Billy Ray Henderson v. the State of Texas ( 2021 )

Opinion filed September 2, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00320-CR
__________
BILLY RAY HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 25432
MEMORANDUM OPINION
Billy Ray Henderson, Appellant, was found guilty of the crime of possession
of a controlled substance: methamphetamine, four grams or more but less than two
hundred grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a), (d) (West 2017). Appellant entered a plea of “true” to two prior felony
convictions, and the jury assessed his punishment at confinement in the Texas
Department of Criminal Justice’s Institutional Division for ninety-nine years. See
TEX. PENAL CODE ANN. § 12.42(d) (West 2019).
In three issues on appeal, Appellant contends that (1) the trial court abused its
discretion in admitting a certificate of analysis into evidence because it was not in
substantial compliance with the requirements set forth in Article 38.41 of the Texas
Code of Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.41, § 3(2)
(West 2018); (2) the trial court abused its discretion in admitting a certificate of
analysis into evidence in violation of the Confrontation Clause of the U.S.
Constitution; and (3) the trial court abused its discretion in preventing Appellant’s
trial counsel from making a comment during closing arguments. We affirm.
Background Facts
While responding to reports of gunshots in Ranger, Texas, Officer Joshua
Nichols asked individuals in the area if they had heard any gunshots. Officer Nichols
noticed Appellant walking away from the area, called out to him, and requested that
he come back to Officer Nichols’s location so that Officer Nichols might question
Appellant about the reported gunshots. Appellant complied and told Officer Nichols
that he did not hear gunshots. As Appellant walked toward Officer Nichols, the
officer observed Appellant drop a clear baggie containing what Officer Nichols
believed to be methamphetamine. Officer Nichols then observed Appellant put the
baggie back in his pocket, asked Appellant what he had dropped, and ordered him
to remove the baggie from his pocket. Appellant pulled the baggie out and threw it
on the ground. Lab results later confirmed that the substance was methamphetamine.
Appellant was subsequently indicted and convicted of possession of
methamphetamine. This appeal followed.
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Analysis
I. Article 38.41 Compliance
In Appellant’s first issue, he contends that the trial court abused its discretion
in admitting into evidence the lab results confirming the substance to be
methamphetamine and the certificate of analysis attached thereto because the
certificate of analysis allegedly did not substantially comply with the requirements
of Article 38.41, Section 3. See CRIM. PROC. art. 38.41, § 3. Specifically, Appellant
contends on appeal that the certificate did not substantially comply with Article
38.41, section 3(2), which requires that a certificate of analysis contain “a statement
that the laboratory employing the analyst is accredited by a nationally recognized
board or association that accredits crime laboratories.” Id. § 3(2). We disagree.
At the outset, we note that Appellant failed to preserve error for appeal. “To
properly preserve an issue concerning the admission of evidence for appeal, ‘a
party’s objection must inform the trial court why or on what basis the otherwise
admissible evidence should be excluded.’” Ford v. State, 305 S.W.3d 530, 533 (Tex.
Crim. App. 2009) (quoting Cohn v. State, 849 S.W.2d 817, 821 (Tex. Crim. App.
1993) (Campbell, J., concurring)). Although no “magic words” are required, “[t]he
objection must merely be sufficiently clear to provide the trial judge and opposing
counsel an opportunity to address and, if necessary, correct the purported error.” Id.(citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)).
During trial, when the State offered the lab report and certificate of analysis
into evidence, Appellant’s trial counsel objected on the grounds that the certificate
did not comply with Section 3, subsection 4 of the statute and further objected on
the grounds that the certificate violated the Confrontation Clause. However,
Appellant’s counsel reviewed each requirement within Section 3 and decided to only
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object to subsection 4, making no mention of subsection 2 as he now contends.
Subsection 4 requires “a statement that the analyst’s duties of employment included
the analysis of physical evidence for one or more law enforcement agencies.” CRIM.
