                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NOS. 2-07-322-CR
                                   2-07-323-CR


KELLEY CAMACHO                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                  STATE

                                   ------------

           FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     Appellant Kelley Camacho appeals her two convictions for possession of

four grams or more but less than 200 grams of methamphetamine. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                                II. Background Facts

      In March 2006, a confidential informant (“CI”) working with the Denton

County Sheriff’s Office picked up Jackie Patterson and drove him to a 7-Eleven

in Lewisville. When they arrived, Patterson met appellant, who had agreed to

sell him a quarter ounce of methamphetamine. As the CI waited, Patterson

climbed into appellant’s car and rode with her to a trailer park in Flower Mound,

where she obtained a quarter ounce of methamphetamine for him before

returning him to the 7-Eleven.       When the CI confirmed that Patterson had

purchased methamphetamine, officers moved in, arresting Patterson and

appellant.

      Upon searching appellant, the officers found a glass pipe with

methamphetamine residue in her apron.               In her purse, they found a black

zippered     bag   containing   digital   scales,    plastic   bags,   marihuana,   and

methamphetamine.           When the officers         frisked Patterson, they found

approximately      eight   grams—slightly      more     than    a   quarter   ounce—of

methamphetamine in his pockets.

      In July, after her release on bond, appellant arranged another drug

transaction in which she agreed to sell four grams of methamphetamine to the

employer of a second confidential informant (“CI2").




                                           2
      Posing as the employer, an undercover officer (“UO”) went with CI2 to

appellant’s apartment.    Once inside, appellant directed UO and CI2 to the

bedroom. UO showed appellant three hundred dollars in cash, and appellant

motioned for him to lay it on a desk. UO watched as appellant weighed 4.6

grams of methamphetamine and set it on the desk. As UO picked up the drugs,

officers entered the apartment, and arrested appellant. Appellant’s teenage

son, who was present during the arrest, then directed the officers to an

additional 0.4 grams of methamphetamine in appellant’s bedroom.

      The State charged appellant in separate indictments for the March and

July drug sales. Each indictment contained an enhancement paragraph alleging

that appellant had a prior conviction for a felony drug offense. The two cases

were consolidated for trial. A jury returned verdicts of guilty on each, and after

hearing evidence on punishment, assessed thirty years’ confinement for each

conviction.   The trial court sentenced appellant accordingly, ordering the

sentences to run concurrently. Appellant brings fifteen points on appeal.

III. Prior Conviction Evidence Admitted Before Enhancement Paragraphs Read

      In three points, appellant seeks a reversal for a new punishment hearing

because evidence of her prior conviction was admitted before the State read the

enhancement paragraphs alleging that conviction to the jury.




                                        3
      In her first point, appellant claims that the trial court erred by letting the

jury consider evidence of the prior conviction before the prosecutor read the

enhancement paragraphs to the jury. Appellant, however, has forfeited this

complaint.    To preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling if they are not apparent from the context

of the request, objection, or motion.2 When the State offered State’s Exhibit

36 as evidence of appellant’s prior conviction, appellant objected only that the

exhibit had not “been tied to [her] by fingerprints or any other identifiers.” We

hold that this objection was insufficient to preserve appellant’s claim that the

trial court erred by allowing the jury to consider evidence of her prior conviction

before the enhancement paragraphs were read.            Accordingly, we overrule

appellant’s first point.3

      Similarly, in her second and third points, appellant contends that the trial

court erred by not excluding, or at least instructing the jury to disregard, all the

testimony the State presented before the enhancement paragraphs were read.



      2
       … Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      3
      … See Tex. R. App. P. 33.1(a)(1); Heidelberg v. State, 144 S.W.3d 535,
537 (Tex. Crim. App. 2004); Ridge v. State, 855 S.W.2d 234, 235 (Tex.
App.—Fort Worth 1993, no pet.).

                                         4
The record shows, however, that appellant did not request that the trial court

exclude or instruct the jury to disregard the testimony before the enhancement

paragraphs were read.4 Consequently, appellant did not preserve these claims

for our review. We overrule appellant’s second and third points.5

                              IV. Chemist’s Testimony

         In her fourth point, appellant claims that the trial court violated her rights

under the Confrontation Clause by admitting testimony from one chemist about

laboratory results obtained by another chemist who did not testify at appellant’s

trial.

