Billy Jay Burris v. State ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00039-CR
BILLY JAY BURRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 24635
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Billy Jay Burris and two others with him were found in possession of a total of 7.2 grams
of pseudoephedrine. As a result, Burris stands convicted by a Lamar County jury of conspiracy
to manufacture methamphetamine in a quantity between one and four grams. 1 We affirm the
trial court’s judgment, because (1) no Batson 2 error has been demonstrated, (2) admitting the
report of Burris’ pseudoephedrine purchases was proper, (3) sufficient evidence established the
quantity of methamphetamine to be manufactured, and (4) Burris’ complaint about being
committed to SAFP was not preserved.
(1) No Batson Error Has Been Demonstrated
Burris claims the trial court erred in overruling his Batson challenges to the State’s use of
peremptory strikes on four veniremembers. Burris also complains about a fifth veniremember
who was not struck; but Burris still claims the treatment of this veniremember is a Batson
violation.
In Batson, the United States Supreme Court provided a three-step process for trial courts
to use in adjudicating a claim that a peremptory challenge is based on racial discrimination.
Batson, 476 U.S. at 96–98; see also Snyder v. Louisiana, 552 U.S. 472, 476–78 (2008); Miller-El
v. Cockrell, 537 U.S. 322, 328–29 (2003); Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim.
App. 2008). First, a defendant must make a prima facie showing that the peremptory challenge
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010); TEX. PENAL CODE ANN. § 15.02 (West 2011).
Burris was sentenced to five years’ confinement, probated.
2
The use of a peremptory challenge to strike a potential juror because of race violates the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89 (1986). It also
violates Texas law. See TEX. CODE CRIM. PROC. ANN. art. 35.261 (West 2006).
2
has been exercised on the basis of racial discrimination. Cockrell, 537 U.S. at 328–29. Second,
if the prima facie showing has been made, the State must offer a race-neutral explanation for the
strike. Id. Third, the trial court must decide whether the defendant has shown purposeful racial
discrimination. Id.; Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010).
‘“Pretext’ is solely a question of fact; there is no issue of law.” See Gibson v. State, 144
S.W.3d 530, 534 (Tex. Crim. App. 2004). On appeal, a trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly erroneous. Snyder, 552 U.S. at 477–
78; Watkins, 245 S.W.3d at 448. The “critical question” in determining whether the opponent of
a strike has proved “purposeful discrimination” is “the persuasiveness of the prosecutor’s
justification for his peremptory strike.” Cockrell, 537 U.S. at 338–39. The State must “stand or
fall on the plausibility of [its] reasons” for striking a juror. Miller-El v. Dretke, 545 U.S. 231,
252 (2005). The State’s proffer of a “pretextual explanation naturally gives rise to an inference
of discriminatory intent.” Snyder, 552 U.S. at 485. “[W]hen the State’s explanation for striking
a juror is clearly contrary to the evidence, . . . there is no innocent mistake,” and the case must be
reversed under Batson. Greer v. State, 310 S.W.3d 11, 16 (Tex. App.—Dallas 2009, no pet.).
Once a prosecutor gives a racially neutral explanation that supports adequately and
legally a judgment in the State’s favor, a fact issue arises which the trial court can resolve only
by its assessment of evidentiary weight and credibility. Tompkins v. State, 774 S.W.2d 195, 202
(Tex. Crim. App. 1987). A defendant does not meet this burden just by disagreeing with the
prosecutor’s explanation for its strike. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.—Dallas,
1992, no pet.). It is ultimately the defendant’s burden to prove that the State excluded
3
veniremembers on the basis of race. Yarborough v. State, 947 S.W.2d 892, 906 (Tex. Crim.
App. 1997).
