime laboratory in Midland, testified that his analysis of the substance which Lieutenant Valenzuela purchased from appellant confirmed the presence of heroin. Hambrick additionally testified that the substance weighed 6.19 grams. Appellant attacks Hambrick=s qualifications to testify as an expert in his first issue. He contends that the trial court erred in overruling his objection that Hambrick=s testimony did not satisfy the requirements for scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App.1992). The Supreme Court held in Daubert that scientific expert testimony must be relevant and reliable to be admitted. In Kelly, the Texas Court of Criminal Appeals established the following three-part test for determining the reliability of scientific evidence: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly v. State, supra at 573; see TEX.R.EVID. 702. The burden is upon the proponent of the evidence to prove by clear and convincing testimony that the evidence meets that test. Kelly v. State, supra at 572-73. We will not disturb a trial court=s decision to admit expert testimony absent an abuse of discretion. Hinojosa v. State, 4 S.W.3d 240, 251 (Tex.Cr.App.1999). Hambrick testified that he has been employed as a criminalist/chemist with the DPS crime laboratory in Midland for over 13 years. His duties include analyzing unknown testing samples that are suspected to contain controlled substances. He obtained a bachelor of science degree in chemistry from Sul Ross State University. He has also undergone advanced training in chemistry at Sul Ross and the DPS laboratory in Austin. Hambrick performed two tests on the substance which appellant delivered to Lieutenant Valenzuela. Hambrick testified that he used these tests on a daily basis in his work. Hambrick described the first test as an ultraviolet light test which served as a screening test to determine the group of controlled substances which were present in the testing sample. Hambrick testified that this type of test is an accepted screening test at the local, state, and national levels. He also explained how the ultraviolet light used in the test produces a reading based upon the manner in which the testing sample absorbs the light. The second test which Hambrick performed was a gas chromatography mass spectrometry. Hambrick used this test to determine the particular controlled substance in the testing sample. He testified that this test was accepted throughout the United States as a valid scientific method to determine the substances contained within a testing sample. Hambrick stated that this test utilized a process which separates a mixture of substances into its constituent parts. The test then determines the substances contained in the mixture. Hambrick determined that the testing sample contained heroin based upon his performance of this test. Hambrick entered the data generated by the tests that he performed on the testing sample on a worksheet. A secretary then typed a final report from the worksheet Hambrick prepared. Both Hambrick and his supervisor reviewed Hambrick=s testing results and the final report prior to signing it. The State elicited testimony from Hambrick which detailed his specialized training and extensive experience in analyzing controlled substances. Hambrick=s testimony addressed the acceptance of the tests he performed within the scientific community as valid methods for determining the composition of suspected controlled substances. Based upon this testimony, the trial court did not abuse its discretion by denying appellant=s objection to the reliability of Hambrick=s testimony. Appellant=s first issue is overruled. In his second issue, appellant argues that the trial court erred in admitting the substance which Hambrick tested and Hambrick=s report containing the test results. Appellant contends that these items were inadmissible because the State did not adequately establish the chain of custody for the substance. In advancing this contention, appellant asserts that the State=s evidence was lacking because it did not establish the chain of custody beyond a reasonable doubt. The reasonable doubt standard generally applies to the process of reviewing the legal sufficiency of all of the evidence presented, both admissible and inadmissible, to determine whether the elements of an offense have been logically established. See TEX. PEN. CODE ANN.' 2.01 (Vernon 2003); Jackson v. Virginia, 443 U.S. 307 (1979); Hanks v. State, 137 S.W.3d 668, 671 (Tex.Cr.App.2004); Caddell v. State, 123 S.W.3d 722, 726 (Tex.App. - Houston [14th Dist.] 2003, pet=n ref=d). Absent a statutory requirement otherwise, the reasonable doubt standard is inapplicable to a determination of the admissibility of a particular item of evidence.