             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
    ___________________________

         No. 02-17-00420-CR
    ___________________________

SAMUEL HERSCHEL CLAUDER, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 78th District Court
        Wichita County, Texas
       Trial Court No. 57,648-B


 Before Pittman, Birdwell, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                             MEMORANDUM OPINION

       This is an appeal of the trial court’s judgment adjudicating Samuel Herschel

Clauder guilty of possession of marijuana. After revoking his community supervision

and adjudicating his guilt, the trial court sentenced Clauder to two years’ confinement

and imposed a fine of $10,000. Clauder complains that the trial court erred by

adjudicating his guilt on the basis of urinalysis evidence that did not satisfy the

requirements of Texas Rule of Evidence 702. Because Clauder has failed to preserve

his complaint for our review, we affirm the trial court’s judgment.

                              Procedural Background

       Clauder pleaded guilty to the offense of possession of marijuana in an amount

of 2,000 pounds or less but more than 50 pounds.             The trial court deferred

adjudicating his guilt and placed Clauder on community supervision for a period of

ten years.

       The trial court imposed various conditions of community supervision. One

condition required that Clauder abstain from the use or possession of marijuana and

provide urine samples as requested to be tested for the presence of marijuana.

Alleging that Clauder had subsequently submitted a urine sample that tested positive

for THC, the State moved to revoke Clauder’s community supervision and sought

adjudication of his guilt.

       During the hearings on its motion, the State offered evidence that Clauder had

been administered and failed a drug test on April 20, 2017, while he was on

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community supervision. Clauder’s community-supervision officer, Michelle Green,

testified that Clauder had reported to her on April 25, 2017. During their meeting,

Clauder admitted to Green that he had smoked marijuana. Green also saw Clauder

sign a drug history form wherein he admitted to smoking marijuana on April 18, 2017,

in Salem, Oregon.1 Later under cross-examination, Green referenced the fact that

Clauder had failed a urinalysis test administered on April 20, 2017.

      The trial court admitted into evidence a recording that identified Clauder by

name as a guest speaker on the “Marijuana Compassion Common Sense” radio show.

During that show, Clauder affirmatively stated that he had informed his community-

supervision officer that he had smoked cannabis and would fail a drug test and that he

had then failed a drug test on April 20, 2017. The State did not offer into evidence a

written report regarding Clauder’s urinalysis test or testimony from any person who

obtained or tested the sample Clauder provided.

                                   Point for Review

      In his sole point, Clauder complains that the trial court erred by adjudicating

his guilt because in seeking to admit evidence of Clauder’s urinalysis result, the State


      1
       Clauder had previously shown another community-supervision officer, Laurel
Lambert, a validly issued, but expired, medical-marijuana card. Lambert testified that
even if Clauder had permission to travel, the terms and conditions of his Texas
community supervision barred him from smoking marijuana in any state that
otherwise permitted the smoking of marijuana. Beth Romm, the Assistant Director
of the Wichita County Probation Department, verified that a Texas probationer is
considered to be bound by the conditions imposed in Texas.


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failed to comply with Rule of Evidence 702 and the ruling in Kelly v. State, 824 S.W.2d

568, 573 (Tex. Crim. App. 1992). Rule 702 permits a witness who is qualified as an

expert by knowledge, skill, experience, training, or education to testify in the form of

an opinion or otherwise if the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to determine a fact

in issue. Tex. R. Evid. 702. In Kelly, the Court of Criminal Appeals determined that a

proponent of novel scientific evidence is required to prove the relevance of such

evidence by clear and convincing evidence before such evidence is admitted for the

fact-finder’s consideration, subject to a Rule 403 weighing of probative value against

prejudicial factors. See Tex. R. Evid. 403, 702; Kelly, 824 S.W.2d at 573.

      The State counters that Clauder has failed to preserve this point of error for

our consideration because he did not rely on Rule 702 as the basis for his objection to

the urinalysis evidence. In the alternative, the State contends that such error, if any,

was harmless because Clauder admitted both publicly and in writing that he had

smoked marijuana on April 18, 2017, while he was on community supervision.

                                 Preservation of Error

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). A party must object as soon as

the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1)(A); see Lackey v.

                                            4
State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing policies underlying

the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.

2002) (“We have consistently held that the failure to object in a timely and specific

manner during trial forfeits complaints about the admissibility of evidence. This is

true even though the error may concern a constitutional right of the defendant.”

(citations omitted)). Without objection, Green testified under direct examination by

the State that Clauder had admitted that he had smoked marijuana and during cross-

examination, Green acknowledged that Clauder had failed his urinalysis test. Clauder

did not raise any objection to Green’s testimony regarding his urinalysis result;

therefore, Clauder has failed to preserve his Rule 702 complaint for our review.

                                    Harmless Error

      If this issue had been preserved, it is apparent that any error in permitting

Green to testify regarding Clauder’s urinalysis test results would have been harmless.

“A criminal conviction should not be overturned for non-constitutional error if the

appellate court, after examining the record as whole, has fair assurance that the error

did not influence the [fact-finder], or had but a slight effect.” See Tex. R. App. P.

44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Moreover, the erroneous admission

of evidence is cured where the same evidence comes in elsewhere without objection.

Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also Anderson v. State,

717 S.W.2d 622, 628 (Tex. Crim. App.1986) (“Inadmissible evidence can be rendered

                                            5
harmless if other evidence at trial is admitted without objection and it proves the same

fact that the inadmissible evidence sought to prove.”).

      The trial court had before it a recording of Clauder admitting that he had

smoked marijuana and had failed his drug test, as well as Clauder’s written admission

that he had smoked marijuana while on probation.            Green’s limited testimony

regarding Clauder’s urinalysis test result added little, if any, weight to the evidence

under the trial court’s consideration given Clauder’s own admissions that he smoked

marijuana in violation of the conditions of his community supervision. Under the

circumstances, we have a fair assurance that the challenged evidence did not influence

the fact-finder or had but slight effect. We overrule Clauder’s sole point.

                                      Conclusion

      We affirm the trial court’s judgment.


                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 4, 2019




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