Initially we point out that, while the parties referred to juror questionnaires during
voir dire, no such cards or questionnaires are included in the record presented to this Court. It
was incumbent on Burris to request the jury information cards or questionnaires be included in
the record. See Vargas v. State, 838 S.W.2d 552, 556–57 (Tex. Crim. App. 1992). In the
absence of a complete record, we presume the trial court found facts necessary to support its
order. Gaitan v. State, 905 S.W.2d 703, 706 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).
The only record of the race of the five veniremembers of whom Burris complains is a statement
by the defense attorney that the discussed persons were “black.”
Harvey Attrell and Joseph Finch
Burris made Batson challenges to the State’s peremptory strikes of veniremember Harvey
Attrell and Joseph Finch. The State gave the following explanation for its strike of Attrell:
Your Honor, regarding Mr. Attrell, he’s an older man. We were concerned that
he was of an age group that would not really identify with and be able to
appreciate the fact that this involves methamphetamine. . . . Mr. Attrell is an
elderly person -- is older. We were concerned, not because he’s elderly, but
because he really did not respond to any of the questions about
methamphetamine[,] about intent, about conspiracy. We were concerned about
his ability to understand concepts.
Youth has been held to be a racially neutral reason for exercising a peremptory strike. Moss v.
State, 790 S.W.2d 731, 732 (Tex. App.—Houston [14th Dist.] 1990, no pet.); Rasco v. State, 739
S.W.2d 437, 439 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d, untimely filed). By
extension, lack of youth would appear to be a race-neutral reason for a peremptory strike. See
4
James v. State, No. 06-04-155-CR, 2005 Tex. App. LEXIS 9246, at *8 (Tex. App.—Texarkana
Nov. 8, 2005, no pet.) (not designated for publication) (“Age may be a legitimate neutral reason
for a peremptory challenge.”) However, the State’s explanation “must be closely examined,” lest
“an attorney [] unintentionally find reasons other than race to strike a black veniremember when
race was actually the motivating factor.” Chivers v. State, 796 S.W.2d 539, 543 (Tex. App.—
Dallas 1990, pet. ref’d). In Chivers, the State struck a veniremember because he was thirty-five
years of age, but did not explain to the trial court why the State found that age to be too young.
Additionally, the State compared the thirty-five year-old to another, white, veniremember who
had also been struck; but that second venireman was ten years younger than the contested,
African-American, juror. 3 In contrast, here, the State explained that it was “concerned about
[Mr. Attrell’s] ability to understand the concepts” and his failure to “respond to any of the
questions about methamphetamine” or conspiracy. The State gave a race-neutral explanation for
its strike of Attrell.
For Finch, the prosecutor said,
Mr. Finch, we were concerned with him for the same reasons that we were
concerned with Attrell; he showed very little inclination or ability to answer the
question about methamphetamine, about the conspiracy questions. We were
concerned about his educational level and his ability to understand the concepts. 4
3
Additionally, the State claimed it struck the African-American, thirty-five year-old because of his lack of ties to the
community; however, the older African-American veniremember had been at his current job five years, in which he
had lived in Dallas County. Conversely, the white, younger veniremember had lived in the county only one and
one-half months and had no job. Further undermining the State’s explanation, half the selected jurors were younger
than thirty-five. Chivers, 796 S.W.2d at 543.
4
Initially, regarding Finch, the prosecutor stated, “[Y]es, he is a black male but I would point out we left four black
people on the jury. We struck and [sic] equal number of men and women.” After consulting her notes, the
prosecutor gave the above quoted explanation. We offer no opinion as to whether this statement, that the State left
other African-Americans on the jury, constitutes a race-neutral explanation, because without juror questionnaires or
any other evidence in the record, it is impossible to know the make-up of the venire or final panel.
5
Education may be the basis of a racially neutral peremptory strike. Rice v. State, 746 S.W.2d
356, 357 (Tex. App.—Fort Worth 1988, pet. ref’d) (veniremember misspelled several words on
information card); see also Hastings v. State, 755 S.W.2d 183, 186 (Tex. App.—San Antonio
1988, pet. ref’d) (veniremember misspelled word and wrote date of birth in wrong space on
information card). The State gave a race-neutral reason for its strike of Finch.
