Interoffice Memorandum of Law Case: Joe Lee

Interoffice Memorandum of Law

Case: Joe Lee Simmons, Appellant v. State of Texas, Appellee

Docket number: 01-07-00543-CR

Office file number

Re: Issue [1] was there evidence of possession of cocaine weighing four or more grams but less than 200 grams given the evidentiary requirements of TEX. CODE CRIM. PROC. § 38.35(d)(1); [2] the validity of a motion to suppress based on the officer's failure to report all offenses committed in his jurisdiction to the magistrate, as required by TEX. CODE CRIM. PROC. § 2.13(b)(3); and [3] the sufficiency of an indictment under TEX. CODE CRIM. PROC. § 28.10.

Facts:

The appellant contends that the trial court erred in admitting the testimony of the State's forensic chemist, who performed a chemical analysis on the controlled substance found in appellant's shirt pocket, because the chemical analysis was not accredited at the time of the analysis; appellant challenges the trial court's denial of his motion to suppress because the State did not show that the arresting officer gave notice to some magistrate of all offenses committed within the officer's jurisdiction as required by TEX. CODE CRIM. PROC. § 2.13(b)(3); and appellant contends that the indictment was insufficient because it contained an amendment, but was not amended in accordance with TEX. CODE CRIM. PROC. § 28.10.

Analysis:

1) It is not sufficient to prove that a defendant had a controlled substance in order to establish possession.

"To prove unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the contraband, (2) was conscious of his connection with it, and (3) knew what it was."

Reference:

53 TEX. JUR. 3d § 95 Generally; "Possession" Defined (2011-2012).

A forensic analysis of physical evidence and the supporting expert testimony are inadmissible if, when the testing was done, the facility was not duly accredited.

TEX. CODE CRIM. PROC. § 38.35(d)(1) provides that: "Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the director under Section 411.0205, Government Code."

Reference:

TEX. CODE CRIM. PROC. § 38.5(d)(1) (West 2009).

To preserve error, an objection on appeal has to match the objection made at trial, or if the specific grounds of the objection were apparent from the context of the objection.

Reference:

Guevara v. State, 97 S.W. 3d 579, 583 (Tex. Crim. App. 2003)

TEX. R. APP. R. 33.1(a) (West 2009).

TEX. R. EVID. 103(a)(1) (West 2009).

The State has the burden of establishing that the substance in question was a controlled substance; it is not sufficient for a defendant to believe it was a controlled substance.

The State cannot use testimony from an unaccredited laboratory or by a chemist working at an unaccredited laboratory to establish that a substance is a controlled substance.

The defendant objected to admission of this testimony at trial, but did so based on a broken chain of custody, rather than under TEX. CODE CRIM. PROC. § 38.5(d)(1).

Conclusion:

Although the criminal laboratory evidence that the substance in question was cocaine should not have been admissible at trial, the failure to properly preserve that issue removes it from consideration upon appeal.

2) A defendant can make a motion to suppress based on an officer's failure to comply with the duties defined for him under the Texas Code of Criminal Procedure.

An officer is required to report to a magistrate all offenses committed within that officer's jurisdiction.

"The officer shall:(3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law"

References:

TEX. CODE CRIM. PROC.§ 2.13(b)(3) (West 2009).

A motion to suppress is nothing more than a specialized objection to the admissibility of evidence. As such, a party must include the specific grounds for the motion to suppress at trial in order to preserve it for review on appeal.

References:

Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981).

TEX. R. APP. P. 33.1(a)(1) (West 2009).

-Defendant contends that the State did not show that the arresting officer had complied with 2.13(b)(3), which would give rise to questions about the reasonableness of his suspicion to stop and detain the defendant for littering.

-Appellant failed to raise the argument at trial, but raised it for the first time on appeal.

Conclusion:

Although the State did not demonstrate that the officer complied with TEX. CODE CRIM. PROC. § 2.13(b)(3), which may have made his stop and detention of defendant unreasonable, the defendant failed to preserve this issue at trial, rendering him unable to question it upon appeal.

3) An amended indictment is insufficient if it not amended in accordance with TEX. CODE CRIM. PROC. § 28.10.

TEX. CODE CRIM. PROC. § 28.10 provides that: "a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced."

Reference:

TEX. CODE CRIM. PROC. § 28.10 (West 2009).

Double jeopardy is inapplicable if a conviction is overruled on the basis of an insufficient indictment.

"The defense of former jeopardy is not available where the allegations of the indictment were not sufficient to confer jurisdiction on the court trying the prior cause. In other words, double jeoapardy does not prevent a new trial where the defendant has been convicted based on a defective indictment or where the state has failed to present an information or indictment" (TEX. JUR. 3d § 23).

Reference:

TEX. JUR. 3d § 23 Sufficiency of Indictment (2006).

It is the appellant's responsibility to show error on appeal, and if the record fails to show error, then it should be assumed that the trial court acted correctly.

"It is generally presumed on appeal that the court ruled correctly and that the appellant must show error" (Hall v. State, 829 S.W. 2d 407, 410-411).

"It is appellant's burden to not only preserve the alleged error for review, but to present a record of the alleged error sufficient for us to review it and determine if it was error and if so whether the defendant was harmed" (Montoya v. State, 43 S.W.3d 568, 572).