         The substances recovered during appellant’s March and July arrests were

analyzed at the Texas Department of Public Safety Laboratory in Garland. DPS

chemist Drew Fout personally analyzed the substances from the March arrest,

but another chemist from the same lab analyzed the substances recovered in

July. Fout testified at appellant’s trial, but the other chemist did not.

         Fout explained that he and the nontestifying chemist had used the same

methods to analyze the substances seized during the March and July arrests.



         4
      … See Dill v. State, 697 S.W.2d 702, 709 (Tex. App.—Corpus Christi
1985, pet. ref’d) (holding error preserved when defendant asked that evidence
heard before the plea be removed from the jury's consideration).
         5
     … See Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235,
238–39 (Tex. Crim. App. 2009).

                                            5
He testified that all chemists at the Garland DPS lab are trained the same way

and that part of his training had been devoted to observing the more

experienced nontestifying chemist, who had worked at the DPS lab for twenty-

five years.

      He testified further, that, as an expert, he was trained to evaluate the

work of other experts and then to draw his own conclusions. He had reviewed

the nontestifying chemist’s case notes and charts generated during her testing

of the substances seized during appellant’s July arrest before forming his own

opinion about the results of her work. Based upon his review, he opined that

the exhibits she analyzed—State’s Exhibits 22, 26, 27, and 31—all contained

methamphetamine. Further, he testified that the net weights of the exhibits

were 3.93, 0.20, 1.39, and 0.35 grams, respectively.

      Appellant objected to Fout’s testimony about the methods the

nontestifying chemist used and the weights of the exhibits. She also objected

to the admission of the drug exhibits—State’s Exhibits 22, 26, 27, and 31.

Appellant concedes, however, that she did not object to Fout’s testimony that

the composition of the exhibits contained methamphetamine.

      As a result of her failure to object to this evidence, her complaint that the

trial court erred by admitting Fout’s testimony that the exhibits contained




                                        6
methamphetamine is not preserved for our review. 6 Accordingly, we limit our

analysis to Fout’s testimony about the methods the nontestifying chemist

employed; the trial court’s admission of State’s Exhibits 22, 26, 27, and 31;

and Fout’s testimony about the weights of the substances in those exhibits.

      Appellant asserts that her inability to cross-examine the nontestifying

chemist who performed the testing rather than Fout violated her right to

confront witnesses under Crawford v. Washington.7 In Crawford, the United

States Supreme Court held that admitting a statement made by a nontestifying

declarant offends the Confrontation Clause of the Sixth Amendment if it was

“testimonial” when made and the defendant lacked a prior opportunity for

cross-examination.8 Thus, Crawford applies to a nontestifying declarant’s out-

of-court statements that are testimonial.

      Fout’s testimony about the methods used by the nontestifying chemist

is not governed by Crawford, however, because no out-of-court statement was

admitted through this part of his testimony. Rather, the testimony was Fout’s

in-court statement based upon his own personal knowledge acquired from


      6
       … See Tex. R. App. P. 33.1(a)(1); Melendez-Diaz v. Mass., 129 S. Ct.
2527, 2534 (2009) (“The right to confrontation may, of course, be waived,
including by failure to object to the offending evidence. . .”).
      7
          … 541 U.S. 36, 124 S. Ct. 1354 (2004).
      8
          … Id. at 68, 124 S. Ct. at 1374.

                                        7
having trained and worked at the DPS laboratory.          The Sixth Amendment

concerns at issue in Crawford, therefore, do not apply to this portion of Fout’s

testimony.

      Nor do those concerns apply to the baggies of controlled substances

admitted as State’s Exhibits 22, 26, 27, and 31 because Crawford applies only

to “statements.” A “statement” is defined by Texas Rule of Evidence 801(a)

as “(1) an oral or written verbal expression or (2) nonverbal conduct of a

person, if it is intended by the person as a substitute for verbal expression.” 9

Similarly, Federal Rule of Evidence 801(a) defines a statement as an “(1) an oral

or written assertion or (2) nonverbal conduct of a person if it is intended by the

person as an assertion.” 10 Baggies of controlled substances are not oral or

written verbal expressions, they are not oral or written assertions, and they are

not nonverbal conduct; therefore, they are not statements. Accordingly, the

trial court’s admission of the exhibits did not implicate appellant’s confrontation

rights.