[2] Accordingly, we disagree with appellant=s assertion that the reasonable doubt standard governs our consideration of his evidentiary challenge. We review the trial court=s decision to admit evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000). If evidence is properly identified, questions concerning care and custody typically go to the weight, not the admissibility, of the evidence. Foster v. State, 101 S.W.3d 490, 498 (Tex.App. - Houston [1st Dist.] 2002, no pet=n). Proof of the beginning and the end of the chain of custody will support admission of the evidence unless there is a showing of tampering or alteration. Durrett v. State, 36 S.W.3d 205, 208 (Tex.App. - Houston [14th Dist.] 2001, no pet=n). The chain of custody is established if an officer testifies that he seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Cr.App.), cert. den=d, 522 U.S. 917 (1997). When evidence is sent to a laboratory for analysis, the proponent must introduce testimony showing that the laboratory handled the evidence in the same way to conclusively establish the chain of custody. See Medellin v. State, 617 S.W.2d 229, 232 (Tex.Cr.App.1981). When the State completes the chain of custody from the initial collection of the evidence to inside the laboratory, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight of the evidence, not its admissibility. See Medellin v. State, supra at 232; Silva v. State, 989 S.W.2d 64, 68 (Tex.App. - San Antonio 1998, no pet=n). Lieutenant Valenzuela testified that he transported the substance which he purchased from appellant to the DPS office after the transaction occurred on August 28, 1999. After weighing the substance, he placed it in a sealed envelope. He also labeled the envelope with a unique case number and placed his initials on the envelope. He then placed the envelope in his evidence closet. Lieutenant Valenzuela testified that the only persons with access to his evidence closet were himself and his supervisor, Lieutenant Robert E. Ralls. Lieutenant Valenzuela took the evidence to the DPS laboratory in Midland on August 30, 1999. He testified that the envelope containing the evidence remained sealed in the same manner in which he placed it into his evidence closet. Hambrick testified that the laboratory received the testing sample on August 30, 1999, from Lieutenant Valenzuela and that the envelope containing the sample remained sealed upon its receipt. Hambrick initially testified that he received the testing sample from Lieutenant Valenzuela. Hambrick indicated on cross-examination that Pat Elkin, an evidence technician, received the testing sample from Lieutenant Valenzuela. He further testified that Elkin placed the testing sample into the laboratory=s vault. The vault was accessible only to Hambrick, his supervisor, and the evidence technician. Hambrick removed the sample from the vault for testing on September 13, 1999. He stated that the testing sample was in a sealed condition when he removed it from the vault for testing and that it did not appear to have been opened. The sample remained at the laboratory until Lieutenant Valenzuela picked it up for trial. Appellant contends that the State failed to sufficiently establish the chain of custody because Elkin did not testify about her role in processing the evidence upon receiving it from Lieutenant Valenzuela. We disagree. The testimony from Lieutenant Valenzuela and Hambrick established the beginning and the end of the custody chain. Furthermore, Hambrick testified that the envelope containing the evidence was sealed at the time he retrieved it for testing. The trial court did not abuse its discretion in admitting the testing sample and the report generated from the testing. Appellant=s complaints about gaps in the custody chain are matters pertaining to the weight, rather than the admissibility, of the evidence. Appellant=s second issue is overruled. Appellant asserts in his third issue that the trial court erred in failing to include a definition of reasonable doubt in the court=s charge to the jury. In Geesa v. State, 820 S.W.2d 154 (Tex.Cr. App.1991), the Texas Court of Criminal Appeals adopted a definitional instruction for Areasonable doubt@ and required that the instruction be submitted to the jury in all criminal cases. See Colbert v. State, 108 S.W.3d 316, 318 (Tex.Cr.App.2003). The court subsequently overruled Geesa=s requirement for the trial court to instruct the jury on the definition of reasonable doubt in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000). The court concluded in Paulson that the Geesa definition was confusing and logically flawed. Paulson v. State, supra at 573. Appellant acknowledges that the holding in Paulson is the controlling authority with respect to his contention. He urges that this court decline to follow Paulson because it purportedly places the exercise of a constitutionally-mandated protection in the hands of the prosecutor.[3] As noted in Paulson, the United States Supreme Court determined in Victor v. Nebraska, 511 U.S. 1, 5 (1994), that the United States Constitution does not require trial courts to instruct the jury regarding the meaning of reasonable doubt as a matter of course. Paulson v. State, supra at 573. Accordingly, we will follow Paulson. Appellant=s third issue is overruled. Appellant=s fourth issue challenges the trial court=s admission of two Apen packets@ containing records of two prior felony convictions which the State alleged for enhancement purposes. At the outset of the punishment phase, the State offered the pen packets into evidence as self-authenticated documents. The first pen packet, State=s Exhibit No. 6, contained documents pertaining to a 1994 conviction for tampering with governmental records arising from Cause No. B-23,326 in the 161st District Court of Ector County. The