Michael Parr v. State

NOS. 07-11-00203-CR; 07-11-00204-CR;
07-11-00205-CR; 07-11-00206-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 23, 2012
MICHAEL PARR, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-426,416, 2010-426,625, 2010-427,348, 2010-427,350;
HONORABLE JOHN J. "TREY" MCCLENDON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Michael Parr, entered pleas of guilty to four felony offenses without
benefit of a plea bargain. In No. 07-11-0203-CR, appellant pleaded guilty to possession
with intent to deliver cocaine, in an amount of more than four grams but less than 200
grams, within 1,000 feet of a school.1 In No. 07-11-0204-CR, appellant pleaded guilty to
possession with intent to deliver cocaine, in an amount of more than one gram but less
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(d), 481.134(a)(5), (b)(1), (c)
(West 2011).
than four grams, within 1,000 feet of a school.2 In No. 07-11-0205-CR, appellant
pleaded guilty to possession with intent to deliver cocaine, in an amount of more than
one gram but less than four grams, within 1,000 feet of a school.3 In No. 07-11-0206-
CR, appellant pleaded guilty to possession with intent to deliver cocaine, in an amount
of more than one gram but less than four grams, within 1,000 feet of a school.4
Further, appellant pleaded true to the enhancement paragraph alleging a prior
felony conviction in No. 07-11-0203-CR, No. 07-11-0205-CR, and No. 07-11-0206-CR.5
In No. 07-11-0204-CR, appellant pleaded true to two enhancement paragraphs alleging
prior convictions of felony offenses.6
After hearing the evidence regarding punishment, the trial court assessed
appellant’s punishment for each of the four convictions at confinement in the
Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 55
years, with all periods of confinement to run concurrently. Appellant has appealed the
judgments of the trial court. We affirm.
Factual and Procedural Background
Between January 4 and January 29, 2010, appellant engaged in deliveries of
cocaine to undercover narcotics officers of the Lubbock Police Department (LPD). This
series of transactions culminated with a “buy-bust” on January 29, 2010, when appellant
sold a larger amount of cocaine to one of the undercover officers. As a result of these
2
See id. §§ 481.112(c), 481.134(a)(5), (b)(1), (c).
3
Id.
4
Id.
5
See TEX. PENAL CODE ANN. § 12.42(c)(1) (West 2011).
6
Id. § 12.42(d).
2
transactions, appellant was indicted in the four separate cases he pleaded guilty to
which alleged various violations of the Texas Health & Safety Code. Appellant’s case in
No. 07-11-0203-CR was scheduled for trial on February 14, 2011.
During a hearing on pre-trial matters held on the day the jury panel was to report,
appellant’s appointed trial counsel presented a motion to be allowed to withdraw and a
motion for continuance. The record reflects that this case had been originally scheduled
for trial on the 15th and 29th of November 2010; however, the case was not tried for
reasons not apparent in the record. The trial court denied trial counsel’s request to
withdraw.
In support of the motion for continuance presented just before the trial was to
begin, appellant advised the trial court that he had suffered a fall in the jail and that, as a
result, he was in considerable pain while sitting in the courtroom. The trial court stated
on the record that he did not doubt appellant was in some discomfort; however, the
court observed that appellant was able to communicate with the court without any
difficulty. Further, appellant voiced that he was dissatisfied with his appointed counsel.
The trial court discussed this issue with appellant and pointed out that appellant had
waited until the day of trial to voice any objection to trial counsel. Subsequently, the trial
court denied appellant’s motion for continuance.
After a short recess, appellant and his trial lawyer informed the judge that
appellant desired to enter a plea of guilty without the benefit of any plea bargain.
Thereafter, the trial court admonished appellant regarding the entry of a plea of guilty.
After being orally admonished by the trial court and receiving the written
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admonishments, which the trial court went over with appellant, appellant entered a plea
of guilty in each of the cases before this Court. Appellant also entered pleas of true to
the enhancement portions of the indictments. The trial court found appellant guilty of
the charges and found the enhancement portions of the indictments true, but then
recessed the hearing until a later date when punishment evidence would be considered.
The trial court heard evidence regarding punishment on April 4, 6 and 7, 2011.
During the punishment hearing, the undercover officers; representatives of the
Department of Public Safety (DPS) laboratory; and other members of the LPD, who
were involved in the arrest of appellant, testified. After hearing this evidence and the
testimony presented by appellant, the trial court assessed appellant’s punishment at
confinement in the ID-TDCJ for a term of 55 years on each case. All terms of
confinement were ordered to run concurrently.
