      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00581-CR



                                    Harry Rutledge, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-07-203070, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Harry Rutledge of the offense of delivery of a controlled

substance. See Tex. Health & Safety Code Ann. § 481.112(a), (b) (West 2003). He pleaded true to

four enhancement paragraphs in the indictment and was sentenced to serve sixteen years in prison.

Rutledge contends that the district court erred in admitting hearsay evidence and that the evidence

was legally and factually insufficient to support the verdict. We affirm the district court’s judgment.

               On May 29, 2007, Rutledge was arrested in a “buy-bust” operation. An Austin police

officer, working undercover, approached a group of men at a bus stop and nodded to indicate that

he was “interested in something.” Rutledge approached. The officer asked Rutledge if he “had some

work,” a phrase that, according to the officer, is used to ask whether someone has crack cocaine.

Rutledge got into the officer’s vehicle. The officer told Rutledge that he “had 30,” which, according

to the officer, means that he wanted to buy $30 worth of crack cocaine. The officer continued
driving through an alley. While the officer was still driving, Rutledge placed two crack cocaine

rocks on the center console between the driver and passenger seat. At Rutledge’s direction, the

officer drove into a motel parking lot and around the back of the motel. Once they had stopped, the

officer attempted to give Rutledge $30 of marked money, but Rutledge refused. Rutledge then asked

if he could borrow $30. The officer told Rutledge that he could “have” the money and gave it to

Rutledge. After the transaction, the officer gave the prerecorded “bust” signal and, moments later,

the takedown unit came in and made the arrest.

               After the arrest, the officer placed the two crack cocaine rocks into a small plastic

bag, completed a chain-of-custody sheet, including his name, employee number, date, and time,

and transferred the bag of crack cocaine to a detective for testing. According to the test results, the

crack cocaine seized in the transaction weighed a total of .22 grams.

               Rutledge was indicted for delivery of a controlled substance. The indictment included

enhancement paragraphs for four previous drug convictions. A jury convicted Rutledge as charged.

After conviction, Rutledge waived jury sentencing. He pleaded true to the four enhancement

paragraphs, and the district court sentenced him to sixteen years in prison. Rutledge appeals, arguing

that the district court erred in admitting hearsay evidence over his objection and that the evidence

was legally and factually insufficient to support the verdict.

               In his first point of error, Rutledge complains of the admission of the testimony of

Gloria Rodriguez, a chemist with the Austin Police Department, relating to her identification of the

State’s exhibit containing the crack cocaine. According to Rutledge, Rodriguez’s testimony that

linked Rutledge to the crack cocaine evidence was inadmissible hearsay. The State responds



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that—even if Rodriguez’s statement was hearsay—any potential error was waived when the same

evidence was admitted without objection through other testimony and exhibits. As a corollary, the

State also argues that because the evidence was admitted through other means, even if Rodriguez’s

testimony was erroneously admitted, the error was harmless.

                The evidence in question included the following testimony:


       Q.       And you’re handing me the evidence you brought with you today; is that
                correct?

       A.       That’s correct.

       Q.       And what’s on the front of this?

       A.       That is the chain of custody that is used by our police agency.

       Q.       And this number on the top right here, what is that number?

       A.       That is the unique offense number that is generated for each case in the City
                of Austin. In this particular case it’s offense number 2007 for the year and
                then 6900330 indicates to me that it’s a narcotics case.

       Q.       And these names and dates right here, what do they signify?

       A.       That is every person who’s personally come in contact with the evidence. It’s
                required by our general orders to sign the chain of custody on the date and
                time that they received it.

       Q.       Okay.

       State:                     At this time I would like to ask that this be marked as State’s
                                  Exhibit No. 2.

       Q.       Inside the bag with the identifying number and the chain of custody on it,
                what is inside of the bag?

       A.       Inside State’s Exhibit No. 2 contains a small Ziploc bag which contains two
                off white rock like substances and my initials GR and my employee number

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                2320 is present along with the unique laboratory case number that is assigned
                by the laboratory to the APD offense number in this case. It reflects
                laboratory offense number L0707033.

       Q.       Okay. Through that chain of custody and those identifying numbers where -
                what is the defendant’s name that that crack cocaine was taken - the offense
                that that crack cocaine was recovered from?

       A.       According to the police information system called Versidex the name that is
                attached to State’s Exhibit No. 2 -

       Defense counsel:        Objection, hearsay.

       Court:                  Any response to this objection?

       State:                  It’s part of her job to make sure that she’s testing the right
                               drugs for the right case. It makes sense that she would look
                               it up to verify that.

       Court:                  Anything else? Any -

       Defense counsel:        I’ll rest on that objection.

       Court:                  I’ll overrule the objection.

       Q.       What is the name of the person?

       A.       The name that was written on the submission form and that [] was verified
                against the police information system was for Harry Rutledge.

       Q.       And when you were testifying about all those tests that you did that - those
                two crack cocaine rocks were the particular rocks that you tested in this case;
                is that correct?

