                                                                                  ACCEPTED
                                                                              06-15-00022-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                        7/27/2015 11:01:47 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                             NO. 06-15-00022-CR
                        IN THE COURT OF APPEALS
                                                             FILED IN
                                                      6th COURT OF APPEALS
                  SIXTH APPELLATE DISTRICT OF     TEXAS TEXARKANA, TEXAS
                                                      7/28/2015 8:32:00 AM
                            TEXARKANA, TEXAS
                                                          DEBBIE AUTREY
                                                              Clerk


                   SONYA KAY HARGETT, APPELLANT
                                      VS.
                     THE STATE OF TEXAS, APPELLEE


              APPEALED FROM THE 71ST DISTRICT COURT
                        HARRISON COUNTY, TEXAS
                         TRIAL COURT NO. 09-0447X


                             APPELLEE’S BRIEF
                   NOT REQUESTING ORAL ARGUMENT


Jonathan Hyatt
Assistant District Attorney
State Bar No. 24072161
Harrison County District Attorney’s Office
200 West Houston Street
Marshall, Texas 75670
Telephone: 903 935-8408
Facsimile: 903 938-9312
jonh@co.harrison.tx.us


ATTORNEY FOR APPELLEE
STATE OF TEXAS

                                                                          1
IDENTITY OF PARTIES AND COUNSEL
Appellant:
Sonya Kay Hargett


Trial Judge
      Hon. Brad Morin
      71st Judicial District Court
      200 West Houston, Suite 219
      Marshall, Texas 75670


Appellant’s Counsel on Appeal
      Jason D. Cassel
      P.O. Box 2649
      Longview, Texas 75606


State’s Counsel on Appeal:
      Jonathan Hyatt
      Harrison County District Attorney’s Office
      P.O. Box 776
      Marshall, Texas 75670




                                                   2
                 TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL………………………………...2
TABLE OF CONTENTS…………………………………………………………..3
INDEX OF AUTHORITIES……………………………………………………….4
STATEMENT OF THE CASE…………………………………………………….5
ISSUES PRESENTED FOR REVIEW…………………………………………….5
STATEMENT OF FACTS…………………………………………………………5
SUMMARY OF THE ARGUMENT………………………………………………6
ARGUMENT……………………………………………………………………….6
CONCLUSION AND PRAYER………………………………………………….11
CERTIFICATE OF SERVICE……………………………………………………12
CERTIFICATE OF COMPLIANCE……………………………………………...12




                                                  3
                            INDEX OF AUTHORITIES
CASES
Boykin v. State, 818 S.W.2d 787 (Tex.App.Crim. 1991)…………………………..6
Harris v. State, 359 S.W.3d 625,629 (Tex.Crim.App. 2011)………………………6
Hill v. State, 480 S.W.2d 200 (Tex.Crim.App. 1971)……………………………...7
Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 255 (1963)……………………8
Ishkin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 349 (Tex.App-Ft. Worth
Nov. 1996)………………………………………………………………………10
Smith v. Renz, 840 S.W.2d 702 (Tex.App.-Corpus Christi Oct 1992)……………10
United States ex re. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970)………8
Yazdchi v. State, 428 S.W.3d 831 (Tex.App.Crim. 2014)………………………….6


STATUTES
Tex. Code Crim. Proc. Art. 38.35…………………………………………5,6,8,11


OTHER
Wikipedia, Presumptive and Confirmatory Tests, July 27, 2015,
https://en.wikipedia.org/wiki/Presumptive_and_confirmatory_tests........................9




                                                                                        4
                          STATEMENT OF THE CASE

The state does not disagree with the Statement of the Case provided by Appellee

and respectfully requests that the Court rely upon it.



                      ISSUE PRESENTED FOR REVIEW

   1. Drug test results along with the expert testimony from said testing was

      properly admitted at the revocation hearing of Appellant because

      Article 38.35 of the Texas Code of Criminal Procedure does not apply to

      revocations; should this Court determine Article 38.35 does apply, the

      statute provides a specific exception to the exclusion of said evidence.



                         STATEMENT OF THE FACTS

The state does not disagree with the Statement of the Facts presented by Appellee

and respectfully requests that the Court rely upon it.