PROC. art 38.41, § 3(4). An objection on the grounds that the certificate does not
include the names of one or more law enforcement agencies does not address the
error which Appellant now purports to exist, namely, that the certificate did not
mention that the laboratory was accredited by an organization “that accredits crime
laboratories.” See id. § 3(2), (4).
In an attempt to justify his objection to this omission, Appellant asserts that
his Confrontation Clause objection “broadened his original objection to admission
of the certificate to include an assertion that the certificate was ‘non-compliant,’
though he did not say so in so many words.” We find Appellant’s argument
unconvincing. In Williams v. State, the defendant never raised issue to compliance
with the Section 3 requirements, yet he objected at trial on the grounds that the
certificate’s admission violated the Confrontation Clause. 585 S.W.3d 478 (Tex.
Crim. App. 2019). The Court of Criminal Appeals held:
The problem is that Williams never once complained that the certificate
of analysis in this case lacked one or more of the mandatory Section 3
requirements. We cannot fault the trial judge for overruling Williams’s
confrontation objection when, in response to the State’s counter-
argument that it had timely filed a certificate of analysis, Williams’s
only counter-counter-argument was that the certificate was
noncompliant because the affiant was someone other than the analyst.
Id. at 487. Even though the defendant in Williams similarly objected at trial on
Confrontation Clause grounds, the court did not “broaden” that objection to imply
an objection to the specific requirements of Section 3. Because Appellant did not
object to the specific grounds that he now raises on appeal, this issue was not
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preserved for appeal. See Ford, 305 S.W.3d at 533; see also TEX. R. APP. P.
33.1(a)(1)(A).
Regardless of whether error was preserved, the State’s certificate of analysis
at issue here plainly and fully complies with the requirements of Article 38.41,
section 3. Appellant takes issue with the fact that the certificate does not include the
words “that accredits crime laboratories” after naming the nationally recognized
board that accredited the laboratory employing the analyst. See CRIM. PROC. art.
38.41, § 3(2). Importantly, Appellant does not contend that “The ANSI-ASQ
National Accreditation Board (ANAB),” the accreditation board named in the
State’s certificate, is not a board that accredits crime laboratories. Rather, Appellant
only contends that the certificate is defective because the certificate did not expressly
state that this board is one that accredits crime labs. Importantly, subsection 2
merely requires a statement that the lab was accredited by a nationally recognized
board or association; that it “accredits crime laboratories” is merely a substantive
clarification as to what type of accreditation board or association it must be. A
determination of whether that board accredits crime labs can be easily and readily
confirmed with a minimal amount of research. Thus, we hold that it is not fatal to a
certificate should it not expressly mention that the board or association is one that
accredits crime labs. Furthermore, the State’s certificate of analysis follows
verbatim the form provided in Section 5, which itself does not include the words
“that accredits crime laboratories.” See CRIM. PROC. art. 38.41, § 5. We hold that,
at best, the certificate here fully and strictly complies with the requirements of
Article 38.41. At a minimum, the certificate substantially complies with the
requirements of the statute. See Williams, 585 S.W.3d at 484–86. Appellant’s first
issue is overruled.
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II. Confrontation Clause Objection
In Appellant’s second issue, he contends that the trial court erred in admitting
the certificate of analysis because it violates the Confrontation Clause. Under
Section 4, the offering party must give the other party a copy of the proposed
certificate of analysis “not later than the 20th day before the trial begins.” CRIM.
PROC. art. 38.41, § 4; Williams, 585 S.W. 3d at 483. Section 4 also states that a
certificate under Section 1 is not admissible if, “not later than the 10th day before
the trial begins,” the opposing party files a written objection. CRIM. PROC. art. 38.41,
§ 4; Williams, 585 S.W.3d at 483. Without a timely objection, any Confrontation
Clause objection is waived so long as the certificate substantially complies with the
requirements of Section 3. See CRIM. PROC. art. 38.41, § 4; Williams, 585 S.W.3d
at 483. Here, Appellant acknowledges that no pretrial objection was made; rather,
he raised a Confrontation Clause objection for the first time at trial. Furthermore, as
we determined above, the certificate at issue here substantially complies with the
requirements of Section 3. See CRIM. PROC. art. 38.41, §§ 3, 5. Accordingly,
Appellant waived his Confrontation Clause objection. See id.; Williams, 585 S.W.3d
at 483–87. We overrule Appellant’s second issue.
