Layton Willard Adams, Jr. v. State ( 2004 )

NO. 07-03-0012-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 9, 2004
______________________________
LAYTON WILLARD ADAMS, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 9998; HON. TOM NEELY, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD S.J.1
After his plea of guilty to a charged offense of possession of a controlled substance
in an amount of more than four but less than 200 grams, appellant’s adjudication was
deferred on April 30, 2001, and he was placed on probation for five years. On July 26,
2001, the State moved to proceed with adjudication and, on August 14, 2001, appellant
was adjudicated guilty and was assessed a five year penal sentence. However, on
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
December 10, 2001, the trial court entered an order granting community supervision after
sentence and appellant was placed on community supervision for five years. On
November 18, 2002, upon the State’s motion to revoke, the trial court found appellant had
tested positive on urinalysis tests on or about October 7, 2002, October 29, 2002, and
November 4, 2002, for amphetamines/methamphetamines, and thus had violated that
condition of his probation which required him to avoid injurious or vicious habits, including
the use of narcotic or habit-forming drugs. Accordingly, the trial court revoked appellant’s
probation and assessed the penal sentence giving rise to this appeal.
In presenting his appeal, and in each of his three issues, appellant only challenges
the court’s finding that he tested positive on the October 7, 2002 urinalysis. In mounting
that challenge, he asserts the trial court abused its discretion because the result of his
urinalysis was improperly admitted into evidence inasmuch as no proper predicate was laid
for its admission. To establish the predicate for the admission of a hearsay item as a
business record exception, the proponent must establish:
1. the record was made and kept in the course of a regularly conducted
business activity;
2. it was the regular practice of that business activity to make the record;
3. the record was made at or near the time of the event being recorded; and
4. the person making the record or submitting the information had personal
knowledge of the events being recorded.
Tex. R. Evid. 803(6); Philpot v. State, 897 S.W.2d 848, 851-52 (Tex. App.--Dallas 1995,
pet. ref’d).
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As appellant recognizes, in a hearing of this nature, the State is merely required to
prove its allegations by a preponderance of the evidence and, because appellant is
challenging the sufficiency of the evidence, it must be reviewed in a light most favorable
to the trial court’s decision. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981);
Kulhanek v. State, 587 S.W.2d 424, 426 (Tex. Crim. App. 1979). Further, the issue
presented is whether the trial judge abused his discretion, and if the State fails to meet its
burden of proof, the trial judge abuses his discretion in revoking the probation (community
supervision). Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).
The State presented two witnesses at the hearing, Bill Owen and John L. Laseter.
Owen testified that he had been appellant’s probation officer for some 11 months. It was
a part of his job to conduct random drug tests on his probationers. He conducted the tests
on appellant on October 7, October 29, and November 4, 2002, and witnessed appellant
giving the samples. As part of his training, he averred, he takes the specimens back to his
office, runs a “test strip” on them, and they are boxed up and sent to a lab for analysis. In
this case, after the October 7 test, he watched as appellant placed the specimen into a
container, sealed it, and initialed it. Appellant also initialed the carbon copy of the
paperwork included with the specimen, which was sent by U.S. mail to Accu-Chem in
Richardson or Fort Worth, Texas.
Laseter testified that he was employed as the laboratory director for the Accu-Chem
Laboratories in Richardson, Texas. He went over his rather extensive education in
biochemistry. He said that his company was engaged in testing activities such as those
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involved here. Laseter had been in that business for 20 years and had testified about 250
times in state district courts in Texas. He also listed the entities that had certified the
laboratory.
Laseter averred that specimens such as that in question here, come to his
organization in a sealed container that has a chain of custody tag on it, “which has relevant
information, numbers, and other identifiers on it, plus initials and signatures, and so forth.”
He said they received the subject specimen on October 9, 2002. It had all the seals intact
and all the necessary information on it. He admitted that he did not personally receive the
specimen nor did he personally perform the tests on it. He identified the records of the
tests performed, averred that he was the custodian of the records, that they were made in
the usual course of business, that the records were made at or near the time the tests were
performed, and that the records were made by persons with personal knowledge of the
activities they were documenting. All of the specimens received tested positive for the
presence of methamphetamine/amphetamine. He also testified that the collection of
specimens in the manner testified to by Owen would not contaminate the specimen such
that there would be a false reading from the tests performed by the laboratory.
The trial court did not err in admitting the records. Viewed in the light by which we
must view it, the evidence was sufficient to sustain the trial court’s conclusion that appellant
had violated the conditions of his probation in the manner alleged. Moreover, when more
than one violation of the conditions of community supervision is found by the trial court, the
revocation order will be affirmed if one sufficient ground supports the order. Inasmuch as
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appellant does not challenge the trial court’s findings on the other two dates, those findings
are sufficient to support the revocation order.
Accordingly, all of appellant’s issues are overruled and the judgment of the trial court
is affirmed.
John T. Boyd
Senior Justice
Do not publish.
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