Perry Eakles v. State ( 2001 )

NUMBER 13-00-159-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

PERRY EAKLES

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 265th District Court of Dallas County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

A jury convicted appellant, Perry Eakles, of possession with the intent to deliver cocaine. He was sentenced to twenty-five years in prison. We affirm.

On May 13, 1999, police were doing surveillance on an apartment complex. Officer Rudloff saw a person doing several drug transactions, and he saw appellant acting as a lookout and swinging a white sock in a circular motion. When appellant saw the police he ran behind the complex. Officer Mata caught him leaning into a van with the door open. Appellant was holding the sock and dropped it on Mata's command. Mata grabbed the sock from the van's floorboard. Forensic analysis showed that the sock contained 5.9 grams of cocaine.

Appellant's witness, Leroy Walls, testified that he was at the complex on the day in question selling drugs. He did not see appellant swinging a white sock. Appellant's mother testified that appellant was at her apartment watching cartoons at the time in question.

I. Factual Sufficiency

By issue one appellant challenges the factual sufficiency of the evidence to prove that he possessed the cocaine. When reviewing the factual sufficiency of the evidence we apply the test set forth in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). To establish unlawful possession of a controlled substance the State must prove beyond a reasonable doubt that the defendant exercised care, custody, control, and management over the substance, knowing it was contraband. Tex. Health & Safety Code Ann. § 481.112(f) (Vernon Supp. 2001); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). To prove knowing possession the State must present evidence that affirmatively links the defendant to the controlled substance. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

Officer Rudloff saw appellant swinging the sock. When appellant saw the police he ran behind the complex. Officer Mata saw appellant holding the sock containing the cocaine in his hand. He dropped the sock, and Mata retrieved it from the van. This evidence shows that appellant exercised care, custody, control, and management over the substance, knowing it was contraband. See Harmond, 960 S.W.2d at 406. We hold that the verdict is not so against the great weight of the evidence that it is clearly unjust. We conclude that factually sufficient evidence supports the verdict. Accordingly we overrule the first issue.

II. Punishment Phase

By issue two appellant asserts that the trial court erred in admitting the results of a drug-analysis test without authentication by the chemist who performed the test. During the punishment phase the State sought to prove that appellant had committed an extraneous offense.⁽¹⁾ Officer McDonald testified that he saw appellant standing under a stairwell and drop a clear baggie that looked like it contained cocaine. McDonald arrested him and retrieved the baggie.

The substance was tested at the Dallas County Forensic Laboratory (DCFL). The State offered State's Exhibit three, the baggie, and State's Exhibit four, the lab analysis report. The sponsoring witness for these exhibits was John Lomonte, a DCFL chemist and supervisor. The lab analysis had actually been performed and the report prepared by Tamara Howard, a chemist working under Lomonte's supervision. She did not testify. Lomonte did not see Howard perform the test; however, he reviewed all her records which showed what was done on the case. His testimony was that the records showed that the tests were done properly and that all of DCFL's procedures were followed. He testified that exhibit 4 is a true and accurate copy of the lab report generated by Howard when she tested the contraband. Lomonte signed the lab report after reviewing the records that she produced and determining that they were scientifically accurate and complete. He said that DCFL is an independent lab set up by the Dallas County Commissioners Court. The lab is not part of the district attorneys office, sheriff's office, or any police agency. The lab worked on a fee-per-services basis, and anyone could use the lab. Individuals other than law enforcement personnel used the lab.

When the State offered the exhibits into evidence appellant objected on the basis of hearsay. The court overruled the objection and admitted the exhibits. Lomonte testified that the substance was cocaine weighing 1.37 grams.

Analysis

Appellant relies on Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1992) in support of his argument that the lab report is inadmissible hearsay. In Cole the State sought to introduce hearsay statements contained in lab reports prepared by a non-testifying DPS chemist. The State tendered the reports under Rule 803(8)(B), the public records exception to the hearsay rule. A supervising chemist at the same DPS lab was allowed to testify, over the accused's hearsay objection, about the tests conducted and the results of the tests shown in the reports. The Cole court determined whether the DPS chemists were considered "other law enforcement personnel" under Rule 803(8)(B), which states:

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth . . . (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel. . . .