      9
          … Tex. R. Evid. 801(a).
      10
           … Fed. R. Evid. 801(a).

                                        8
      Turning to Fout’s testimony about the weights of those exhibits, as

determined out-of-court by the nontestifying expert,11 we need not reach that

issue because other evidence of the drugs’ weights came in from other sources

without objection. Thus, the admission of this part of Fout’s testimony had no

effect on appellant’s conviction or her punishment. By the time Fout testified,

the State had already presented, without objection, evidence that the amount

appellant sold in July was at least four grams. Sergeant Jeff Davis testified

that the plan for the undercover operation was to purchase four grams of

methamphetamine from appellant. In addition, the UO testified that the deal

negotiated with appellant was to purchase four grams for $300.           Further,

during a telephone conversation recorded between appellant and CI2, appellant

told CI2 that she had four grams ready to sell for $300. The UO identified

State’s Exhibit 22 as the bag of methamphetamine that he had purchased from

appellant. He testified that he personally witnessed her weighing the amount




      11
        … Recently, the United States Supreme Court has held that a certificate
of a state laboratory analyst stating that material seized by police and
connected to a criminal defendant is cocaine of a certain quantity is
“testimonial” evidence subject to the demands of the Confrontation Clause as
set forth in Crawford. Melendez-Diaz, 129 S. Ct. at 2529. In Melendez-Diaz,
in a prosecution for drug trafficking, the state had submitted three “certificates
of analysis” showing the results of forensic testing performed on substances
seized from the defendant. Id at 2531. The analyst or analysts who prepared
the certificates did not testify at trial. See id.

                                        9
he bought from her and that the scale displayed 4.6 grams. Also, he testified

that, in addition to State’s Exhibit 22, he seized from appellant’s apartment

baggies of methamphetamine that he identified as State’s Exhibits 26, 27, and

31.   Sergeant Davis testified that, after appellant’s arrest, appellant’s son

pointed out a quantity of methamphetamine in appellant’s bedroom weighing

0.4 grams, which the sergeant identified at trial as State’s Exhibit 31. Thus,

even without Fout’s testimony, the State presented evidence showing that the

amount was over four grams. We hold, therefore, that Fout’s testimony as to

the weight of the substances seized in July had no effect on the jury’s

deliberations. 12 Appellant’s fourth point is overruled.

                        V. Sufficiency of the Evidence

      In her fifth, sixth, and fifteenth points, appellant asks us to review the

sufficiency of the evidence without certain evidence she claims should have

been excluded. In conducting sufficiency reviews in criminal cases, however,

we consider all evidence whether or not properly admitted.13




      12
       … See Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007);
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006), cert. denied,
549 U.S. 1344 (2007).
      13
      … See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999);
Johnson v. State, 967 S.W.2d 410, 411 (Tex. Crim. App. 1998).

                                       10
      With regard to appellant’s fifth and sixth points, the evidence was legally

and factually sufficient to show that the quantity of methamphetamine that

appellant sold to the UO was at least four grams.          Fout testified that the

amounts seized from appellant’s apartment during the July arrests and admitted

as State’s Exhibits 22, 26, 27, and 31 had a combined weight of over five

grams.14 In addition, other evidence showed that the methamphetamine seized

in July was at least four grams. The plan of the operation was to purchase four

grams of methamphetamine from appellant.           Appellant can be heard on a

recorded telephone call telling CI2 that she had four grams ready to sell. The

UO saw appellant weigh out 4.6 grams of methamphetamine and place it on the

desk in her bedroom. Appellant’s son pointed out to the arresting officers an

additional 0.4 grams of methamphetamine in appellant’s bedroom. We hold

that the evidence was legally and factually sufficient to show that appellant

possessed four or more grams. Points five and six are overruled.