second pen packet, State=s Exhibit No. 7, contained documents pertaining to a 1989 conviction for third degree theft of property arising from Cause No. W-CRB-15,404 in the 238th District Court of Midland County. Both of the pen packets contained photographs of the individual convicted for the respective offenses. The pen packets were accompanied by documents certifying them as official records of the Texas Department of Criminal Justice - Institutional Division. Appellant objected to the admission of State=s Exhibits Nos. 6 and 7 on the basis that the State failed to establish that appellant was the same individual convicted for the offenses set out in the exhibits. Appellant additionally objected to the admission of State=s Exhibit No. 7 on the ground that it did not contain a copy of an indictment for the offense. Appellant argues on appeal that State=s Exhibits Nos. 6 and 7 were inadmissible without accompanying testimony establishing that he was the same person that committed the offenses. Appellant further complains about the lack of testimony establishing that the photographs contained within the pen packets were fair and accurate depictions of appellant. Lastly, appellant contends that the State did not establish that the records were admissible as Abusiness records.@ See TEX.R.EVID. 803(6). As noted previously, a court may admit evidence of prior criminal convictions during the punishment phase of a trial. Article 37.07, section 3(a)(1). Certified copies of a judgment and sentence are admissible as self-authenticated public records. See TEX.R.EVID. 901(b)(7) and 902(1) & (4). However, these documents alone are insufficient to prove a prior conviction. Beck v. State, 719 S.W.2d 205, 210 (Tex.Cr.App.1986). The State must present independent evidence that the defendant is the same person as named in the previous conviction. Beck v. State, supra at 210. Photographs made available to the fact finder for comparison with the accused can provide the independent evidence necessary to prove the accused was previously convicted. Williams v. State, 946 S.W.2d 886, 895 (Tex.App. - Waco 1997, no pet=n). In this case, the pen packets contained photographs of the person previously convicted. The fact finder could compare appellant=s in-court appearance with the photographs. Therefore, the trial court did not abuse its discretion in admitting the pen packets without additional evidence. We also reject appellant=s contention that State=s Exhibit No. 7 was improperly admitted because it did not contain an indictment. The judgment and sentence in State=s Exhibit No. 7 indicate that the defendant was charged by information rather than by indictment. See TEX. CODE CRIM. PRO. ANN. art. 1.141 (Vernon 2005)(permitting an accused to waive being charged by an indictment). State=s Exhibit No. 7 contains a copy of the information which served as the charging instrument. Moreover, State=s Exhibit No. 7 contains a copy of the judgment and sentence for the prior conviction. These documents are the critical documents which make a pen packet admissible as evidence of a final conviction. See Langston v. State, 776 S.W.2d 586, 587-88 (Tex.Cr.App.1989) Lastly, State=s Exhibits Nos. 6 and 7 were not dependent on the business records exception for their admissibility. See Rule 803(6). The public records exception of the hearsay rule applied to the documents. See TEX.R.EVID. 803(8). Furthermore, the certification of the documents as copies of official public records made them admissible without additional testimony. See Rule 902(4). Appellant=s fourth issue is overruled. Appellant=s fifth issue addresses the admission of State=s Exhibits Nos. 8, 9, and 10 during the punishment phase. State=s Exhibit No. 8 consisted of a pen packet detailing a 1981 conviction for attempted aggravated kidnapping with intent to inflict body injury arising out of Cause No. CRB-8498 in the 142nd District Court of Midland County. State=s Exhibit No. 8 does not contain photographs of the person convicted. However, it contains a document identifying the person convicted as AAlfredo Castillon Lopez@ with a date and place of birth of February 26, 1953, in Martin County. State=s Exhibit No. 8 also contains documents ordering the commitment of AAlfredo Castillon Lopez@ for a 1978 conviction for the offense of aggravated assault arising from Cause No. 6,957 in the 142nd District Court of Midland County. The order of commitment was accompanied by an order revoking probation in Cause No. 6,957. State=s Exhibit No. 8 indicates that AAlfredo Castillon Lopez@ was confined to serve the sentence imposed in Cause No. 6,957 at the same time as the sentence imposed in Cause No. CRB-8498. State=s Exhibit No. 9 consists of an arrest record for AAlfredo Castillon Lopez@ arising from an arrest occurring on October 23, 1978.[4] State=s Exhibit No. 9 lists the date and place of birth for AAlfredo Castillon Lopez@ as February 26, 1953, in Stanton.