Tex. R. Crim. Evid. 803(8)(B) (emphasis added). To resolve the issue the court used a two-prong test: (1) whether the reports were objective, routine, scientific determinations of an unambiguous factual nature prepared by officials with no inherent motivation to distort the results; and, (2) the adversarial context in which the relevant tests were conducted. Id. at 838-39. The court concluded that the DPS laboratory was "a uniquely litigious and prosecution-oriented environment," and, therefore, the DPS chemists were "other law enforcement personnel." Id. at 809-10. Thus the reports were not admissible under Rule 803(8)(B).

In Caw v. State, 851 S.W.2d 322 (Tex. App.--El Paso), pet. ref'd, 864 S.W.2d 546 (Tex. Crim. App. 1993) the State offered into evidence two drug-analysis reports prepared by the DCFL, the same lab used in the case now before us. The sponsoring witness was John Lomonte who had supervised the chemist who had performed the test on the contraband and prepared the reports at issue. This chemist did not testify. Counsel objected to the reports, arguing that they were hearsay absent sponsorship by the person who performed the tests. The trial court admitted the reports. The Caw court stated that the issue before it was whether the DCFL chemists were "law enforcement personnel" under Rule 803(8)(B), or whether they were sufficiently removed from the law enforcement process that either the public records or business records exceptions to the hearsay rule allowed admission of the evidence. The Caw court held that

the chemists employed by the Dallas County Forensic Laboratory are not "law enforcement personnel" within the meaning of Tex. R. Crim. Evid. 803(8)(B) and Cole. The lab functions independently from any law enforcement body, and its services are available to any person, public or private, corporate or individual, who wishes to pay the lab fees. The chemical analyses are routine procedures, done for whomever requests them. This status, we hold, distinguishes the lab here from the DPS lab in Cole. The Dallas County lab is not the inherently adversarial, litigious and prosecution-oriented environment characterized in Cole. It is an autonomous agency, and we hold that the results of its testing need not be viewed with the same caution reserved for law enforcement agencies.

Caw, 851 S.W.2d at 324. The court concluded that the lab reports were admissible under Rule 803(8)(B). Id.

In the instant case the State elicited essentially the same evidence as that in Caw, showing that the chemists at the DCFL were not "law enforcement personnel" for purposes of Rule 803(8)(B). Accordingly the test results sponsored by the supervising chemist, John Lomonte, who did not actually perform the tests were admissible under Rule 803(8)(B). We hold that the trial court did not err by admitting State's exhibits three and four into evidence. We overrule issue two.

III. Jurisdiction

By his third issue appellant asserts that the trial court lacked jurisdiction over this case because the case was not properly transferred to the trial court's docket. The indictment was filed in the 282nd District Court, and the case was transferred to the 265th District Court where it was tried. The record does not include an order transferring the case.

Article 4.16 of the Texas Code of Criminal Procedure states that "When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or complaint shall first be filed shall retain jurisdiction. . . ." Tex. Code Crim. Proc. Ann. art. 4.16 (Vernon 1977). The statute does not render proceedings in the second court void. Garcia v. State, 901 S.W.2d 731, 732 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd). In the instant case both the 282nd and the 265th District Courts had subject matter jurisdiction over appellant's case. Tex. Gov't Code Ann. § 26.045(a) (Vernon Supp. 2001). Generally a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred, and each order shall be entered in the records of the court in which the case is pending. Tex. Gov't Code Ann. § 74.121(a) (Vernon Supp. 2001); Garcia, 901 S.W.2d at 732. However the failure of the record to include a transfer order does not render the actions of the 265th District Court void; it merely makes them subject to a valid and timely plea to the court's jurisdiction. Garcia, 901 S.W.2d at 733-34. If a defendant does not file a timely plea to the jurisdiction he waives any chance to complain that a transfer order does not appear in the record. Daniels v. State, 352 S.W.2d 267, 268 (Tex. Crim. App. 1961); Garcia, 901 S.W.2d 733. Because appellant did not file a plea to the jurisdiction he waived any chance to complain that a transfer order does not appear in the record. Id. We overrule the third issue.

We AFFIRM the judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 19th day of April, 2001.

1. Article 37.07, § 3(a) of the Code of Criminal Procedure provides that evidence may be offered by the State about any matter the court deems relevant to sentencing, including 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. Tex. Code Crim. Proc. Ann. § 3(a) (Vernon Supp. 2001).