      In her fifteenth point, appellant claims that there is no evidence linking her

to the March drug transaction. Appellant, however, ignores her confession,

admitted as State’s Exhibit 16, in which she stated:



      14
       … The total weight of the drugs recovered during the July arrest was
5.87 grams. State’s Exhibit 22 weighed 3.93, State’s Exhibit 26 weighed
0.20, State’s Exhibit 27 weighed 1.39, and State’s Exhibit 31 weighed 0.35
grams.

                                        11
      Jackie [Patterson] got in my car and we left to go and get the
      methamphetamine for [the CI]. I went over to Angie Lamb’s trailer
      that is located . . . in Flower Mound, Texas to see if she had the
      quarter ounce of methamphetamine. When I got to Angie’s she
      had about (1) ounce of methamphetamine, and she fronted me the
      1/4 ounce of methamphetamine for Jackie. Angie was expecting
      me to bring her back $275.00 as payment for the
      methamphetamine.
      . . . I put a little methamphetamine in a bag for me, and in a second
      bag for Jackie. I drove Jackie back to the 7-11 to meet with [the
      CI]. During the ride back to the 7-11[,] I gave Jackie the 1/4 ounce
      of methamphetamine to give to the [CI].

We hold that the evidence is both legally and factually sufficient to support

appellant’s conviction for the March drug sale. Point fifteen is overruled.

                      VI. Appellant’s Written Statement

      In her eighth and ninth points, appellant claims that her written statement

admitted as State’s Exhibit 16 was involuntary and violated article 38.22

because warnings related to an indigent accused’s rights to appointed counsel

do not appear on its face as required by the code of criminal procedure.

Appellant’s objection at trial, however, was that the statement violated article

38.22 because it was an oral statement. Because her points on appeal do not

comport with the objection raised at trial, we overrule appellant’s eighth and

ninth points.15



      15
       … See Heidelberg, 144 S.W.3d at 537; Bell v. State, 938 S.W.2d 35,
54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997); Greenwood v.
State, 948 S.W.2d 542, 549–50 (Tex. App.—Fort Worth 1997, no pet.);

                                       12
      In her tenth point, appellant claims that the trial court erred by not

instructing the jury to disregard her written statement if it found that appellant

had not been given the warnings required by code of criminal procedure article

38.22, section 2. Appellant concedes, however, that she did not request such

an instruction and that the trial court has no duty to give an instruction sua

sponte.      We hold, therefore, that the issue was not preserved, and

consequently, the trial court was not required to instruct the jury to disregard

the statement.16 We overrule appellant’s tenth point.

                         VII. Effectiveness of Counsel

      In her seventh and eleventh points, appellant alleges that her trial counsel

provided ineffective assistance of counsel.

      We apply a two-pronged test to ineffective assistance of counsel claims.17

First, appellant must show that counsel’s performance was deficient, which

requires showing that counsel made such serious errors that he was not


Bridges v. State, No. 02-07-00069-CR, 2008 WL 4052959, at *1 (Tex.
App.—Fort Worth Aug. 29, 2008, pet. ref’d) (mem. op., not designated for
publication).
      16
           … See Oursbourne v. State, 259 S.W.3d 159, 176 (Tex. Crim. App.
2008).
      17
        … Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

                                       13
functioning as the “counsel” guaranteed by the Sixth Amendment.18 Counsel’s

performance is deficient only if it fell below an objective standard of

reasonableness measured by prevailing professional norms.19 The record must

be sufficiently developed to overcome a strong presumption that counsel

provided reasonable assistance. 20 Our scrutiny of counsel’s performance must

be highly deferential, making every effort to eliminate the distorting effects of

hindsight.21

      Second, appellant must show that counsel’s deficient performance

prejudiced the defense; this requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial. 22 Appellant must show that

there is a reasonable probability that, but for counsel’s deficiency, the result of

the trial would have been different.23

      In a heading identifying her seventh point, appellant alleges that trial

counsel was ineffective for failing to object to Fout’s testimony that testing on


      18
           … Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      19
           … Id. at 688–89, 104 S. Ct. at 2065.
      20
      … Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
      21
           … Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
      22
           … Id. at 687, 104 S. Ct. at 2064.
      23
           … Id. at 694, 104 S. Ct. at 2068.

                                         14
the substance seized in July showed it to be methamphetamine. Apart from

the heading, appellant’s briefing devotes nothing more to the issue.

