                                     NO. 07-02-0488-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                     MAY 26, 2004
                            ______________________________

                                TIMOTHY ERNEST REBER,

                                                                   Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

           FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                    NO. 8872; HON. WILLIAM D. SMITH, PRESIDING
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Appellant Timothy Ernest Reber challenges his conviction of possession of a

controlled substance of less than one gram. In doing so, he alleges in eight issues that 1)

the trial court erred in denying his motion for new trial, 2) the trial court erred in denying his

motion for continuance, 3) the trial court erred in admitting evidence without proof of the

chain of custody, 4) the trial court erred by forcing him to trial without ten days to prepare,

5) the trial court improperly dismissed his court appointed counsel without his consent and

without a hearing, and 6) the evidence is legally and factually insufficient to sustain the

verdict. We overrule the issues.
                                       Background

       Appellant originally retained Richard Todd to represent him in his defense. On May

29, 2002, appellant wrote a letter to the court expressing discontent with Todd’s

representation and asking the court to appoint an attorney to represent him. On June 10,

2002, the court allowed Richard Todd to withdraw and appointed Sonja Westerfield as

counsel for appellant.    On October 29, 2002, Sonja Westerfield filed a motion for

continuance alleging she needed more time to prepare for trial. The motion was denied by

written order signed on October 30, 2002. Furthermore, in that order, the trial court set the

cause for trial to begin on November 18, 2002.

       On the sixth day of November, Westerfield filed a supplemental motion for

continuance. A hearing was held on that motion the same day. At the hearing, Westerfield

recited numerous personal problems that prevented her from being able to prepare for trial

and stated that appellant would not receive effective assistance of counsel if she did not

receive a continuance. The court denied the motion for continuance but allowed her to

withdraw, appointed David Scott to represent appellant, and announced that trial would

begin on November 18th. At the same hearing, appellant stated that he was speaking to

another attorney about representing him at trial. On the day of trial, Walt Weaver, who had

subsequently been retained by appellant, sought a continuance on the basis he had been

retained on November 12th and needed more time to prepare for trial. The court denied

the motion, and trial commenced as scheduled.

       The State presented evidence by way of the arresting officer Steven Lewis, Roy

Murphy (supervisor of the Texas Department of Public Safety Field Crime Laboratory), and



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one rebuttal witness. Appellant testified in his own defense. The jury found appellant guilty

and sentenced him to 20 years imprisonment.

                        Issue One - Denial of Motion for New Trial

       In his first issue, appellant complains of the trial court’s denial of his request for a

new trial on the basis of newly discovered evidence. We overrule the issue.

       A new trial must be granted to an accused where material evidence favorable to him

has been discovered since trial. TEX . CODE CRIM . PROC . ANN . art. 40.001 (Vernon Supp.

2004). The following requirements must be met to entitle one to a new trial: 1) the newly

discovered evidence was unknown or unavailable to the movant at the time of trial, 2) the

movant’s failure to discover or obtain the evidence was not due to lack of diligence, 3) the

evidence is admissible and is not merely cumulative, corroborative, collateral or

impeaching, and 4) the new evidence is probably true and will probably bring about a

different result. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002). The trial

court’s ruling on a motion for new trial based on newly discovered evidence is reviewed for

an abuse of discretion. Id. at 37.

       Appellant contends there is newly discovered evidence because, although Deputy

Lewis testified he did not call for any assistance from other officers, there were two other

officers (Bob Smith and Mark Fuentes) present at the scene prior to appellant’s arrest.

There was no showing by either affidavit or testimony as to what the officers would have

stated if they had testified at trial.

       Appellant admits that the names of the officers were disclosed to him prior to trial,

but says they were only listed as “evidence” officers. However, appellant also testified at

trial that two other officers were present prior to his arrest and that one of them was Mark

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Fuentes. Thus, appellant has failed to show that the presence of these officers was

unknown to him at the time of trial. Villarreal v. State, 79 S.W.3d 806, 814 (Tex. App.–

Corpus Christi 2002, pet. ref’d) (holding that when the defendant knows of a witness and

fails to inform his attorney, the trial court does not err by overruling a motion for new trial

based on newly discovered evidence).

        Further, even if appellant had shown that the presence of these two officers was

unknown to him and his failure to discover them was not due to lack of diligence, we would

remain obligated to uphold the trial court’s decision. This is so because appellant did not

provide any information as to what the officers would have testified. So, the trial court had

no basis upon which to determine whether the evidence was cumulative, corroborative,

collateral, or impeaching or if it was probably true and would have caused a different result.

Therefore, denying the new trial on this ground was not an abuse of discretion.

                          Issue Two - Motion for Continuance

       In his second issue, appellant contends the trial court erred in denying his motion

for continuance. We overrule the issue.

       A criminal action may be continued on the written motion of the defendant upon

sufficient cause shown for only so long as is necessary. TEX . CODE CRIM . PROC . ANN . art.

