
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


M E M O R A N D U M   O P I N I O N

		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
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
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,
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. 
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
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.
		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

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