The burden shifted to Burris to rebut the State’s race-neutral explanation on both Attrell
and Finch. Burris’ attorney said to the trial court,
I was looking at the jurors. I certainly didn’t see any problems with Mr. Attrell or
Mr. Finch and their ability to understand the questions. In fact, they were
engaged in answering questions and answered the questions that were put to them.
. . . As far as Mr. Attrell and the question about, well, because of his age -- age is
also a cognizable group and is subject to a Batson challenge.
Burris did not cross-examine the prosecutor or offer any testimony or evidence to rebut
the State’s explanation of its strike of Attrell or Finch. Cf. Satterwhite v. State, 858 S.W.2d 412,
424 (Tex. Crim. App. 1993) (defendant failed to rebut State’s reason where did not cross-
examine prosecutor and offered no evidence to rebut State’s race-neutral reasons for strike). As
for Burris’ claim that Attrell was “engaged in answering questions and answered the questions”
put to him, our reading of voir dire reveals no instances where Attrell was directly questioned or
made answers. The trial court was best positioned to evaluate the credibility of the prosecutor, as
well as to observe any behaviors by Attrell and the rest of the venire. Burris did not rebut the
State’s explanation for its strike of Attrell.
On one occasion, Finch was directly questioned by Burris, who asked Finch why, in
some circumstances, police may be required to record a suspect’s statement. Finch answered,
6
“For evidence.” 5 It is true that the State did not question Finch or develop any record as to his
education or intelligence level—and, again, the juror information cards are not part of the record,
so we have no way of knowing if the cards gave indications of any of the veniremembers’
education levels. But the ultimate burden to rebut the State’s race neutral reason and to prove to
the trial court that the State’s reason was a pretext to hide a racial motivation “rests with, and
never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 767–68 (1995);
Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).
Burris argues the record shows the State’s disparate treatment of Finch versus another
veniremember. After Finch said a statement might be recorded to be used as evidence, Burris
asked another veniremember, identified as Zimmerman, why such a recording requirement might
exist. Dr. Zimmerman replied, “For accuracy.” Burris argues that, because Zimmeran made it to
the jury, but Finch was struck, despite their giving similar answers to the question about
recording statements, this reveals a pretextual basis for the State’s peremptory strike. But part of
the State’s stated reason for striking Finch was concern “about his educational level and his
ability to understand the concepts” at issue in the case. Zimmerman said during voir dire that he
specialized in pulmonary and critical care medicine, and he was addressed as doctor throughout
the jury selection. Burris did not rebut the State’s reasons for striking Finch.
5
We find only one other moment where Finch appears to have been addressed directly. While the State’s attorney
was explaining the law of conspiracy, she asked the venire what kind of act – a legal or illegal action – she should be
required to commit in order to be subject to prosecution and punishment. The prosecutor then said, “You’re making
a face, Mr. Finch. Are you kind of -- are you thinking about that? Does something about that statement bother
you?” Mr. Finch answered, “No.”
7
Natasha Frieson
Burris claims error where the State struck Natasha Frieson. The State answered Burris’
Batson challenge as follows:
Mrs. Frieson appeared to be asleep during part of the questioning. She never
made eye contact with either attorney[] and she appeared to be irritated at having
to be in the room, by her facial expressions.
A veniremember falling asleep during voir dire is a race-neutral basis for exercising a
peremptory strike. See Ivatury v. State, 792 S.W.2d 845, 847–48 (Tex. App.—Dallas 1990, pet.
ref’d). The State also said Frieson appeared irritated at having to be in the courtroom. The
demeanor of a potential juror is a valid basis to exercise a peremptory strike. Yarborough v.