III. Jury Arguments
In his third issue, Appellant contends that the trial court denied him the right
to effective representation by not allowing his attorney to make a particular
statement during closing argument. What actually would have been argued by
Appellant’s trial counsel is not well preserved by the global offer of proof made on
the record. During closing argument, Appellant’s trial counsel mentioned to the jury
that Officer Nichols testified during trial that his patrol unit, a pickup, was not
equipped with a video camera system. When asked in a single question by the State,
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Officer Nichols denied that his vehicle was equipped with an “in-pickup recording
system.” During cross-examination by Appellant’s trial counsel, Officer Nichols
testified that his vehicle “wasn’t equipped with a vehicle cam” and that “the only
thing [he] had that night was a body cam.” During closing argument, Appellant’s
trial counsel attempted to show the jury an excerpt from a police body cam video to
point out that there was in fact a video system in the vehicle. Soon after the video
began playing, the prosecutor requested a bench conference, and the following
discussion ensued:
[PROSECUTOR]: I know where he’s going. There is no video.
That is an old one that hasn’t functioned since they put it in the car. I
believe -- I may be wrong about this, but that’s not even --
[DEFENSE COUNSEL]: I guess the jury can decide that.
THE COURT: That’s not in evidence.
[PROSECUTOR]: That’s not in evidence.
[DEFENSE COUNSEL]: The video is in evidence.
THE COURT: That’s not in evidence. Don’t go there.
[DEFENSE COUNSEL]: The video is in evidence, Your Honor.
THE COURT: I’ll hold you in contempt.
[DEFENSE COUNSEL]: I want to show the rest of the video.
Can we have a hearing outside the presence of the jury?
THE COURT: We certainly will.
The court then held a hearing outside the presence of the jury:
THE COURT: Now, before we go any further, [Defense
Counsel], if by chance the State is being dishonest, if by chance there
is a video system in that vehicle or they have in any way misled the
Court -- first of all, there would be all kinds of legal issues beyond what
we could ever get into today. I don’t believe that either of these
gentlemen would have any interest of losing their license by purporting
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to you that they have handed things over to you and at this time
wouldn’t be providing Brady material.
Now, likewise, you did not go into any of this or ask those
questions before this jury. It’s not in evidence. And for you to become
a witness at this point would be totally inappropriate. So as far as this
hearing outside the presence of the jury, you haven’t asked -- there’s
nothing before the jury other than for you to try to confuse the issue
here to try to show that -- that there is some other video system in
existence at this point.
[DEFENSE COUNSEL]: Judge, the testimony is there is no
video system. This [body cam] video was admitted into evidence.
THE COURT: Uh-huh.
[DEFENSE COUNSEL]: The video is admitted. I can argue
evidence shows and says one thing. They can argue it says another.
THE COURT: This is your opportunity to make an offer of proof.
What are you going to show?
[DEFENSE COUNSEL]: I will -- can we play it?
[PROSECUTOR]: Sure.
[DEFENSE COUNSEL]: I’ll give you a solid picture.
[PROSECUTOR]: Judge, maybe I can simplify things, too,
before we play it. We can play it.
THE COURT: Yes, [Prosecutor]?
[PROSECUTOR]: In initially inquiring about this case, I was
told there was no video system in that unit. I just asked Chad Roberts,
who is the city manager, police chief, who is in the room now, was there
a video system in the -- system in that car and what was that? And Mr.
Roberts told me that it is an old video system that’s not been functional
in years. Is that what you told me?
MR. ROBERTS: That’s correct.
THE COURT: If you’ll step up here, we’ll make a record of that.