                                                                                    5
                       SUMMARY OF THE ARGUMENT

      The trial court did not err in overruling Ms. Hargett’s objection to the

testimony of the expert and results of the testing performed by Mr. Tommy

Thompson under Article 38.35 of the Texas Code of Criminal Procedure.

                                    ARGUMENT

      In reviewing a lower court’s interpretation of a statute, the standard of

review for appellate courts is de novo. Yazdchi v. State, 428 S.W.3d 831

(Tex.App.Crim. 2014). “In construing a statute, the court must seek to effectuate

the collective intent or purpose of the legislators who enacted the legislation.”

Yazdchi citing Harris v. State, 359 S.W.3d 625, 629 (Tex.Crim.App.2011). As

Boykin emphasizes, “When attempting to discern this collective legislative intent

or purpose, we necessarily focus our attention on the literal text of the statute in

question and attempt to discern the fair, objective meaning of that text at the time

of its enactment,” Boykin v. State, 818 S.W.2d 782 (Tex.App.Crim. 1991).

      Article 38.35 of the Code of Criminal Procedure outlines the Admissibility

of Forensic Analysis of Evidence. Similar to other statutes, it begins with

definitions that layout the parameters of this specific section. Of particular

importance is 38.35(a)(2)’s definition of “Criminal Action.” It reads as follows:

      “Criminal action” includes an investigation, complaint, arrest, bail, bond,
      trial, appeal, punishment, or other matter related to conduct proscribed by a
      criminal offense.

                                                                                       6
Upon reading this section, “Criminal action” can be construed as one of 9

categories: (1) investigation, (2) complaint, (3) arrest, (4) bail, (5) bond, (6) trial,

(7) appeal, (8) punishment, or (9) “other matter related to conduct proscribed by a

criminal offense.” The particulars of the instant case before this court are that it is

a revocation hearing. Following the logic of the statutory definition of “criminal

action’s” chronological stroll through criminal procedure, a revocation hearing is

none of the first 8 categories. It takes place after the investigation, complaint,

arrest, bail, bond, trial, appeal and punishment. After determining a revocation is

not any of the first eight categories, we must determine whether it may be

considered an “other matter related to conduct proscribed by a criminal offense.”

In the instant case, the Defendant/Appellant does not stand accused of a new

criminal offense. While the specific conduct of the Appellant is criminal in nature,

i.e. ingesting methamphetamine or drinking alcohol while on probation, the

specific conduct that the trial judge found to be true was not outlined along the

lines of a criminal offense. In fact, the Appellant’s conduct is more in line with

violation of a contract. The contract in this analogy would be the terms of her

probation and the violation would be her use of controlled substances/consumption

of alcohol while on probation. Case law supports the contention that revocation

hearings are administrative in nature. Quoting Hill v. State, 480 S.W.2d 200, 202-

3 (Tex.Crim.App. 1971), “A probation revocation hearing is not an adversarial

                                                                                           7
proceeding, a civil action or a criminal prosecution…instead, it is administrative in

nature, a means of protecting society and rehabilitating law breakers” also citing

Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 255 (1963), United States ex re.

Sperling v. Fitzpatrick, 426 F.2d1161 (2d Cir.1970). Because revocation hearings

are not “criminal actions,” this court must uphold the trial court’s ruling that the

drug test results and the subsequent expert testimony of the lab personnel is

admissible.

      In the event that this Court determines that Art. 38.35 is applicable, the

results obtained by the probation department fall well within one of the exceptions

to admissibility outlined in 38.35(a)(4)(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…

Per the Appellant’s brief, there are two reasons why this section should not be

applied: (1) that the test was confirmatory in nature as opposed to presumptive and

(2) there was no evidence supplied that such test was done as a result of a contract.

The state must respectfully disagree with the presumptive importance of both of

Appellant’s contentions.




                                                                                       8
      While discussing presumptive versus confirmatory testing, one must know

what these methods of testing are. Relying on the most efficient and accurate

sources of information is important in legal discussions, so the source of this

knowledge comes from the most reliable site available, Wikipedia.