State, 947 S.W.2d 892, 896 (Tex. Crim. App. 1997); see also Nieto v. State, 365 S.W.3d 673,
680 (Tex. Crim. App. 2012) (State’s description of veniremember’s demeanor “considered
proved on the record” where defendant failed to rebut State’s explanation). The State’s
explanation for its strike of Frieson was race neutral.
Burris answered the State’s race-neutral explanation in this way:
As far as Mrs. Frieson being asleep, I saw Mrs. Frieson. At times she had her
eyes closed but it was only for a couple of seconds at a time. She opened them
and looked immediately back at the prosecution again while they were going
through their spiel in voir dire. Mrs. Frieson was not asleep. She was being
attentive.
Burris, though, did not offer any evidence to rebut the State’s explanation. He did not cross-
examine the prosecutor or ask Frieson to offer testimony about whether she had been asleep
during voir dire. The State claimed that Frieson appeared to sleep through part of the voir dire.
Both the prosecutor and Burris attorney could have been correct. Burris also offered nothing to
8
contradict the State’s observation that Frieson appeared “irritated at having to be in the room, by
her facial expressions.” The trial court was in a position to consider any demeanor or behavior
of the venireperson as well as the credibility of the prosecutor and her explanation. Burris has
provided nothing in the record to establish that the trial court’s ruling on the Batson challenge to
Frieson was clearly erroneous.
Emma Simmons
The State struck Emma Simmons because “she didn’t complete her questionnaire, which
we felt indicated a resistance to following the law and the instructions.” On its face, this is a
racially neutral explanation. Failure to complete a juror information card may be a race-neutral
reason to strike. See Satterwhite, 858 S.W.2d at 423; Roy v. State, 813 S.W.2d 532, 538 (Tex.
App.—Dallas 1991, pet. ref’d). An inability to follow the law, even if only surmised by the
prosecutor, would also be a race-neutral reason to strike a veniremember. See Nieto, 365 S.W.3d
at 679 (State may strike based on hunch or past experience if racial discrimination is not motive).
Burris offered no rebuttal of the State’s explanation regarding Simmons. In his appellate
brief, Burris complains that the juror questionnaires are not part of the record. Burris’ failure to
rebut the State’s explanation amounts to a failure of his burden to show purposeful
discrimination. As for the contents of the appellate record, it is the appellant’s burden to present
a record to the appellate court supporting his or her points of error. See TEX. R. APP. P. 34.5;
Ortiz v. State, 144 S.W.3d 225, 230 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
Having reviewed the record, we cannot say that Burris demonstrated that the State’s
explanations for its strikes were pretexts for racial discrimination. We give great deference to
9
the trial court’s Batson rulings, as such determinations often turn on the credibility of the
prosecutor and the veniremembers. See Yarborough, 947 S.W.2d at 896. Because the record
does not establish that any of the trial court’s rulings were clearly erroneous, we will not disturb
those rulings. See Watkins, 245 S.W.3d at 448.
Burris also raises a point of error complaining of the State’s choice not to exercise a
peremptory strike on veniremember Michael Hayes. Burris complains that, when asked why the
State did not exercise a peremptory strike against Hayes, the prosecutor told the trial court the
State had the right not to exercise all its strikes and pointed out that other African-Americans had
been seated on the jury. We agree with Burris that even a single strike based on race offends the
United States Constitution. See Turner v. State, 827 S.W.2d 333, 334 (Tex. Crim. App. 1992).
That said, Burris offers no authority or clear argument for his proposition that the State had to
offer a racially neutral explanation for not striking Hayes. 6 We cannot see how not exercising a
peremptory strike falls within the realm of Batson. We overrule this point of error.
(2) Admitting the Report of Burris’ Pseudoephedrine Purchases Was Proper
Burris also complains of the trial court’s admission of records documenting Burris’
multiple purchases of pseudoephedrine. The State filed the records along with a business records
affidavit in the trial court about six months before trial. See TEX. R. EVID. 803(6), 910(10).
