                                                                         ACCEPTED
                                                                     06-15-00022-CR
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                 6/4/2015 5:41:25 PM
                                                                    DEBBIE AUTREY
                                                                              CLERK

             No. 06-15-00022-CR
                   IN THE
                                                    FILED IN
                                             6th COURT OF APPEALS
       SIXTH COURT OF APPEALS                  TEXARKANA, TEXAS
              at TEXARKANA                   6/4/2015 5:41:25 PM
                                                 DEBBIE AUTREY
      _____________________________                  Clerk

          SONYA KAY HARGETT,
                  Appellant,
                      v.
             STATE OF TEXAS,
                  Appellee.
      _____________________________
     Appealed from the 71st District Court
         for Harrison County, Texas


           APPELLANT’S BRIEF


                                              Jason D. Cassel
                               Texas State Bar No. 24006970
                                           jdc@emafirm.com
                                  ALBRITTON LAW FIRM
                                               P.O. Box 2649
                                     Longview, Texas 75606
                                  Telephone (903) 757-8449
                                   Facsimile (903) 758-7397

                            ATTORNEY FOR APPELLANT
                                     Sonya Kay Hargett

APPELLANT REQUESTS ORAL ARGUMENT
                               No. 06-15-00022-CR

                          SONYA KAY HARGETT,

                                   Appellant,

                                       v.

                               STATE OF TEXAS,

                              Appellee.
       ______________________________________________________

             IDENTITY OF THE PARTIES AND COUNSEL
      ________________________________________________________


       Appellant certifies that the following is a complete list of the parties,
attorneys and any other person who has any interest in the outcome of this
lawsuit:

Sonya Kay Hargett
APPELLANT

Jason D. Cassel
Texas State Bar No. 24006970
jdc@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Telephone (903) 757-8449
Facsimile (903) 758-7397

ATTORNEY FOR THE APPELLANT ON APPEAL & TRIAL




                                       ii
THE STATE OF TEXAS
APPELLEE

Coke Solomon
Harrison County District Attorney
Shawn Connally
Harrison County Assistant District Attorney
200 West Houston, Suite 206
Marshall, Texas 75670
Telephone (903) 935-8408
Facsimile (903) 938-9312

ATTORNEYS FOR THE STATE OF TEXAS




                                       iii
                                        TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL .................................................. ii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES...................................................................................... v

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED FOR REVIEW ..................................................................... 3
The drug testing results and expert testimony were not admissible
under Article 38.35(d)(1) of the Texas Code of Criminal Procedure
where the evidence showed the lab was not accredited by DPS as
required, the testing was confirmatory and the lab was not under
contract with the probation department at the time of the analysis. Ms.
Hargett was harmed by this error.

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT ............................................................................................................. 5

CONCLUSION AND PRAYER ............................................................................. 11

CERTIFICATE OF SERVICE ………………..………….....................................11




                                                          iv
INDEX OF AUTHORITIES

A. Cases

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007 ........................................... 5

Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) ........................................ 5

Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) ......................................... 9

Ex parte Roberts, 409 S.W.3d 759 (Tex. App.—San Antonio 2013, no pet.) .... 5, 10

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) ........................................... 2


B.      Statutes

Tex. Code. Crim. Proc. Art. 38.35 ...................................................2, 3, 4, 5, 8, 9, 10

Texas Government Code §411.0205 ...............................................................6, 7, 10




                                                   v
                               No. 06-15-00022-CR

                            SONYA KAY HARGETT,

                                     Appellant,

                                         v.

                               STATE OF TEXAS,

                               Appellee.
      _________________________________________________________

                        APPELLANT’S BRIEF
      _________________________________________________________

      Appellant, Sonya Hargett, submits her brief. Appellant will be referred to

as Ms. Hargett. Appellee, the State of Texas, will be referred to as the State.