[5] State=s Exhibit No. 10 consisted of two photographs taken of an individual. Margaret Dutchover, the chief custodian of records for the Midland County Sheriff=s Office, described State=s Exhibit No. 9 as a booking sheet prepared in connection with the arrest of AAlfredo Castillon Lopez@ on October 23, 1978. She described State=s Exhibit No. 10 as booking photographs taken of him at the time of his arrest on October 23, 1978. The State offered State=s Exhibits Nos. 9 and 10 in an effort to provide information identifying appellant as the person ordered to be confined in Exhibit No. 8. Specifically, the State relies on the same date and place of birth being listed in State=s Exhibits Nos. 8 and 9. The State relies upon State=s Exhibit No. 10 to identify appellant as the same person that is the subject of State=s Exhibits Nos. 8 and 9. Appellant asserts that the trial court erred in admitting State=s Exhibit No. 8 because the State failed to prove that it was a business record. As was the case with State=s Exhibits Nos. 6 and 7, State=s Exhibit No. 8 was a pen packet accompanied by a document certifying it as an official record of the Texas Department of Criminal Justice - Institutional Division. Accordingly, State=s Exhibit No. 8 was not dependent on the business records exception for its admissibility. See Rule 803(6). The public records exception of the hearsay rule applied to the documents. See Rule 803(8). Fur-thermore, the certification of the documents as copies of official public records made them admissible without additional testimony. See Rule 902(4). The State sought the admission of State=s Exhibits Nos. 9 and 10 on the basis that they constituted business records. Appellant contends that the State=s evidence pertaining to the business records exception was deficient. We disagree. Dutchover testified that the arrest record and booking photograph were documents required to be kept in the normal course of business. She further testified that they were prepared at the time the individual was booked into jail by someone who had direct knowledge of the data contained therein. Based upon Dutchover=s testimony, the trial court did not abuse its discretion in determining that the State satisfied the requirements of the business records exception of the hearsay rule. See Rule 803(6). Appellant also contends that the State failed to establish the authenticity of the photographs contained in State=s Exhibit No. 10. Dutchover testified that the photographs accurately depicted the person arrested based upon her comparison of the photographs to the negatives in her file.[6] Appellant contends that Dutchover lacked sufficient expertise to offer her lay opinion regarding this comparison. We disagree with this assertion. A photograph may be authenticated by the testimony of any witness who has personal knowledge that the particular item accurately represents the scene or event it purports to portray. Drone v. State, 906 S.W.2d 608, 611 (Tex.App. - Austin 1995, pet=n ref=d). Additionally, Dutchover=s testimony was admissible as opinion evidence from a lay witness under TEX.R.EVID. 701 because it was rationally based on the perception of the witness and it was helpful to the determination of a fact in issue. Although the evidence is attenuated, State=s Exhibits Nos. 8, 9, and 10 provided the trial court with information with which it could have identified appellant as the person confined for the offenses set out in State=s Exhibit No. 8. The trial court did not abuse its discretion in admitting these matters into evidence. Appellant=s fifth issue is overruled. Appellant=s sixth issue addresses the admission of testimony from Officer Seth Herman of the Midland Police Department. Herman testified that he purchased less than a gram of heroin from appellant on August 30, 1999, in a separate transaction. Appellant objected to the admission of this testimony on the grounds that it was not relevant and that its admission violated TEX.R.EVID. 403. Article 37.07, section 3(a) provides that, during the punishment phase, the State may offer evidence: [A]s to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. The admissibility of evidence at the punishment phase of a noncapital felony offense is a function of policy rather than relevancy. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Cr.App.1999); Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Cr.App.1990). Accordingly, the Texas Court of Criminal Appeals has observed that, in determining what is relevant to sentencing, the important question is Awhat is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.@ Rogers v. State, supra at 265. The express language of Article 37.07, section 3(a)(1) establishes that the conduct described by Officer Herman was relevant to the assessment of appellant=s punishment. Punishment phase evidence that the trial court deems relevant is still subject to a Rule 403 analysis. See Rogers v. State, supra at 266-67. Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. As noted in Rogers, relevant evidence is only inadmissible under Rule 403 to the extent that its degree of unfair prejudice substantially outweighs the probative value of the evidence. Rogers v. State, supra at 266 (emphasis in original). AUnfair prejudice@ refers to Aan undue tendency to suggest [a] decision on an improper basis.