Burris claims that, because the requisites of Rule 803(6) were not satisfied, the records were
6
Burris’ only argument is that, “Having made an explanation for excluding Mr. Hayes [i.e., the prosecutor’s
statement that she had a right not to exercise all her strikes, and pointing out that four members of the jury were
black], it has to be a race neutral reason.”
10
inadmissible hearsay. Burris argues, alternatively, that the records were police reports and
therefore inadmissible.
One exception to the rule against hearsay is for records or reports
made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of the custodian
or other qualified witness . . . .
TEX. R. EVID. 803(6). Such evidence may also be admitted if the above requisites are satisfied
by an appropriate affidavit. Records “shall be admissible in evidence in any court in this state on
the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7).”
TEX. R. EVID. 902(10)(a).
We review for an abuse of discretion a trial court’s decision to admit or exclude evidence.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its
discretion if the decision to admit evidence is within the “zone of reasonable disagreement.”
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not
substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003). If the trial court’s decision on the admission of evidence is supported by the
record, there is no abuse of discretion, and the trial court will not be reversed. Osbourn v. State,
92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379. We will also
sustain the trial court’s ruling if it is correct under any theory of law applicable to the case. State
v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
11
Some eight months before trial, the State filed its records of Burris’ purchases of
pseudoephedrine. The records were accompanied by an affidavit executed by James Acquisto,
who swore to be the custodian of the records for a company called Appriss, Inc.; Acquisto’s
affidavit was in the necessary format. See TEX. R. EVID. 902(10). The affidavit stated that the
attached records were kept in the regular course of business by Appriss by an employee or
representative of Appriss who had knowledge of the acts, events, conditions, opinions,
diagnostics, or results in said records and that the records were made at or near the time of the
occurrence of the events described in the records.
Burris first complains that there was no evidence the business records were made in the
course of a regularly organized business activity. This overlooks the affidavit that accompanied
the records: the affidavit and records were filed in the trial court more than fourteen days before
trial and were all admitted into evidence. The affidavit recited that the affiant was the custodian
of the attached records, that the records were kept by the company Appriss in the regular course
of business, and that the regular course of that business included an employee or representative
of the company making such records. The affidavit also said that such employee or
representative had knowledge of the events, acts, conditions, or results depicted in the records
and that the events chronicled in the records occurred at or near the time the records were made.
The affidavit is sufficient. See TEX. R. EVID. 803(6); see also TEX. R. EVID. 902(10). The
affidavit was evidence of matters contained in the records. See Barnes v. LPP Mortg., Ltd., 358
S.W.3d 301, 308 (Tex. App.—Dallas 2011, pet. denied) (affidavit accompanying business
12
records sufficient to establish amount due on note). The trial court did not abuse its discretion in
admitting the records. 7
Burris also complains that, even if the records were admissible under the business records
exception, the records were effectively police records and thus not admissible under the business
records exception. See Davenport v. State, 856 S.W.2d 578, 579 (Tex. App.—Houston [1st
Dist.] 1993, no pet.). The investigating officer, Anson Amis of the Lamar County Sheriff’s
Department, testified that the records compiled by Appriss were available only to law
enforcement. Amis said the company compiled records of purchases of pseudoephedrine, and
these records were monitored by law enforcement. Amis also said he was able to get email
notifications when specific persons bought pseudoephedrine advising him of the locations of
those sales. We disagree with Burris’ argument that this makes the records effectively law
enforcement reports. He cites Davenport and Berman. Berman v. State, 798 S.W.2d 8 (Tex.
App.—Houston [1st Dist.] 1990), pet. dism’d, improvidently granted, 817 S.W.2d 86 (Tex. Crim.