      In medical and forensic science, a presumptive test is an analysis of a sample
      which establishes either:
             1.The sample is definitely not a certain substance
             2.The sample probably is the substance.
      For example, the Kastle-Meyer test will show that a sample is not blood, or
      that the sample is probably blood (but it may be one of a range of less
      common substances). Further chemical testing is required to prove that the
      substance is blood.
      Confirmatory tests are the tests required to confirm the analysis.
      Confirmatory tests cost more than simpler presumptive tests, which is why
      presumptive tests are often made to see if confirmatory tests are necessary.
      In a like manner, in medicine, a presumptive diagnosis identifies the likely
      condition a patient has, and a confirmatory diagnosis confirms the presence
      of the condition. Wikipedia, Presumptive and Confirmatory Tests, July 27,
      2015, https://en.wikipedia.org/wiki/Presumptive_and_confirmatory_tests.

The fact that the State’s evidence was more reliable than what is statutorily

requires shouldn’t be held against it. As such, the fact that the testing done on the

sample was confirmatory should be commended.

      The second contention of Appellant is that there was no evidence supplied of

a contract between the probation department and the lab that conducted this test.

Unless the lab is the most charitable organization in the greater East Texas area, it

is safe to assume that they were paid for their service. In fact, there was testimony

of the fact that Tommy Thompson had mailed a contract to the probation
                                                                                        9
department and that he wasn’t sure if the Probation Department had signed off on

it (RR 27-28). The fact that there was no signed, notarized, or otherwise blessed

contract presented in court does not mean that there was no contract. Citing Ishin

Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 349 (Tex. App.- Ft. Worth Nov.

1996) referencing Smith v. Renz, 840 S.W.2d 702, 704 (Tex. App.- Corpus Christi

Oct. 1992), “even if an offer and acceptance are not recorded on paper, dealings

between parties may result in an implied contract where the facts show that the

minds of the parties met on the terms of the contract without any legally expressed

agreement.” Applying this standard to the facts, Thompson’s laboratory testing

coupled with his appearance in court reinforce the idea that he was compensated.

There was no testimony indicating that he was forced to do any of this testing or

present analysis of said tests in Court without being compensated or otherwise paid

per the contractual terms he had mailed to the Probation Department.

      Upon further examination of this specific exception, this specific section

allows the testing of individuals on probation by probation. Testimony elicited

during the revocation from the probation officer indicated that the probation officer

took a sample of urine from the Appellant (RR 6-9). By the probation officer

directly participating in retrieving the sample, it serves as a further activation of

this exception to the requirement that any lab work be submitted by a DPS

accredited lab. As such, because the method of testing is more reliable, the lab and

                                                                                        10
Probation Department had an implied contract, and the probation department

actually participated in the collection of the urine sample, this exception to the

DPS accreditation requirement is applicable.

      The final contention of the Appellant is that the forensic analysis presented

in this case was not accredited by the Department of Public Safety and should

therefore not be permitted into evidence. Art. 38.35(d)(1) reads:

      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.

In the unlikely event this Court considers this last ditch argument, there is no

counter-argument from the state. No evidence was presented by the state of any

such accreditation, and if the court is not inclined to agree with our previous

arguments, we must cede this point.



                         CONCLUSION AND PRAYER
Based on the foregoing, the Appellee prays that the Appellant’s points of error be

overruled and judgment be affirmed.




                                                                                      11
                                Respectfully Submitted,
                                Jonathan Hyatt
                                Assistant District Attorney
                                Harrison County District Attorney’s Office
                                200 West Houston Street
                                Marshall, Texas 75670
                                Telephone: 903 935-8408
                                Facsimile: 903 938-9312


                                       /s/ Jonathan Hyatt
                                       Jonathan Hyatt
                                       State Bar No. 24072161

                      CERTIFICATE OF COMPLIANCE
      I certify that this brief contains 1580 words according to the computer
program used to prepare the document.
                                             /s/ Jonathan Hyatt
                                             Jonathan Hyatt




                         CERTIFICATE OF SERVICE
A copy of this brief was provided on July 27, 2015 to:
      Hon. Brad Morin via facsimile, and
      Jason D. Cassel via facsimile.




                                             /s/ Jonathan Hyatt
                                             Jonathan Hyatt


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