Tina Marie Cantrell, A/K/A Tina Marie Brant, A/K/A Tina Marie Hoke v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00086-CR
TINA MARIE CANTRELL, A/K/A TINA MARIE BRANT,
A/K/A TINA MARIE HOKE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR12269
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Tina Marie Cantrell, a/k/a Tina Marie Brant, a/k/a Tina Marie Hoke, appeals from her
conviction by a Hood County 1 jury of possession of a controlled substance, under one gram. The
offense was enhanced by prior convictions, and she was sentenced to eight years’ imprisonment.
On appeal, Cantrell complains because the trial court prevented her from fully cross-examining
the arresting officer. We affirm.
The evidence shows that while Texas Department of Public Safety (DPS) trooper Shane
Neal was completing a traffic stop in a gasoline station parking lot, a citizen told him that a
woman was passed out in a tan pickup truck nearby. After finishing the stop, he went to the
pickup truck to check on its occupant. He found Cantrell either sound asleep or passed out. He
knocked on the window and woke her up, but while doing so, saw a used syringe next to her leg
on the truck seat. Neal testified that Cantrell was extremely groggy and disoriented. After
getting her out of the vehicle, Neal handcuffed Cantrell, and while doing so, he also saw what he
believed to be a recent injection track on her left arm. He testified that Cantrell told him at the
time that she had not shot up for four or five days. On cross-examination, Neal acknowledged
that it would be unusual for someone who had recently taken intravenous methamphetamine to
be asleep or lethargic, although he also pointed out that he was not familiar with the reaction
cycle to the use of the drug.
1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
The syringe was sent to the DPS laboratory for testing, and the chemist testified that it
contained residue of methamphetamine.
Cantrell contends that the trial court erred by limiting her cross-examination of the
arresting officer. Our initial review is to see if this contention was preserved for appellate
review. To preserve error, the record must show that the appellant made a timely request,
objection, or motion and that the trial court ruled on it. TEX. R. APP. P. 33.1(a)(1); Garza v.
State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004).
During cross-examination, counsel asked to approach the bench for an off-the-record
discussion. Cantrell points to this location in the record to support her contention that the trial
court restricted the scope of cross-examination. The record does not show such a restriction. 2
2
The following occurred during the cross-examination of Neal:
Q. [By Defense Counsel] Who is Randall Wilson?
A. He -- he is a trooper in my office.
Q. Was he there that evening?
A. No, sir.
Q. When Ms. Cantrell got indicted, who was the State’s witness?
A. What do you mean, who --
[By the State]: Objection, relevance.
THE COURT: Overruled.
Q. [By Defense Counsel] Who was the State’s witness when Ms. Cantrell
got indicted?
A. What do you mean, who presented the case to the grand jury?
Q. Right
3
Neither an objection, nor a ruling, nor a discussion of any restriction on cross-examination is in
the record. We are bound by Rule 33.1 of the Texas Rules of Appellate Procedure to conclude
that the issue now brought before us has not been preserved for appellate review. See TEX. R.
APP. P. 33.1. We cannot review contentions that depend on factual assertions outside the record.
Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). Mere assertions in a brief
unsupported by evidence in the record will not be considered on appeal. Janecka v. State, 937
S.W.2d 456, 476 (Tex. Crim. App. 1996).
After the State rested its case, Cantrell attempted to offer proof of “what the facts
would’ve shown.” 3 Cantrell did not identify the witness or witnesses that she expected to
A. I’m -- I’m not sure.
[By Defense Counsel]: May I approach the witness?
THE COURT: You may.
Q. [By Defense Counsel] Have you ever --
[By the State]: May we approach, Your Honor?
THE COURT: Yes, you may.
(Off-the-record discussion at bench)
Q. [By Defense Counsel] Do you recall signing a petition for destruction of the
marijuana?
[By the State]: Objection, relevance.
THE COURT: Sustained.
[By Defense Counsel]: Pass the witness.
3
Defense counsel’s offer of proof follows:
[Defense counsel]: Well, basically the facts of the case are that there was an empty
syringe that nobody could have seen the contents of it, and the -- the behavior was inconsistent
with methamphetamine use. And a non-witness to the incident took it to a grand jury on
4
present such testimony. More importantly, since there was no ruling by the trial court excluding
the proposed evidence, nothing is preserved for our review.
Finally, even if the evidence had been erroneously excluded and preserved for appellate
review, no reversible error would exist. The proposed evidence, as summarized by counsel, was
(1) that Cantrell’s actions were inconsistent with having recently ingested methamphetamine
(2) that a non-witness “took it to the grand jury” and (3) that the laboratory report, identifying the
substance as methamphetamine, was not prepared until November. The remaining portion of the
offer of proof was counsel’s argument as to the relevance of the evidence.
Much of this evidence was already before the jury, making Cantrell’s offer with respect
to that evidence cumulative. Neal agreed that methamphetamine is a stimulant that when
introduced into the human body, increases heart rate, blood pressure, and respiration rate.
Further, methamphetamine use typically results in increased attentiveness, activity, wakefulness,
and talkativeness as well as decreased fatigue. Neal acknowledged these effects of
methamphetamine were inconsistent with a person falling asleep or passing out.
September 5th and got her indicted. There had never been a lab report of any kind, and then, later
on, in November, there was finally a lab report that said methamphetamine.
Our position is that part of the reasonable doubt in this case is that it becomes a self-
fulfilling prophecy at that point, you know, by the people involved, the DA’s office, the lab, and
so forth, that if you’ve indicted somebody on methamphetamine and you’ve never had any lab
report, well, then, by golly, you’ve got to have a lab report at some point to confirm what you’ve
just done in the grand jury. So that’s where we were going with that, and that’s what we were
hoping to put on to the record.
THE COURT: All right. That will be received as a offer of proof for consideration of
the record.
5
Neal indicated that he did not know who testified before the grand jury. Cantrell neither
identified nor offered any evidence regarding the presentation of this case to the grand jury by a
“non-witness” or the relevance of such evidence.
Finally, the chemist, Raymond Waller, testified that the syringe at issue was analyzed in
September 2012 by a chemist who had subsequently retired. Consequently, Waller analyzed the
syringe a second time in February 2013. Therefore, even if this issue was properly before us, we
would determine beyond a reasonable doubt that the alleged error did not contribute to the
conviction or punishment. See TEX. R. APP. P. 44.2(a).
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: September 24, 2013
Date Decided: October 10, 2013
Do Not Publish
6