App. 1991). Davenport involved testimony by a crime laboratory chemist, who testified that
resin found on a pipe contained cocaine, but whose report was excluded. Davenport, 856
S.W.2d at 579. Berman involved documents generated at the jail from which the defendant was
7
Burris cites West v. State, 124 S.W.3d 732 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). West involved a
testifying witness, not an affidavit, and the witness failed to state that the records were kept as part of the regular
business activity of the bank supplying the records—she just said the records were kept. This was held insufficient
to meet Rule 803(6)’s requirements. Id. at 736–37. Here, the affidavit stated the records were kept in the regular
course of business.
13
accused of escaping. These cases involved documents or records generated by law enforcement
or at the behest of law enforcement in the course of an investigation. 8
In Cole, the Texas Court of Criminal Appeals held that a chemist’s report from the
Department of Public Safety (DPS) crime laboratory was not admissible under Rules 803(6) or
803(8). Cole v. State, 839 S.W.2d 798, 812–13 (Tex. Crim. App. 1992) (op. on reh’g). “A DPS
laboratory is a uniquely litigious and prosecution-oriented environment.” Id. at 809–10. The
court noted that the DPS laboratory reports bore insignia of the State of Texas and law
enforcement, suggesting the proffered records were generated in an adversarial context. In
contrast, the court cited United States v. Orozco, 590 F.2d 789, 793–94 (9th Cir. Cal. 1979),
where records compiled of license plate numbers on vehicles passing through a border station
were deemed not to have been collected in an adversarial setting, and nothing about the
collection procedure was seen as indicating a lack of trustworthiness. In the situation here, there
is no indication that the company that collected records of persons buying pseudoephedrine was
associated with law enforcement or that the records were gathered as part of any adversarial
process. The company collected records of sales and made the records available to law
enforcement. That is not the same as saying the records were those of a law enforcement
agency. We reject Burris’ claim that the records were essentially police reports. This point of
error is overruled.
8
The arrest blotter records were “statements made in an adversarial setting” and were “not merely made as a result of
ministerial objective observations.” Berman, 798 S.W.2d at 12.
14
(3) Sufficient Evidence Established the Quantity of Methamphetamine to be Manufactured
Next Burris complains that the evidence was insufficient to prove how much
methamphetamine could be manufactured from the pseudoephedrine possessed by Burris and his
two associates. The State presented testimony from Tommy Moore, a detective with the Paris
Police Department who had significant experience in narcotics investigations. Moore testified
that the 7.2 grams of pseudoephedrine bought by Burris and the two other individuals would
yield about 3.5 grams of methamphetamine. The evidence was sufficient.
Detective Moore testified that, through a company that collects information on the
purchase of pseudoephedrine, Moore became aware that Burris and co-defendants Karen and
Brandy Goodwin were making repeated purchases of pseudoephedrine. Moore had spent about
thirteen of his eighteen years on the police force working on narcotics cases and had been trained
in the procedures for making methamphetamine at the Drug Enforcement Agency’s (DEA)
training program. Suspecting that the three individuals planned to manufacture
methamphetamine, Moore began an investigation. The three suspects were found with several
boxes of pseudoephedrine, which they had purchased at various pharmacies in Paris. Moore also
found receipts documenting the purchase of drain cleaner and an instant cold compress. Moore
explained that these items, along with pseudoephedrine, were used in the manufacture of
methamphetamine.
Among them, the three alleged conspirators had 7.2 grams of pseudoephedrine. Moore
testified that he had spoken to chemists and “actual meth cooks” and that these parties had told
him that pseudoephedrine would yield about half its weight in methamphetamine.
15
I’ve talked to chemists who’ve told me what they see and I’ve talked to actual
meth cooks -- I’ve interviewed numerous meth cooks and they -- almost all of
them will tell you about the same -- what the yield is from a certain amount of
ephedrine or pseudoephedrine, what you get on your finished product . . . [is]
[a]bout half. If you have 4 grams of ephedrine, then you’re probably going to get
two grams of meth.