                         STATEMENT OF THE CASE


      On June 18, 2009, Ms. Hargett was arrested for felony Driving While

Intoxicated and indicted on November 23, 2009. CR 6-7. Approximately a year

later, on November 1, 2010, Ms. Hargett pleaded guilty to felony DWI and,

pursuant to a plea agreement, was sentenced to 10 years in prison probated for 5

years. CR23-33. One of the conditions was that Ms. Hargett abstain from the use

of alcohol and controlled substances. CR 32. On or about August 27, 2014, the

State filed an Application for Revocation of Probation alleging that Ms. Hargett

tested positive for methamphetamine on July 21, 2014 and methamphetamine and

ETG/Alcohol on August 18 2014. CR 54.


                                          1
       The State’s Application was set for hearing on October 6, 2014. CR 68. On

the same day the State filed a Motion for Continuance and the case was reset until

December 17, 2014 to subpoena the chemist that performed the testing from

Redwood Toxicology in California. CR 68, 71.


       On December 17, 2014, the State abandoned the July 21 allegation,

proceeding with August 18, 2014 allegations. RR 4. Ms. Hargett pleaded not true1.

RR 6. During the hearing, Ms. Hargett objected to the admission of the results of

testing on two grounds, that the State failed to prove the scientific predicate of the

testing under Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) and that the

results were not admissible under the Texas Code of Criminal Procedure Article

38.35(d)(1) because “The Lab” was not a DPS accredited lab and that they were

performing “confirmatory testing” while they were not under contract with the

probation department. RR 24, 28-37. Ultimately, Ms. Hargett’s objection were

overruled and the results were admitted. RR 35-38. The court found that Ms.

Hargett had “violated her probation,” revoked her probation and sentenced her to 2

years in the Texas Department of Criminal Justice. RR 78 and CR 87. Ms. Hargett

timely filed a notice of appeal. CR 92.




1
  The judgment revoking probation mistakenly indicates that Ms. Hargett pleaded true to the
allegations in the motion to revoke. CR87.


                                               2
                        ISSUE PRESENTED FOR REVIEW


   1.    The drug testing results and expert testimony were not admissible

         under Article 38.35(d)(1) of the Texas Code of Criminal Procedure

         where the evidence showed the lab was not accredited by DPS as

         required, the testing was confirmatory and the lab was not under

         contract with the probation department at the time of the analysis.

         Ms. Hargett was harmed by this error.


                           STATEMENT OF FACTS

        On December 17, 2014, the court heard the application to revoke Ms.

Hargett’s probation. RR 4. The only allegations were that Ms. Hargett tested

positive for methamphetamine and ETG/alcohol on or about August 18, 2014. RR

6. The State first called, Tanya Boyd, a Harrison County Probation Officer that

testified she obtained the urine sample from Ms. Hargett on the date in question.

RR 8-9. Ms. Boyd testified that she had Ms. Hargett urinate in a “plain foam cup,”

like a coffee cup. RR 14. The urine was then poured into a separate container,

which is depicted in State’s Exhibit 1 and 2. RR 14-15. Ms. Boyd then packed the

sample and it was then sent to Redwood Laboratory. RR 13, 15. The sample was

later “split” and a portion sent to “The Lab” in Tyler, Texas. RR 21-22.




                                         3
      The State next called Tommy Thompson, the director of “The Lab.” RR 16.

Mr. Thompson testified that “The Lab” is a DPS and DEA registered lab, meaning

they are registered to handle controlled substances. RR 17, 28. Mr. Thompson,

however, testified they are not a DPS accredited lab nor has they ever applied for

accreditation. RR 28, 29, 31. Mr. Thompson testified that he was asked to

perform confirmatory testing on Ms. Hargett’s urine in this case. RR 19, 24, 28.

Furthermore, he testified that he had been in communication about “providing

confirmation testing for the county” and believed or thought he was at the time he

testified, under contract with the county, but ultimately did not know if the contract

had been fully executed. RR 24, 26-28. Ms. Hargett objected on the basis of

Texas Code of Criminal Procedure Article 38.35(d)(1) that the results were

inadmissible because “The Lab” was not accredited by DPS under the Government

Code and they were performing confirmation testing while not under contract with

the probation department. RR 29-31. The objection was overruled. RR 30. Later,

the trial court pointed out the exclusion for presumptive testing if performed under

contract with a probation department. RR 78. Ms. Hargett repeated her objections

and noted Mr. Thompson testified he was performing confirmatory testing and he

was not even sure he was under contract at the time he testified, much less when he

performed the analysis as required by statute. RR 78. Ms. Hargett’s probation was

revoked, assessing her punishment at 2 years in TDCJ-ID. RR78.



