Sabrina E. Cyphers v. State ( 2005 )

NO. 07-05-0092-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 30, 2005
______________________________
SABRINA E. CYPHERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-404,739; HON. JIM B. DARNELL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Sabrina E. Cyphers appeals from a judgment convicting her of possessing, with the
intent to deliver, more than four but less than 200 grams of cocaine. The conviction was
founded upon her open plea of guilty. The two issues before us concern the trial court’s
refusal to allow her to withdraw her plea and the admission into evidence (during the
punishment phase of the trial) of an exhibit containing seven plus grams of cocaine. We
affirm the judgment.
Issue One – Withdrawal of Plea
Appellant initially contends that the trial court erred in refusing to allow her to
withdraw her plea. The request was made through appellant’s pro se letter to the court.
Furthermore, the letter was sent approximately two months after appellant pled guilty and
the trial court accepted the plea. We overrule the issue.
A defendant may withdraw his plea of guilty as a matter of right until judgment is
pronounced or the case is taken under advisement. Mendez v. State, 138 S.W.3d 334,
345 (Tex. Crim. App. 2004). Once the cause is taken under advisement, however, the
decision to permit the withdrawal of the plea lies within the trial court’s discretion. Jackson
v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Stone v. State, 951 S.W.2d 205,
206-07 (Tex. App.–Houston [14th Dist.] 1997, no pet.). Furthermore, the request must be
timely. If belated, then it is not an abuse of discretion to deny it. See Jackson v. State, 590
S.W.2d at 515 (stating that the request to withdraw the plea was untimely when it was
made six weeks after the matter had been taken under advisement); Cano v. State, 846
S.W.2d 525, 527 (Tex. App.–Corpus Christi 1993, no pet.) (holding that the request to
withdraw the defendant’s plea made almost four weeks after the case was taken under
advisement came too late).
Appellant does not dispute that the cause had been taken under advisement when
she sought to withdraw her plea. Consequently, the decision to grant or deny the request
lay in the trial court’s discretion. And, given appellant’s two-month delay in making the
request, the trial court did not abuse its discretion in denying it.
Issue Two – Admissibility of Exhibit
2
Next, appellant contends that the trial court erred in admitting into evidence, during
the punishment phase, State’s Exhibit 1(b). It consisted of over seven grams of cocaine
found in a search of appellant’s residence. Appellant believed the exhibit to be
inadmissible because the State failed to prove the requisite chain of custody. Furthermore,
it allegedly did so by neglecting to have the officer who acquired the cocaine at appellant’s
home identify it. We overrule the issue.
Texas Rule of Evidence 901(a) states that the requirement of authentication or
identification “is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” And, this can be done through “testimony that a
matter is what it is claimed to be.” TEX . R. EVID . 901(b)(1).
The record before us illustrates that the officer who originally found or seized the
cocaine at issue did not testify or otherwise authenticate the substance prior to its
admission into evidence. Nonetheless, the officer who conducted the initial buy from
appellant at her home, who acquired 2.6 ounces of the same substance from her, and
whose purchase culminated in the search of the location did testify. Furthermore, when
asked if he recognized both the 2.6 ounces he acquired (State’s Exhibit 1(a)) as well as the
seven comprising Exhibit 1(b), he replied:
I had packaged the narcotics. It was the crack cocaine that I had
purchased and that was also found later after the search of the residence
had been conducted.
3
Then, he stated that he forwarded the exhibits “to the DPS laboratory” for analysis.1 No
one objected to this testimony; thus, it was admissible for all purposes. See Poindexter v.
State, 153 S.W.3d 402, 406-07 (Tex. Crim. App. 2005). Given this uncontradicted
testimony, evidence appears of record sufficient to support a finding that the contents of
Exhibit 1(b) were what its proponents claimed it to be, i.e. cocaine within the possession
of appellant. Thus, we find no error in the admission of the exhibit.
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
1
The Sta te m istakenly argues that the officer said he “received the crack cocaine from an office r wh ile
at the Appellan t’s residenc e.” Inde ed, his testim ony was that he left with o nly the 2.6 ounces he personally
acq uired from app ellant.
4