San Jose and Natali Albear, Individually and as Next Friend of Grace Albear, a Minor v. Tom Upchurch, Jr. and Tom Upchurch, Jr. & Associates

NO. 07-04-0525-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

SEPTEMBER 12, 2006 ______________________________

FLOYD TUTSON, et al.,

Appellants

v.

TOM UPCHURCH, JR., TOM UPCHURCH, JR. & ASSOCIATES, AND WAYNE BARFIELD,

Appellees

_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 79,998-A; HON. JOHN T. FORBIS, PRESIDING _______________________________

On Motion for Rehearing ______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J. ⁽¹⁾

Pending before the court is a motion for rehearing of Tom Upchurch, Jr., Tom Upchurch, Jr. and Associates, and Wayne Barfield (Upchurch and Barfield). Movants inform us that we engaged in "a complete misconstruction of what occurred" when reversing the summary judgment entered below. Furthermore, the "complete misconstruction" involved our application of Texas Rule of Civil Procedure 11 to the circumstances depicted in the record. There was no agreement between counsel implicating Rule 11, they continued. Rather, the "statement of concession by" appellants' counsel was merely "an announcement to the [trial] court that there was no contest . . . ." ⁽²⁾ (Emphasis added). Within these words lies the answer to their motion.

Whether an attorney sits down with opposing counsel and the two jointly negotiate a resolution to the dispute is unimportant. Rule 11 and its mandate encompasses a "concession" made by trial counsel in court. See e.g., Michiana Easy Livin' Country , Inc. v. Holten, 168 S.W.3d 777, 793 (Tex. 2005) (holding unenforceable trial counsel's purported "concession" regarding the forum selection clause since the "concession" went unrecorded); Shepherd v. Ledford, 926 S.W.2d 405, 410 (Tex. App.-Fort Worth 1996), aff'd, 962 S.W.2d 28 (Tex. 1998) (applying Rule 11 to stipulations which included a "concession" by counsel). Moreover, and as quoted above, Upchurch and Barfield themselves described opposing counsel's conduct as a "concession." Thus, it had to comport with Rule 11 to be valid. Because it did not, it was and remains unenforceable. We are not unmindful of the age of this case. But, that does not authorize us to ignore Rule 11. Simply put, this court did not misapply Rule 11 via a "complete misconstruction of what occurred." Thus, we overrule the motion for rehearing.

Per Curiam

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).

2.

Whether Mr. John Lesly, trial attorney for the appellants, had the authority to unilaterally concede the bona fides of the summary judgment motion of Upchurch and Barfield and accede to the entry of judgment against his clients is a question reserved for another day and another forum. Yet, we do note that such authority is neither inherent in nor implied from the mere existence of an attorney/client relationship. Southwestern Bell Tel. Co. v. Vidrine, 610 S.W.2d 803, 805 (Tex. Civ. App.-Houston [1^st Dist.] 1980, writ ref'd n.r.e); Johnson v. Back, 378 S.W.2d 723, 725 (Tex. Civ. App.Amarillo 1964, no writ).

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NO. 07-09-0074-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 14, 2011

_____________________________

JAMES LYNN CAMPBELL,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 57,233-A; HONORABLE HAL MINER, PRESIDING

_____________________________

Memorandum Opinion

_____________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            James Lynn Campbell appeals his conviction for possessing a controlled substance (cocaine).  He seeks reversal on the basis that the trial court erred in admitting into evidence the cocaine since it was not properly authenticated; that is, appellant questioned whether the State proved chain of custody.  We affirm the judgment.

            The pertinent standard of review is one of abused discretion.  Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).  Next, evidence is authenticated when there is evidence sufficient to support a finding that the matter in question is what its proponent claims.  Tex. R. Evid. 901. Absent evidence of tampering, questions regarding the chain of custody affect the weight a factfinder may assign to the evidence and not its admissibility.  Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010).  Moreover, there must be affirmative evidence of tampering presented by appellant before its admission becomes improper; the potential for tampering or theoretical tampering does not suffice.  Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.–San Antonio 2006, pet. ref’d).       

            Officer Scott Chappell brought the baggie of cocaine at issue to court and testified that the crack cocaine was contained in his evidence bag.  He also stated that he 1) marked and labeled the baggie when he placed it in the evidence bag, and 2) booked it into the evidence room of the police department.  The officer testified that 1) the baggie was the same one depicted in a photograph taken at the scene of the offense because it contained his evidence tag and his writing on the label, and 2) the baggie was “similar to the picture.”   Then, he opined that laboratory personnel may have placed his evidence bag into an outer sleeve.  When asked if the item appeared to have been tampered with or altered in any way, the officer replied that someone had attempted to lift fingerprints off the bag, Officer Peoples performed a fingerprint examination on the bag, and the evidence had been released by Officer Wheeler to the crime laboratory for analysis.  Neither Peoples nor Wheeler testified. 

            Next, Brandon Conrad, an employee of the Department of Public Safety Crime Laboratory, stated that items received are given an individual case number and placed into a secure vault until retrieved by an analyst.  Exhibit 8 (the baggie of drugs within the outer sleeve) was sealed and carried a laboratory case number as well as Conrad’s initials and a date, according to Conrad.  The latter also testified that he performed an analysis of the substance, that the results of the analysis appeared in State’s Exhibit 9, and that the evidence did not appear to have been tampered with.  

            To establish the chain of custody, one need only prove the chain’s beginning and ending.  Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.–Houston [14^th Dist.] 2010, pet. ref’d) (rejecting the argument that the evidence was inadmissible because the State failed to have all who may have touched the item testify about what they may have done with it).  The testimony of Chappell and Conrad did just that.  A moment-by-moment account of where the evidence had been or who may have touched it is unnecessary. Id.   So, the authenticity of the cocaine was sufficiently established. And, that other identification marks may have appeared on the baggie, or that someone once opined before analysis that the bag contained cocaine when analysis showed it contained that drug and methamphetamine, or that Chappell thought the baggie proffered at trial was similar to the one appearing in a picture, or that someone attempted to fingerprint the bag are not affirmative evidence of tampering. Consequently, the trial court did not abuse its discretion in overruling appellant’s objection. See Ennis v. State, 71 S.W.3d 804, 807-08 (Tex. App.–Texarkana 2002, no pet.) (finding purported deficiencies of 1) an officer not being able to identify the weapons at trial as the ones he saw in the defendant’s hand although they resembled them, 2) failing to account for the discrepancy in time between the seizure of the weapons and sealing the envelope in which they were placed, and 3) inconsistent testimony regarding the envelope in which they were placed to be nothing more than theoretical gaps). 

            Accordingly, we overrule the issue and affirm the judgment.

                                                                                    Brian Quinn

                                                                                    Chief Justice

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