                                          4
                          SUMMARY OF THE ARGUMENT

       The trial court erred by overruling Ms. Hargett's objection to the testimony

of purported expert and the results of the testing performed by Mr. Thompson

under Article 38.35(d)(1) of the Texas Code of Criminal Procedure.

                                         ARGUMENT

       The standard of review in evaluating a trial court's decision to admit or

exclude expert testimony is an abuse of discretion. Ellison v. State, 201 S.W.3d

714, 723 (Tex. Crim. App. 2006). A trial court abuses its discretion when its

decision lies outside the zone of reasonable disagreement. Casey v. State, 215

S.W.3d 870, 879 (Tex. Crim. App. 2007). However, the trial court's application of

the law to undisputed facts is reviewed de novo. Ex parte Roberts, 409 S.W.3d

759, 762 (Tex. App.—San Antonio 2013, no pet.).

       Article 38.35 provides in relevant part:

“Except as provided by Subsection (e), a forensic analysis of physical evidence

under this article and expert testimony relating to the evidence are not admissible

in a criminal action if, at the time of the analysis, the crime laboratory conducting

the analysis was not accredited by the director under Section 411.0205,

Government Code.”2”


2
 This a link to a list in state labs accredited by the Texas Department of Public Safety as
provided by the Government Code.
https://www.txdps.state.tx.us/CrimeLaboratory/documents/List_Texas_LabsAccredited


                                                 5
        Subsection (e) provides:

        “A forensic analysis of physical evidence under this article and expert

testimony relating to the evidence are not inadmissible in a criminal action based

solely on the accreditation status of the crime laboratory conducting the analysis if

the laboratory:

        (A)   except for making proper application, was eligible for accreditation by

the director at the time of the examination or test; and

        (B)   obtains accreditation from the director before the time of testimony

about the examination or test.”

        Lastly, “[f]orensic analysis" means a medical, chemical, toxicologic,

ballistic, or other expert examination or test performed on physical evidence,

including DNA evidence, for the purpose of determining the connection of the

evidence to a criminal action. The term includes an examination or test requested

by a law enforcement agency, prosecutor, criminal suspect or defendant, or court.

The term does not include:

        (A)   latent print examination;

        (B)   a test of a specimen of breath under Chapter 724, Transportation

Code;

        (C)   digital evidence;




                                           6
      (D)   an examination or test excluded by rule under Section 411.0205(c),

Government Code;

      (E)   a presumptive test performed for the purpose of determining

compliance with a term or condition of community supervision or parole and

conducted by or under contract with a community supervision and corrections

department, the parole division of the Texas Department of Criminal Justice, or the

Board of Pardons and Paroles; or

      (F)   an expert examination or test conducted principally for the purpose of

scientific research, medical practice, civil or administrative litigation, or other

purpose unrelated to determining the connection of physical evidence to a criminal

action.” Emphasis added.

      Here, Mr. Thompson purported to testify about the results of his

toxicological testing of Ms. Hargett’s urine. RR 38. He testified his testing was

confirmatory in nature. RR 19, 24, 28. He testified that he performed testing on or

about October 24, 2014. RR 44. Mr. Thompson indicated he had sent a contract to

“Mr. Cooper in the probation department” sometime between November and

September but was unsure if it had been executed at the time he testified. RR 27-

28. Mr. Thompson testified unequivocally that he was not accredited by the Texas

Department of Public Safety. RR 28, 29, 31.




                                         7
      Ms. Hargett contends the results were inadmissible because the results were

a toxicological test performed by an unaccredited lab and alternatively, that the

testing was confirmatory in nature, performed by a lab not under contract with the

probation department at the time of the analysis.