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[DEFENSE COUNSEL]: Judge, the case has rested. I object to
any --
THE COURT: This has nothing to do with the case. This is to
make the record complete. And you’re raising an issue, and you are
impugning the integrity of law enforcement and of State’s counsel.
And -- go ahead and be seated. And either we’ve got a serious problem
and we need to get to the bottom of it and heads need to roll or you need
to -- you know, but we’re going to make a record at this time.
The court, apparently in an attempt to determine whether there had been perjury,
then heard testimony from Roberts, who confirmed that there was in fact a camera
in the pickup but that it had been “nonfunctional . . . for at least two years.” After
hearing the testimony, the court stated:
THE COURT: The defendant will be prohibited from going into
anything that’s not part of the record. And to point out and to argue
that that exists would be inappropriate.
[DEFENSE COUNSEL]: You're telling me -- for clarification,
Your Honor -- my job as a defense attorney is to show where officers
are either lying or are mistaken.
THE COURT: That’s called evidence. That evidence is not
before the Court. We are moving on at this point. You’ve made your
record. I’ve made my ruling. . . .
[DEFENSE COUNSEL]: Judge, I need to make a record of what
this testimony and my argument would be if it was properly allowed.
THE COURT: Do it and get to your point.
After playing the video for the trial court and pointing out what appeared to be the
image of a video camera in the police vehicle, Appellant’s trial counsel stated:
[DEFENSE COUNSEL]: Okay. My request, Judge, is to be able
to argue on closing and point out in the [body cam] video what, I
believe, shows in admissible, already admitted evidence, the [body
cam] video, that that appears to be a camera.
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THE COURT: And your request is denied. The objection is
overruled. And you’ve made your record.
From the transcript, the questioning of Roberts was done over the objection of
Appellant’s trial counsel. Roberts testified outside the presence of the jury. Neither
the testimony nor the content thereof was provided to the jury, nor was it argued by
the parties to the jury.
We review the trial court’s decision to permit or refuse a particular jury
argument for abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex.
Crim. App. 2010). The trial court has broad discretion in controlling the scope of
closing argument; however, it may not prohibit defense counsel from making a point
essential to the defense or from doing something it had the legal right to do. See
Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016, no
pet.); Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.). To
do so is a denial of the defendant’s right to counsel. Vasquez, 484 S.W.3d at 531
(citing Wilson v. State, 473 S.W.3d 889, 901–02 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d)). “A defendant has the right to argue any theory supported by the
evidence, and may make all inferences from the evidence that are legal, fair, and
legitimate.” Id. To be permissible, jury argument must fall within one of four areas:
(1) summation of evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007).
Under the facts of the instant case, no fair inference or reasonable deduction
could have been made from the testimony and the video, particularly in light of the
fact that the jury only heard of the existence of a video system in the vehicle for the
first time during the closing arguments made by Appellant’s trial counsel. To be
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clear, Appellant’s trial counsel did not raise a contention that the State had withheld
video evidence that may have actually existed; rather, he asserted only that a video
system may have been in the officer’s vehicle, contrary to the officer’s testimony.
There is no relevance to Appellant’s proposed jury argument, however, without
implying that the video system was actually functional. Such an argument is outside
the record because there is no evidence of its functionality. Further, there is no
substantial relevance to a working video system without implying either that the
video had been withheld or that the police intentionally failed to activate it so that
the officers could hide their actions and words during the arrest. That argument
would also be outside the record. Neither the State nor the defense may use closing
argument as a vehicle to place before the jury evidence that is outside the record.
See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Appellant’s
argument would have invited speculation or introduced facts not present in the
record, namely, whether the video equipment was capable of an acceptable level of
operation. That is evidence outside the record. A trial court has authority to exclude
argument based on theories not supported by the evidence. Vasquez, 484 S.W.3d
at 532. Accordingly, following the intended line of argument, Appellant would
have implied to the jury that it could speculate on these matters and allow those
speculations to influence its verdict without proper evidentiary foundation. To fairly
argue those implications, there must be some evidence in the record that in
reasonable probability the video equipment was actually connected to a system that
was operational.
