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...

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"