Appellant gave notice of appeal, and presents three issues for the Court’s
consideration. The first two issues apply to all of the cases presented for review. By
these issues, appellant contends that the trial court abused its discretion by denying his
motion for continuance, and in admitting the controlled substances into evidence. By
his third issue, which applies to No. 07-11-0204-CR only, appellant contends that the
trial court abused its discretion in admitting a motor vehicle recording (MVR) of the
arrest into evidence. Disagreeing with appellant’s contentions, we affirm the judgments
of the trial court.
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Continuance
We review the trial court’s ruling on a motion for continuance under an abuse of
discretion standard. See Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). In
order to establish an abuse of discretion, appellant must show that he was actually
prejudiced by the denial of the motion for continuance. See id.
Appellant sought the continuance for two reasons. First, appellant asserted that
he was suffering the effects of a fall in the jail and, as a result, was in considerable pain.
Second, appellant asserted that he needed a continuance to acquire new counsel
because his appointed counsel did not have his best interest at heart.
Reviewing the record concerning the first reason given for the motion for
continuance, we find that the trial court was able to observe appellant prior to ruling on
the motion, and stated on the record that appellant did not appear to be having any
difficulty in communicating with the court. Additionally, after appellant had entered his
plea of guilty and the State had rested its case on punishment, appellant called Brooks
Russell as a witness. Russell was the jailer on duty at the Lubbock County Detention
Center who observed appellant slip and fall in a water spill inside his confinement pod.
Russell testified that, when the fall occurred, he went to appellant and asked him to stay
on the floor until medical assistance could be obtained. Appellant refused to stay down
and insisted upon getting up. Russell sent appellant to the infirmary where he was
given a medical clearance. Additionally, the record contains nothing that could be
considered proof that appellant’s medical condition in any way prejudiced his ability to
converse with his attorney or otherwise assist in his own defense. Essentially,
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appellant’s brief simply asserts that his medical condition impacted his ability to
concentrate on the matters before the trial court. Simple assertions of harm or prejudice
are not sufficient to show the trial court abused its discretion in overruling a motion for
continuance. See Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010).
Appellant also moved for a continuance based upon his perception that his trial
counsel did not represent his best interest. Here, again, all we have before the Court
are appellant’s bare assertions. The record contains nothing that could be construed as
evidence that appellant was harmed or prejudiced by the trial court’s denial of the
motion for continuance on this basis. In fact, the record contains more than one
statement from appellant that he was satisfied with his trial counsel’s representation of
him. Under this state of the record, the trial court’s denial of the motion for continuance
based upon appellant’s perceived unhappiness with trial counsel was not an abuse of
discretion. See Gallo, 239 S.W.3d at 764. Accordingly, appellant’s first issue is
overruled.
Evidentiary Issues
Through his last two issues, appellant contends that the trial court abused its
discretion by admitting into evidence the cocaine and an MVR of his arrest. The first
contention applies to all of the cases. The second contention applies only to No. 07-11-
0204-CR.
As these issues relate to the trial court=s admission of evidence, we review the
decisions under the abuse of discretion standard. See Billodeau v. State, 277 S.W.3d
34, 39 (Tex.Crim.App. 2009). The test for abuse of discretion is whether the trial court
6
acted without reference to any guiding rules and principles. Montgomery v. State, 810
S.W.2d 372, 380 (Tex.Crim.App. 1990). A reviewing court applying the abuse of
discretion standard should not reverse a trial judge=s decision whose ruling was within
the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102
(Tex.Crim.App. 1996).
Admission of Cocaine
During the punishment hearing, numerous exhibits were offered into evidence.
These exhibits consisted of the cocaine purchased by undercover police officers from
appellant, and cocaine seized from appellant’s person when he was arrested. As each
exhibit was offered, the State established a chain of custody that went from the officer,
who either “bought” the cocaine from appellant or seized the cocaine from appellant, to
the LPD property room. From the LPD property room, the chain went to the officer who
transported the evidence to the DPS regional lab. The lab identified each exhibit by a
lab number. After analysis, the items were again picked up by an LPD officer and
returned to the property room, where the items remained until trial. When questioning
the various officers, the State asked if the bag or baggie that the item of evidence was
deposited in appeared to have been tampered with or appeared the same as the last
time the officer saw the exhibit. Some officers gave an explicit statement that it had not
been tampered with, while others said it appeared to be the same. Seizing upon this
type of language, appellant now contends that the chain of custody was not adequately
proven to admit the evidence. Additionally, appellant asserts that the use of the LPD
case number to identify the exhibits did not prove the chain of custody because the
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case numbers were not included in the indictments that resulted in appellant’s
convictions. However, we disagree with appellant’s contentions.