Trial counsel for Appellant did not pursue such evidence before or during trial
in order to forward such an argument in his closing. The mere existence of video
equipment is not sufficient to imply that it operated as a functioning system, was
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turned on, was intentionally not turned on, or recorded any images that would be
relevant or useful to Appellant’s defense. Making an argument about the existence
of video equipment in the officer’s vehicle would only have served to confuse the
jury about the relevant issues and would have likely created an improper inference
and allowed speculation that a viewable video from any such equipment did in fact
exist but was intentionally withheld or that the equipment was intentionally not
operated. For these reasons, we conclude the trial court did not abuse its discretion
in prohibiting Appellant’s counsel from discussing during closing arguments the
existence of video equipment in the officer’s vehicle.
Trial counsel for Appellant was invited on the record to make an offer of proof
as to what he would have argued to the jury had he been allowed to do so. The offer
of proof did not advise the trial court, and does not advise this court, of the specific
connections that trial counsel, had he been allowed, would have made to the video
equipment. Accordingly, the offer of proof lacks the substance needed for this court
to determine whether, based on the exclusion, Appellant was denied his right to
counsel. In his offer of proof, Appellant’s trial counsel merely stated that he wanted
“to be able to argue . . . and point out in the video what, I believe, shows . . . that that
appears to be a camera.” The question is whether the theory espoused in argument
would have been “supported by the evidence” and whether the inferences were legal,
fair, and legitimate. Wilson v. State, 473 S.W.3d 889, 901–02 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d).
Nevertheless, assuming, without holding, that the trial court erred, any such
error was harmless. The denial of the right to counsel is constitutional error that is
subject to a harm analysis under Rule 44.2(a) of the Texas Rules of Appellate
Procedure. See Vasquez, 484 S.W.3d at 532 (citing TEX. R. APP. P. 44.2(a); Wilson,
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473 S.W.3d at 901–02). An appellate court “must reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). “In
applying the harmless error test, the primary question is whether there is a
‘reasonable possibility’ that the error might have contributed to the conviction or
punishment.” Vasquez, 484 S.W.3d at 532 (citing Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998); Wilson, 473 S.W.3d at 901–02).
Importantly, courts have consistently held that there is no improper restriction
on a defendant’s jury argument that would amount to a denial of counsel where the
defendant is able to convey the gravamen of his argument to the jury despite the trial
court’s curtailment of a particular portion of his argument. Joiner v. State,
No. 08- 18-00118-CR, 2020 WL 4696625, at *17 (Tex. App.—El Paso Aug. 13,
2020, pet. ref’d) (not designated for publication) (citing Davis v. State, 329 S.W.3d
798, 824–25 (Tex. Crim. App. 2010)). Although Appellant’s trial counsel was
prohibited from specifically pointing to the existence of a video system in the
officer’s vehicle, Appellant’s trial counsel reminded the jury of the officer’s
testimony that no system existed and directed the jury to look at the top right corner
of the video before the State requested to approach the bench. The trial court was
never requested to instruct the jury to disregard; neither was the jury ever
admonished to disregard the argument or evidence or to refrain from considering it
when reaching a verdict. Soon after the ruling by the trial court, Appellant’s trial
counsel resumed his closing arguments, and he directed the jury to “take the video
back into the jury room and review it looking very closely at the last part of the
video.” Thus, the jury, in it discretion, was equipped to look for the existence of
video equipment and to resolve any inconsistency between that and the
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officer’s testimony. See Martinez v. State, No. 08-05-00116-CR, 2007 WL 416687,
at *3 (Tex. App.—El Paso Feb. 8, 2007, pet. ref’d) (not designated for publication)
(“Though she was prevented from directly arguing the issue, the jury could properly
infer that such was the case.”). Accordingly, Appellant’s trial counsel was able to
convey the gravamen of his argument; therefore, any potential error by the trial court
when it prohibited Appellant’s trial counsel from further identifying the existence of
a video system or arguing same was harmless. We overrule Appellant’s third issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
September 2, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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