Accordingly, her point is inadequately briefed.24

      Moreover, even had appellant objected to Fout’s testimony that the

substance was methamphetamine, her objection would have been properly

overruled under what appellant concedes is the current state of the law in

Texas; that is, that one expert may testify as to his or her opinion based upon

the findings of another expert.25 Because the trial court properly would have

overruled the objection appellant faults her counsel for not raising, she cannot

show that counsel’s performance was constitutionally deficient.26 We overrule

appellant’s seventh point.

      In her eleventh point, appellant urges that her trial counsel rendered

ineffective assistance by failing to preserve points eight and nine, discussed

above, and by failing to request a jury instruction on the voluntariness of

State’s Exhibit 16 as urged in point ten.



      24
       … See Tex. R. App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710
(Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Grotti v. State,
209 S.W.3d 747, 778 (Tex. App.—Fort Worth 2006), aff’d, 273 S.W.3d 273
(Tex. Crim. App. 2008).
      25
           … See Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000).
      26
           … See Strickland, 466 U.S. at 687.

                                       15
      A claim of ineffective assistance of counsel must be firmly grounded in,

and supported by, the record.27 When the record is silent as to possible trial

strategies employed by defense counsel, we will not speculate on the reasons

for those strategies.28

      There is a substantial risk of failure when a claim of ineffective assistance

of counsel is brought on direct appeal. 29 “Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic

decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” 30

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.” 31 Appellant did not file a motion

for new trial to afford the trial court an opportunity to hold a hearing and inquire

into the reasons for trial counsel’s acts or omissions. Consequently, we cannot

determine whether counsel’s actions were grounded in sound trial strategy

      27
       … Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954,
955 (Tex. Crim. App. 1998).
      28
           … See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
      29
           … Thompson, 9 S.W.3d at 813.
      30
           … Bone, 77 S.W.3d at 833.
      31
       … Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth
2001, no pet.).

                                        16
because the record is silent as to possible trial strategies, and we will not

speculate on the reasons for those strategies.32 Nor is this a case where the

trial record alone is sufficient to support appellant’s claim that counsel was

ineffective. 33    Therefore, appellant has failed to meet the first prong of

Strickland. We overrule appellant’s eleventh point.

                        VIII. Informants and Accomplices

       In her twelfth and thirteenth points, appellant claims the trial court abused

its discretion by not instructing the jury on accomplice and informant testimony,

respectively.      No accomplice or informant testified at appellant’s trial.

Therefore, points twelve and thirteen are overruled.

                      IX. Recorded Telephone Conversation

       In her fourteenth point, appellant claims that the trial court abused its

discretion by admitting State’s Exhibit 1, a recording of a telephone

conversation between the CI and Jackie Patterson because the recording was

hearsay. On the recording, the CI and Patterson can be heard discussing their

plans for the CI to pick up Patterson and take him to appellant’s place of

employment.




       32
            … See Jackson, 877 S.W.2d at 771; Patterson, 46 S.W.3d at 306.
       33
      … See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005);
Thompson, 9 S.W.3d at 813.

                                        17
      A statement by a co-conspirator of a party during the course and in

furtherance of the conspiracy that is offered against a party is not hearsay.34

The record shows that Patterson and appellant had agreed to a drug transaction

and that appellant delivered to Patterson a quarter ounce of methamphetamine.

Patterson, therefore, was a party to the offense. His out-of-court statements

made in furtherance of the conspiracy to commit the offense were, therefore,

not hearsay.

      As to the CI’s statements admitted in State’s Exhibit 1, our review of

State’s Exhibit 1 reveals that it recorded the CI discussing her plans with

Patterson to pick him up and drop him off in Lewisville. Under the rules of

evidence, a statement of a declarant’s then existing plan is an exception to the

hearsay rule.35     We hold that the trial court did not abuse its discretion by

overruling appellant’s objections to State’s Exhibit 1.       Point fourteen is

overruled.




      34
           … Tex. R. Evid. 801(e)(2)(E).
      35
           … Tex. R. Evid. 803(3).

                                           18
                               X. Conclusion

     Having overruled all of appellant’s points, we affirm the judgment.


                                               PER CURIAM


PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 30, 2009




                                    19