@ Rogers v. State, supra at 266. Given the similarity of the conduct between the charged offense and that described by Officer Herman, we do not find that the trial court abused its discretion in admitting the evidence. Appellant=s sixth issue is overruled. Appellant=s seventh issue addresses the admission of evidence regarding the testing of the substance which Officer Herman purchased from him. Appellant presents numerous complaints in his seventh issue. He challenges the qualifications of the chemist who testified about the testing of the substance. He also challenges the chain of custody evidence for the testing sample. Appellant also attacks the testifying chemist=s reliance on another chemist=s work. Finally, he argues that the State failed to establish that the report generated from the test constituted a business record. Officer Herman testified that, after purchasing the substance from appellant, he returned to the Midland Police Department whereupon he weighed the substance, sealed it in an evidence bag, labeled it with a unique case number, and secured it in a narcotics vault. Officer Herman subsequently transported the evidence to the evidence room of the Midland Police Department where he logged it into evidence. Bob Lee Wheeler, the supervisor of the DPS crime laboratory in Midland, testified about the testing performed on the substance which Officer Herman purchased from appellant. In addition to serving as the supervisor of the laboratory, Wheeler is both a criminalist and chemist. He possesses a bachelor=s of science degree in chemistry from Texas A&I University in Kingsville and a Ph.D. in analytical chemistry from the University of Texas in Austin. Wheeler testified that he has been trained in the analysis of suspected controlled substances and that, as of the time of trial, he had nine years of experience with the DPS. Wheeler testified that a testing sample brought to the DPS laboratory for testing is assigned a unique case number. He testified that the envelope containing the substance which Officer Herman purchased from appellant was sealed at the time it was delivered to the laboratory for testing. Wheeler testified that a preliminary color test and two instrument tests were performed on the testing sample which included UV absorption spectroscopy and gas chromatography mass spectroscopy. Wheeler explained the manner in which these tests are performed and the scientific principles upon which the tests are based. Wheeler testified that Hambrick performed these tests. Wheeler=s review of Hambrick=s work did not reveal any abnormalities in the results. Wheeler further testified that Hambrick was required to prepare a report of his testing results. The laboratory maintained the report in the normal course of business. Wheeler testified that the report contains data provided by the person who actually conducted the analysis of the testing sample and that the report was prepared at or near the time of the testing. We have previously outlined the applicable law pertaining to the challenges raised by appellant in his seventh issue. Given Wheeler=s advanced training and experience, the trial court did not abuse its discretion in determining that he possessed sufficient qualifications for offering testimony about the analysis of controlled substances. Furthermore, the testimony of Officer Herman and Wheeler sufficiently established the beginning and the end of the chain of custody for the sample which was tested. As an expert, Wheeler was permitted to base his testimony on Hambrick=s analysis of the testing sample. See Ingram v. State, 124 S.W.3d 672, 677 (Tex.App. - Eastland 2003, no pet=n). Finally, Wheeler=s testimony addressed the elements necessary for establishing the admissibility of the report under the business records exception. Appellant=s seventh issue is overruled. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE June 16, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Appellant does not attack the sufficiency of the evidence supporting his conviction. [2]Under TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Pamph. Supp. 2004 - 2005), extraneous crimes may be admitted during the punishment phase of the trial if they are shown to have been committed beyond a reasonable doubt by the evidence. Accordingly, the reasonable doubt standard is relevant to a determination of the admissibility of evidence pertaining to extraneous crimes. However, the review of a trial court=s ruling under Article 37.07, section 3(a) lacks many of the procedural safeguards which ordinarily apply to a review of the sufficiency of the evidence under the reasonable doubt standard. See Malpica v. State, 108 S.W.3d 374, 378-79 (Tex.App. - Tyler 2003, no pet=n). [3]Appellant bases his argument on a statement in Paulson wherein the court stated that the inclusion of a definition of reasonable doubt would not constitute reversible error if both the State and the accused agreed to its inclusion. Paulson v. State, supra at 573. [4]It appears that State=s Exhibit No. 9 constitutes the record for the arrest of AAlfredo Castillon Lopez@ in connection with the offense for which he was convicted in Cause No. 6,957. [5]The trial court took judicial notice that Stanton is located in Martin County. [6]No evidence was offered regarding the source of State=s Exhibit No. 10. The photographs clearly depict a male either wearing or holding a sign with the following identifying information: ASheriff=s Dept. Midland Texas, 12446, [10/24/78].@ The corresponding arrest record (State=s Exhibit No. 9) lists an AID Number@ of A12,446.@