The record establishes which officer seized the evidence, and that each officer
was able to identify the evidence by use of the LPD case number, which corresponded
with the LPD case number placed on the seized item. Further, the evidence showed
who retrieved the evidence from the property room and took it to the laboratory for
examination. Thereafter, the record reflects which case number corresponded to which
laboratory number, and the results of the examination. This type of testimony is clearly
sufficient to identify the exhibits for admission under a proper chain of custody. See
Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989). In the absence of evidence of
tampering, once the exhibits have been properly identified, questions that go to the
subsequent care and custody of the evidence go to the weight, and not the admissibility,
of the evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997).
There is nothing in this record to support any insinuation that the evidence has
been tampered with. See id. Accordingly, the trial court did not abuse its discretion in
admitting the exhibits. See Billodeau, 277 S.W.3d at 39. Appellant’s issue is overruled.
Admission of MVR
Finally, appellant complains about the admission of the MVR of appellant’s
arrest. Appellant contends that there is nothing in the record to support the officer’s
training in operating the MVR. Additionally, appellant contends that there is nothing in
the record to support the officer’s testimony that the CD copy of the MVR, which was
8
produced at trial, was produced by a device capable of producing an accurate
reproduction of the original MVR.
To support these allegations, appellant has cited the Court to Edwards v. State,
551 S.W.2d 731, 733 (Tex.Crim.App. 1977). The problem with appellant’s analysis
under the seven part Edwards test is that the test predates the adoption of the Texas
Rules of Evidence.7 Subsequently, the Texas Court of Criminal Appeals ruled that any
thought that the Edwards test was maintained after the adoption of the Rules was
erroneous. See Angleton v. State, 971 S.W.2d 65, 68-69 (Tex.Crim.App. 1998) (holding
that the Court’s opinion in Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App. 1994), that
the Rules maintained the pre-rules authentication requirements was erroneous and
overruled). Rather, the requirements for admission of the CD of the MVR are: 1) the
copy accurately depicts the contents of the original recording, 2) the voices on the
recording are identifiable, and 3) the depiction of the conversation on the recording is
accurate. See id. at 67.
In the present case, during direct examination, the officer testified as to each of
the requisite requirements for admission of the CD. As such, the trial court did not
abuse its discretion in admitting the exhibit. Billodeau, 277 S.W.3d at 39. However,
appellant has another objection to the introduction of the exhibit. This objection was
that there were gaps in the sound portion of the recording.
7
Further reference to the Texas Rules of Evidence will be by reference to “Rules”
or ”Rule ___.”
9
While being questioned about these gaps, the officer testified that the older VHS
type of MVR’s are, at times, susceptible to interference from a number of sources. This
is what the officer attributed the gaps to. He fully explained that the gaps were present
on the original MVR also. The Angleton court was faced with a similar problem. There,
the gaps were in an audio tape but the court concluded that, although the tape in
question was difficult to understand and was unintelligible in some places, nevertheless
the recording contained periods of cohesive, coherent conversation and was
admissible. Angleton, 971 S.W.2d at 68. In the CD at issue, the video portion is
complete without any gaps. There are significant gaps in the audio portion; however,
most of these gaps are while appellant is seated in the patrol car. At the end of the day,
the objection lodged by appellant at trial went to the weight the court might give the
evidence and not to the admissibility of the CD. Accordingly, we find that the trial court
did not abuse its discretion in admitting the CD. See Billodeau, 277 S.W.3d at 39.
Appellant’s brief also posits an objection to admission of the CD under the rule of
optional completeness. See Rule 107. However, nowhere in appellant’s brief are we
cited to the record that would demonstrate that an objection to admission of the CD was
raised under this theory. Accordingly, this issue is not preserved for appeal. See TEX.
R. APP. P. 33.1.
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Conclusion
Having overruled appellant’s issues, the judgments of the trial court are affirmed.
Mackey K. Hancock
Justice
Do not publish.
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