Wilbert L. Prescott v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00352-CR

No. 10-03-00353-CR

No. 10-03-00354-CR

No. 10-03-00355-CR

Wilbert L. Prescott,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the Criminal District Court 4

Dallas County, Texas

Trial Court Nos. F02-56725-QK, F02-56726, F02-56728 and F02-56729

MEMORANDUM Opinion

          Wilbert Prescott was charged by indictment with three counts of aggravated assault on a police officer, one count of possession of a controlled substance, and one count of evading arrest with a motor vehicle.  These cases were tried together before a jury.  Prescott pleaded guilty to the evading arrest charge before the jury.  As instructed by the court, the jury found appellant guilty of evading arrest, and the trial court set punishment at ten years’ confinement. The jury also returned guilty verdicts on two of three counts of aggravated assault and the possession count. The court assessed sentences of twenty-five years for each aggravated assault case and twenty years for possession. Prescott brings three issues on appeal: (1) the trial court erred in failing to admonish him of the consequence of his plea; (2) the court erred in submitting a charge of voluntary intoxication; and (3) the court erred in allowing the controlled substance into evidence.

          We will overrule the issues and affirm the judgment.

BACKGROUND

          Officers Reynolds and Cozby were on patrol on November 6, 2002. Reynolds testified that around 2:40 in the morning, he saw a vehicle driving erratically.  When the officers attempted to stop the vehicle, it sped away.  The driver of the vehicle, later identified as Prescott, led a number of police on a thirty-minute chase down city streets and freeways.  Prescott turned into a restaurant parking lot, where he came to a stop.  The officers left their vehicles and approached.  Prescott accelerated forward into the open door of the squad car one of the officers was exiting, pinning the officer between the door and the body of the car.  Prescott then drove into a field, stopping again when his vehicle collided with another squad car. Officer Smith pulled his squad car behind Prescott’s vehicle. Prescott looked back, made eye contact with Smith’s passenger, threw his vehicle in reverse, and rammed into the passenger door.

          Prescott refused to exit his vehicle.  The officers broke the car window and physically removed him from the vehicle. In a patdown search, Officer Whitworth found a white substance tied up in small cellophane baggies in a pocket of Prescott’s jacket. The Southwest Institute of Forensic Science later determined the substance to be 4.9 grams of cocaine, including adulterants and dilutants.

Admonishment

          At trial, Prescott changed his plea on the evading arrest charge from not guilty to guilty.  He now complains that the trial court failed to admonish him of immigration consequences of his plea as required by the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05).  However, he does not contend that his plea was rendered involuntary by that failure.  See McGowin v. State, 912 S.W.2d 837, 840-41 (Tex. App.—Dallas 1995, no pet.) (holding that because the defendant did not contend the court’s failure to give the immigration admonishment prevented his plea from being knowing and voluntary the complaint was waived).  Prescott does not assert, nor does the record show, that he is a non-citizen subject to deportation. See Gorham v. State, 981 S.W.2d 315, 319 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (Because the record did not indicate that defendant was not a United States citizen, the appellate court had no basis to conclude that failure to admonish regarding deportation consequences affected his substantial rights.).  Prescott does not explain, nor does the record reveal, how he was harmed by the court’s failure to give the immigration admonishment.  Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999) (Failure to admonish defendant of the deportation consequences of his guilty plea and failure to admonish on the range of punishment is statutory error subject to 44.2(b) harm analysis.).

          Finding no harm, we overrule this issue.

Voluntary Intoxication

          Prescott argues that the trial court erred in submitting voluntary intoxication instructions to the jury over his objection.  A voluntary intoxication instruction is appropriate if evidence is introduced which might lead the jury to believe that the defendant was intoxicated at the time of the offense and that his intoxication might have contributed to his lack of knowledge of the offense.  Taylor v. State, 885 S.W.2d 154, 158-59 (Tex. Crim. App. 1994).   During his cross-examination of several of the police officers, defense counsel asked if Prescott’s erratic manner of driving was consistent with that of an intoxicated driver.  The officers agreed that he was driving as if he were intoxicated from either alcohol or a controlled substance.  The defense contended at trial that Prescott did not intentionally try to harm the police officers.  The voluntary intoxication instruction was justified because the jury could have concluded that Prescott lacked intent as a result of his intoxication.  Haynes v. State, 85 S.W.3d 855, 858 (Tex. App.—Waco 2002, pet ref’d).

          Finding no error, we overrule this issue.

Controlled Substance

          Prescott argues that the trial court erred in allowing the cocaine into evidence over his objection that no proper chain of custody had been established.  A trial court has great discretion in the admission of evidence at trial.  Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).  Although the Texas Rules of Evidence do not specifically address proper chain of custody, Rule 901(a) states that identification for admissibility purposes is satisfied if the evidence is sufficient to support a finding that the matter in question is what its proponent claims.  Tex. R. Evid. 901(a); Kingsbury v. State, 14 S.W.3d 405, 407-08 (Tex. App.—Waco 2000, no pet.).  Proof of chain of custody goes to the weight rather than the admissibility of the evidence. Kingsbury, 14 S.W.3d at 407.  Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence.  Id.

          Prescott made no offer of evidence of tampering or commingling.  He merely objected that the officer did not properly retrieve the evidence from the evidence locker.  The State later entered into evidence the officer’s property room receipt for the evidence.  We cannot say the trial court abused its discretion in admitting the cocaine into evidence.

          We overrule this issue.

Conclusion

          Having overruled all of the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 29, 2004

Do not publish

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