Randy Wayne McKenzie v. State ( 2005 )

NO. 07-05-0035-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 13, 2005
______________________________
RANDY MCKENZIE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NO. 3986; HON. STEVEN R. EMMERT, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant, Randy McKenzie, appeals from an order revoking his probation. He had
previously been convicted of theft and placed on community supervision. Thereafter, the
State moved to revoke it due to his ingestion of narcotics, namely cocaine. The trial court,
after hearing, granted the motion and sentenced appellant to prison. In three issues,
appellant argues that 1) the trial court erred in admitting a drug lab report in violation of the
Confrontation Clause of the United States Constitution, 2) the trial court erred in admitting
a drug lab report in violation of the hearsay rule, and 3) the evidence is insufficient to
support the revocation. We affirm the judgment of the trial court.
Issues 1 and 2 - Admission of the Lab Report
Appellant claims that the trial court denied him his right to confront his accusers
when it admitted a laboratory report from the Redwood Toxicology Laboratory of Santa
Rosa, California. The report illustrated that he tested positive for cocaine. So too does
appellant argue that the report was hearsay and inadmissible on that ground as well. We
overrule each issue.
Regarding the confrontation argument, authority holds that one does not have such
a right in a revocation hearing. Smart v. State, 153 S.W.3d 118, 120-21 (Tex.
App.–Beaumont 2004, pet. ref’d). Since the evidence in question was offered during such
a hearing, we find appellant’s contention meritless.
As for the hearsay objection, appellant’s probation officer twice made reference
(during the hearing) to appellant having tested positive for drugs without objection. This
information obviously was based upon the report at issue. Having failed to continually
object to the use of the information in the report or secure a running objection founded
upon hearsay, appellant waived his claim. Moreover, the complaints he did utter when the
report was admitted into evidence dealt with whether the State had satisfied the
prerequisites to admitting expert testimony and whether it established the requisite chain
of custody. They did not deal with hearsay.1 Because the objection urged below differs
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The revocation hearing was originally convened on Dece m ber 3 rd. The trial court, however,
continued it until December 21 st to affo rd ap pellant opportun ity to review the repo rt. This was so because, at
the Dece m ber 3 rd pro ceeding, appellant co nte nded the rep ort wa s inadm issible hearsay due to the failure of
the State to provide him an advance copy. So, the trial court assured that appellant had a c op y of the
document and continued the hearing until December 21 st to affo rd him time to review it.
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from that made before us, the latter was not preserved for review. See Guevara v. State,
97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that the issue is waived when the
grounds for objection asserted on appeal do not comport with those raised at trial).
Issue 3 - Sufficiency of the Evidence
In his third issue, appellant claims the evidence is insufficient to support the
revocation of his community supervision. We overrule the issue.
As previously mentioned, the State moved to revoke appellant’s probation because
he violated the third condition of same. The latter required that he avoid possessing or
consuming narcotics. Thus, the State was obligated to prove this allegation by a
preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993). In determining if it did, we review the evidence in the light most favorable to the trial
court’s finding. Lopez v. State, 46 S.W.3d 476, 481-82 (Tex. App.–Fort Worth 2001, pet.
ref’d). So too must we conclude the standard was satisfied when the greater weight of the
credible evidence creates a reasonable belief that the defendant violated a condition of his
community supervision. Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.–Austin 2002,
pet. ref’d); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.–Fort Worth 2000, pet. ref’d).
The evidence of record illustrates that appellant had a positive drug test. So too
does it show that his probation officer had to test him twice because he had diluted the first
test with water, in apparent attempt to disguise the presence of the drug. This is more than
ample evidence for one to reasonably conclude that he impermissibly consumed a
narcotic. See Stevens v. State, 900 S.W.2d 348, 352 (Tex. App.–Texarkana 1995, pet.
ref’d) (finding like evidence sufficient to support revocation).
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Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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