Moore said this was a “conservative estimate.” On November 9, 2011, Burris and the two
women with him each bought 2.4 grams of pseudoephedrine. These 7.2 grams of
pseudoephedrine would yield approximately 3.5 grams of methamphetamine. 9 Moore made this
calculation based on his experience making methamphetamine at the DEA training program and
his other training and experience in his narcotics investigations over the course of his career.
Moore’s testimony is sufficient evidence 10 that Burris and his co-conspirators conspired
to make one or more but less than four grams of methamphetamine. 11
(4) Burris’ Complaint about Being Committed to SAFP Was Not Preserved
Burris also argues that the trial court erred in ordering him to attend and complete a
Substance Abuse Felony Punishment (SAFP) 12 program incident to his community supervision.
9
In asking for his estimate, the prosecutor asked Moore to “please err on the low side.”
10
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jury’s verdict to
determine whether any rational jury could have found beyond a reasonable doubt the essential elements of
conspiracy to manufacture one or more but less than four grams of methamphetamine. Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007)). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the
responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson, 443 U.S. at 318–19).
11
The State points out that Burris objected only that Moore was not listed as an expert witness. But as this is a
challenge to the sufficiency of the evidence, the lack of such listing is irrelevant to our review.
12
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 14 (West Supp. 2013).
16
The jury assessed a sentence of five years and recommended that the sentence be suspended. As
conditions of community supervision, the trial court required Burris to spend 180 days in the
county jail and be confined in and complete a SAFP program. Because Burris made no objection
to this term of supervision, he preserved nothing for this Court to review.
A trial court may make participation in SAFP a term and condition of community
supervision if the trial court affirmatively finds that (1) drug or alcohol abuse significantly
contributed to the commission of the crime for which the defendant was convicted; and (2) the
defendant is a suitable candidate for treatment, as determined by the suitability criteria
established by the Texas Board of Criminal Justice. TEX. CODE CRIM. PROC. ANN. art. 42.12, §
14(a), (b). Burris complains that the trial court ordered him to a SAFP facility without first
ordering a substance abuse evaluation prescribed by law. See TEX. CODE CRIM. PROC. ANN. art.
42.12, § 9(h) (West Supp. 2013). Burris did not object to the trial court’s imposition of the
SAFP conditions at sentencing. Just as a presentence investigation may be waived, 13 we find
Burris waived this complaint. See Caster v. State, 87 S.W.3d 751, 752 (Tex. App.—Texarkana
2002, no pet.). Further, Burris’ brief presents no argument on this point. See TEX. R. APP.
P. 38.1(i).
Burris also presents a related no-evidence point, arguing that there was no evidence that
he had a drug or alcohol problem or that drugs or alcohol significantly contributed to the
commission of the crime for which he was convicted. Thus, reasons Burris, a SAFP program
was not appropriate. While it is true the trial court made no explicit findings on the record to
13
Eddie v. State, 100 S.W.3d 437, 445 (Tex. App.—Texarkana 2003, pet. ref’d).
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support his findings that “drug abuse did significantly contribute to the commission of the
[instant] crime” and that Burris was “a suitable candidate for treatment as determined by the
Texas Board of Criminal Justice in accordance with Section 493.009 B [sic], Texas Government
Code,” we presume the trial court made the necessary findings to support his ruling. Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Ice v. State, 914 S.W.2d 694, 695–96 (Tex.
App.—Fort Worth 1996, no pet.).
There was evidence Burris and his two co-defendants conspired to make
methamphetamine. The arresting officer said that, when asked about the amount of
pseudoephedrine the parties had been purchasing, Burris initially said he had allergy problems,
but soon thereafter said it was going to be used to make methamphetamine. At the time of their
arrest, one of the co-defendants had a pipe associated with smoking drugs and a small amount of
methamphetamine. These facts are consistent with drug abuse and support the trial court’s
finding that drug abuse significantly contributed to the commission of the offense for which
Burris was convicted. We overrule Burris’ points of error related to the SAFP program.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 4, 2013
Date Decided: February 12, 2014
Do Not Publish
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