      First, the analysis of Ms. Hargett’s urine is a “forensic analysis.” A forensic

analysis includes chemical and toxicological testing. Tex. Code. Crim. Proc. Art.

38.35 (a)(4). However, Article 38.35(a)(4)(E) provides an exclusion to “forensic

analysis.”   Specifically, “a presumptive test performed for the purpose of

determining compliance with a term or condition of community supervision or

parole and conducted by or under contract with a community supervision and

corrections department, the parole division of the Texas Department of Criminal

Justice, or the Board of Pardons and Paroles.” The State’s contention was that a

probation revocation hearing is a “quasi-criminal action” and “not fully a criminal

action.” RR 29-30.

      However, Article 38.35(a)(2) defines “criminal action as including “an

investigation, complaint, arrest, bail, bond, trial, appeal, punishment or other

matter related to conduct proscribed by a criminal offense.”     Furthermore, in Ex

parte Doan, 369 S.W.3d 205(Tex. Crim. App. 2012), the Court of Criminal

Appeals held that a probation revocation and a separate criminal prosecution were

“criminal, judicial proceedings with nearly identical procedural rules.” While the



                                         8
issue Doan revolved around double jeopardy concerns related to a theft allegation,

the Court pointed out that a probation revocation “sought to prove theft in order

have the appellant's criminal punishment from a prior case altered to his

detriment.” Ex parte Doan, 369 S.W.3d at 212. Here, it is clear that the State

sought to prove a forensic analysis of her urine in order to impose Ms. Hargett’s

criminal punishment. Accordingly, the probation revocation is a criminal action as

defined by Article 38.35.

      Next, the trial court noted the exclusion of presumptive testing performed

under contract with a community supervision department. RR 78. This, however,

provides no refuge for the State.    Mr. Thompson repeatedly testified he was

performing confirmatory testing.     RR 19, 24, 28.      Secondly, he could not

equivocally state he was under contract with the “probation department” at the

time of the hearing much less at the time of the analysis. RR 27-28. Thus, the

State has failed to prove they are entitled to the exclusion provided by Article

38.35 (a)(4)(E).

      This brings to the forefront section (d)(1) which provides that forensic

analysis and expert testimony relating to the evidence are not admissible if at the

time of the analysis, the laboratory is not accredited as provided by the Texas

Government Code. Tex. Code of Crim. Proc. Art. 38.35(d)(1). It is undisputed




                                         9
that “The Lab” was not accredited by the Texas Department of Public Safety as

required by Texas Government Code §411.205. RR 28, 29, 31.

        Where the facts are undisputed, the trial court's application of the law is

reviewed de novo. Ex parte Roberts, 409 S.W.3d 759, 762 (Tex. App.—San

Antonio 2013, no pet.). Accordingly, this Court should review the decision to

allow Mr. Thompson’s testimony de novo.

       The testimony reflects that Mr. Thompson performed a forensic analysis of

Ms. Hargett’s urine to determine whether she violated probation and punishment

should be imposed. The Lab was not properly accredited and his testimony was

inadmissible under Article 38.35(d)(1) of the Texas Code of Criminal Procedure.

The trial court abused his discretion in admitting Mr. Thompson’s testimony and

the results of his testing.

                              CONCLUSION AND PRAYER

       Based on the record and the law before it, Ms. Hargett prays that the Court

of Appeals reverse the trial court’s decision to revoke her probation on the basis of

the erroneously admitted test results.

                                              Respectfully submitted,

                                              _________________________
                                              JASON D. CASSEL
                                              Texas State Bar No. 24006970
                                              jdc@emafirm.com




                                         10
                                           ALBRITTON LAW FIRM
                                           P.O. Box 2649
                                           Longview, Texas 75606
                                           Telephone (903) 757-8449
                                           Facsimile (903) 758-7397

                                           ATTORNEY FOR APPELLANT
                                           SONYA KAY HARGETT

                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing
Appellant’s Brief has been forwarded to the Harrison County District Attorney’s
Office on this 4th day of June, 2015.

                                           _________________________
                                           JASON D. CASSEL




                                      11