       A.       Yes ma’am.


                The admission of evidence—even if erroneous—is not reversible error where

the evidence is cumulative of other evidence in the record admitted without objection. See, e.g.,

Hitt v. State, 53 S.W.3d 697, 708 (Tex. App.—Austin 2001, pet. ref’d) (citing Anderson v. State,

                                                   4
717 S.W.2d 622, 626-27 (Tex. Crim. App. 1986)). Here, the fact admitted into the record through

Rodriguez’s testimony was that the identifying numbers attached to the exhibit containing the seized

crack cocaine corresponded to Rutledge. The same fact came into evidence a number of other times

throughout trial without objection. State’s Exhibit 3, the “Forensic Chemistry Initial Report,” also

links Rutledge to the crack cocaine and was admitted without objection. The Report identifies

Rutledge as the suspect and includes his date of birth, the offense number, the laboratory number,

and the Versidex number. In addition, another Austin police officer, who was monitoring the buy-

bust operation on May 29, 2007, identified an audio tape, admitted as State’s Exhibit 1, on which

he had recorded the conversation between the officer working undercover and Rutledge. The

monitoring officer testified that he heard Rutledge make the transaction for the crack cocaine. The

monitoring officer also told the jury that, after he made the recording, he wrote the case number on

the cassette. In the course of his testimony, the monitoring officer linked Rutledge to the offense

number attached to the crack cocaine by identifying Rutledge in open court as the person he had

seen getting into and being arrested outside of the undercover officer’s car on May 29. The offense

number on the audio tape is identical to the offense number attached to the exhibit containing

the crack cocaine. In addition to State’s Exhibit 3 and the monitoring officer’s testimony, to which

defense counsel did not object, State’s Exhibit 2—the crack cocaine and the attached chain-of-

custody documentation—was admitted into evidence without objection as to authentication.1 The

substance of the complained-of testimony came into evidence a number of times without objection.




       1
           Defense counsel objected to the admission of this exhibit as to relevance only.

                                                  5
Consequently, admission of the testimony at issue—even if erroneous—is not reversible error.

Accordingly, we overrule Rutledge’s first point of error.

               In his second and third points of error, Rutledge challenges the legal and factual

sufficiency of the evidence to support the jury’s verdict. According to Rutledge, the only evidence

of the beginning on the chain of custody of the crack cocaine was the testimony of Rodriguez,

to which defense counsel objected as hearsay. The State again responds that, even if Rodriguez’s

testimony was hearsay, other evidence admitted without objection establishes that the crack cocaine

in State’s Exhibit 2 was the same crack cocaine seized from Rutledge.

               In a legal-sufficiency review, we consider whether a rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State,

158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most

favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed

the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson

v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Shams v. State, 195 S.W.3d 346,

347 (Tex. App.—Austin 2006, pet. ref’d) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim.

App. 1981)).

               In a factual-sufficiency review, the evidence is reviewed in a neutral light. Roberts

v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence is factually insufficient (1) when

the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly

unjust; and (2) when the supporting evidence is outweighed by the great weight and preponderance

of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. An



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appellate court must be appropriately deferential to the jury’s verdict, in order to avoid substituting

its own judgment for that of the fact-finder. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.

2002). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder.

King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

                Rutledge challenges the sufficiency of the evidence to support a link between him

and the crack cocaine. The record evidence includes State’s Exhibit 3, the “Forensic Chemistry

Initial Report,” which identifies Rutledge as the suspect and includes his date of birth, the offense

number, the laboratory number, and the Versidex number. The information included in the Report

is identical to that found on the chain-of-custody sheet attached to the crack cocaine and admitted

into evidence. In addition, the police officer who monitored the buy-bust operation identified

Rutledge in open court and testified that he had written the offense number corresponding to

Rutledge’s case on an audio tape that was admitted into evidence as State’s Exhibit 1. The offense

number on the audio tape is identical to the offense number on the chain-of-custody sheet attached

to the crack cocaine. As explained above, State’s Exhibit 2 was also admitted into evidence without

objection as to authentication.2 State’s Exhibit 2 includes the seized crack cocaine along with the

chain-of-custody sheet, which indicates that the crack cocaine was seized from Rutledge. The officer

working undercover also identified Rutledge in open court as the person with whom he had made

the crack cocaine transaction. He testified that he took possession of the crack cocaine, placed it into

a small plastic bag, completed and signed the chain-of-custody form, included his name, employee

number, date, and time, and gave the bag to his detective for testing.


       2
           Defense counsel objected to the admission of this exhibit as to relevance only.

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               Viewed in either a light favorable to the verdict or in a neutral light, the record

evidence is sufficient to establish a link between the crack cocaine admitted into evidence at trial

and Rutledge. See Rollerson, 227 S.W.3d at 724; Roberts, 220 S.W.3d at 524. Accordingly, we

overrule Rutledge’s second and third points of error.

               Rutledge’s points of error are overruled, and the judgment of conviction is affirmed.




                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: April 9, 2009

Do Not Publish




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