Samuel Herschel Clauder v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00420-CR
___________________________
SAMUEL HERSCHEL CLAUDER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. 57,648-B
Before Pittman, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
This is an appeal of the trial court’s judgment adjudicating Samuel Herschel
Clauder guilty of possession of marijuana. After revoking his community supervision
and adjudicating his guilt, the trial court sentenced Clauder to two years’ confinement
and imposed a fine of $10,000. Clauder complains that the trial court erred by
adjudicating his guilt on the basis of urinalysis evidence that did not satisfy the
requirements of Texas Rule of Evidence 702. Because Clauder has failed to preserve
his complaint for our review, we affirm the trial court’s judgment.
Procedural Background
Clauder pleaded guilty to the offense of possession of marijuana in an amount
of 2,000 pounds or less but more than 50 pounds. The trial court deferred
adjudicating his guilt and placed Clauder on community supervision for a period of
ten years.
The trial court imposed various conditions of community supervision. One
condition required that Clauder abstain from the use or possession of marijuana and
provide urine samples as requested to be tested for the presence of marijuana.
Alleging that Clauder had subsequently submitted a urine sample that tested positive
for THC, the State moved to revoke Clauder’s community supervision and sought
adjudication of his guilt.
During the hearings on its motion, the State offered evidence that Clauder had
been administered and failed a drug test on April 20, 2017, while he was on
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community supervision. Clauder’s community-supervision officer, Michelle Green,
testified that Clauder had reported to her on April 25, 2017. During their meeting,
Clauder admitted to Green that he had smoked marijuana. Green also saw Clauder
sign a drug history form wherein he admitted to smoking marijuana on April 18, 2017,
in Salem, Oregon.1 Later under cross-examination, Green referenced the fact that
Clauder had failed a urinalysis test administered on April 20, 2017.
The trial court admitted into evidence a recording that identified Clauder by
name as a guest speaker on the “Marijuana Compassion Common Sense” radio show.
During that show, Clauder affirmatively stated that he had informed his community-
supervision officer that he had smoked cannabis and would fail a drug test and that he
had then failed a drug test on April 20, 2017. The State did not offer into evidence a
written report regarding Clauder’s urinalysis test or testimony from any person who
obtained or tested the sample Clauder provided.
Point for Review
In his sole point, Clauder complains that the trial court erred by adjudicating
his guilt because in seeking to admit evidence of Clauder’s urinalysis result, the State
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Clauder had previously shown another community-supervision officer, Laurel
Lambert, a validly issued, but expired, medical-marijuana card. Lambert testified that
even if Clauder had permission to travel, the terms and conditions of his Texas
community supervision barred him from smoking marijuana in any state that
otherwise permitted the smoking of marijuana. Beth Romm, the Assistant Director
of the Wichita County Probation Department, verified that a Texas probationer is
considered to be bound by the conditions imposed in Texas.
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failed to comply with Rule of Evidence 702 and the ruling in Kelly v. State, 824 S.W.2d
568, 573 (Tex. Crim. App. 1992). Rule 702 permits a witness who is qualified as an
expert by knowledge, skill, experience, training, or education to testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue. Tex. R. Evid. 702. In Kelly, the Court of Criminal Appeals determined that a
proponent of novel scientific evidence is required to prove the relevance of such
evidence by clear and convincing evidence before such evidence is admitted for the
fact-finder’s consideration, subject to a Rule 403 weighing of probative value against
prejudicial factors. See Tex. R. Evid. 403, 702; Kelly, 824 S.W.2d at 573.
The State counters that Clauder has failed to preserve this point of error for
our consideration because he did not rely on Rule 702 as the basis for his objection to
the urinalysis evidence. In the alternative, the State contends that such error, if any,
was harmless because Clauder admitted both publicly and in writing that he had
smoked marijuana on April 18, 2017, while he was on community supervision.
Preservation of Error
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). A party must object as soon as
the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1)(A); see Lackey v.
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State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing policies underlying
the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.
2002) (“We have consistently held that the failure to object in a timely and specific
manner during trial forfeits complaints about the admissibility of evidence. This is
true even though the error may concern a constitutional right of the defendant.”
(citations omitted)). Without objection, Green testified under direct examination by
the State that Clauder had admitted that he had smoked marijuana and during cross-
examination, Green acknowledged that Clauder had failed his urinalysis test. Clauder
did not raise any objection to Green’s testimony regarding his urinalysis result;
therefore, Clauder has failed to preserve his Rule 702 complaint for our review.
Harmless Error
If this issue had been preserved, it is apparent that any error in permitting
Green to testify regarding Clauder’s urinalysis test results would have been harmless.
“A criminal conviction should not be overturned for non-constitutional error if the
appellate court, after examining the record as whole, has fair assurance that the error
did not influence the [fact-finder], or had but a slight effect.” See Tex. R. App. P.
44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Moreover, the erroneous admission
of evidence is cured where the same evidence comes in elsewhere without objection.
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also Anderson v. State,
717 S.W.2d 622, 628 (Tex. Crim. App.1986) (“Inadmissible evidence can be rendered
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harmless if other evidence at trial is admitted without objection and it proves the same
fact that the inadmissible evidence sought to prove.”).
The trial court had before it a recording of Clauder admitting that he had
smoked marijuana and had failed his drug test, as well as Clauder’s written admission
that he had smoked marijuana while on probation. Green’s limited testimony
regarding Clauder’s urinalysis test result added little, if any, weight to the evidence
under the trial court’s consideration given Clauder’s own admissions that he smoked
marijuana in violation of the conditions of his community supervision. Under the
circumstances, we have a fair assurance that the challenged evidence did not influence
the fact-finder or had but slight effect. We overrule Clauder’s sole point.
Conclusion
We affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 4, 2019
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