29.03 (Vernon 1989). The granting or denial of such a motion is within the discretion of the

trial court. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000), cert. denied, 531

U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001); Heiselbetz v. State, 906 S.W.2d 500,

511 (Tex. Crim. App. 1995).       To find an abuse of discretion in refusing to grant a

continuance, it must be shown that the defendant was prejudiced by his counsel’s



                                              4
inadequate preparation time. Heiselbetz v. State, 906 S.W.2d at 511; In re Fain, 83 S.W.3d

885, 888 (Tex. App.–Austin 2002, no pet.).

       All motions for continuance must be sworn to by a person with personal knowledge

of the facts relied upon. TEX . CODE CRIM . PROC . ANN . art. 29.08 (Vernon 1989). Appellant

filed a written motion for continuance on the day of trial but no one swore to the veracity of

the allegations contained in it. A motion for continuance which is not sworn to by a person

with personal knowledge of the facts relied upon to justify the continuance preserves

nothing for appellate review. Dixon v. State, 64 S.W.3d 469, 472 (Tex. App.– Amarillo

2001, pet. ref’d) (holding that a motion for continuance not in writing and not sworn to

preserves nothing for review); Rodriguez v. State, 903 S.W.2d 405, 408 (Tex. App.–

Texarkana 1995, pet. ref’d) (holding that when a motion for continuance is not sworn to,

nothing is presented for review). Therefore, appellant has failed to preserve error.

                             Issue Three - Chain of Custody

       Appellant argues in his third issue that the trial court improperly admitted into

evidence a plastic bag containing the controlled substance in question. Admitting the bag

was improper, according to appellant, because the State failed to prove the chain of

custody. We overrule the issue.

       Appellant’s complaint is that Deputy Lewis failed to place an identifying mark on the

bag which contained a fungible item, i.e. a controlled substance, and then placed the bag

in an unsealed envelope which was later opened to remove the bag for testing. The

requirement of authentication or identification to render an exhibit admissible is satisfied

if the evidence is sufficient to support a finding that the matter is what its proponent claims.

TEX . R. EVID . 901(a). Thus, the State is only required to make a showing to the trial court

                                               5
that the matter in question is what it purports to be. Garner v. State, 939 S.W.2d 802, 805

(Tex. App.–Fort Worth 1997, pet. ref’d). Without evidence of tampering, questions of the

custody of a substance go to its weight and not its admissibility. Lagrone v. State, 942

S.W.2d 602, 617 (Tex. Crim. App.), cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L.Ed.2d

235 (1997).

          We review the trial court’s admission of evidence under an abuse of discretion

standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996), cert. denied, 520

U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). The trial court does not abuse its

discretion when the evidence admitted is based on a belief that a reasonable juror could

find the evidence has been authenticated or identified. Pondexter v. State, 942 S.W.2d 577,

586 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42

(1997).

       Deputy Lewis testified that 1) he seized a plastic bag which he believed contained

drugs (State’s Exhibit 2), 2) sealed it in an evidence envelope (State’s Exhibit 1), 3) put it

in the trunk of his patrol car, 4) transported it to the sheriff’s office, 5) removed the

substance from the envelope and performed a field test on it, 6) put the plastic bag back

in the evidence envelope upon which he wrote his name, appellant’s name, the date and

time, and a description of what was contained in the envelope, and 7) secured the envelope

in an evidence locker. Roy Murphy testified that he received a sealed envelope (State’s

Exhibit 3) in the mail from Deputy Lewis in which there was State’s Exhibit 1 and State’s

Exhibit 2, and he wrote his laboratory case number (which refers to a case involving

appellant) and initials on the plastic bag which he identified at trial.



                                               6
       Even though Deputy Lewis did not place an identifying mark on the plastic bag itself,

he did put identification upon the envelope in which the plastic bag was placed after field

testing the substance. That is sufficient to identify the evidence. See Gill v. State, 57

S.W.3d 540, 546-47 (Tex. App.–Waco 2001, no pet.) (holding that a sufficient chain of

custody was established when the officer testified he took possession of a bag and

handgun, placed them in the floorboard of his patrol car, took the items to his office, filled

out an inventory card, put the items in his filing cabinet, and delivered them the next day

to the property officer who placed them in a locked cabinet); Simmons v. State, 944 S.W.2d

11, 13 (Tex. App.–Tyler 1996, pet. ref’d) (holding the evidence established what the State

said it was when the officer testified she seized rocks of cocaine, took them to her office,

placed them in an evidence envelope, put an identification mark on the envelope, placed

it in the property room, and another officer took the envelope from the property room to the

laboratory).

       Once the evidence establishes the chain of custody into the laboratory, any further

objection goes to the weight of the evidence. Menefee v. State, 928 S.W.2d 274, 280 (Tex.

App.–Tyler 1996, no pet.). Absent affirmative evidence of commingling or tampering,

speculative or theoretical breaches in the chain of custody do not affect admissibility. Hall

v. State, 13 S.W.3d 115, 120 (Tex. App.–Fort Worth 2000, pet. dism’d improvidently

granted); Cuba v. State, 905 S.W.2d 729, 735 (Tex. App.–Texarkana 1995, no pet.).

Thus, the trial court did not abuse its discretion in finding the evidence to be that which the

State asserted it to be.

                 Issues Four, Five, and Six - Substitution of Counsel



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       Via his next three issues, which he argues together, appellant complains of the trial

court forcing his retained counsel to trial with less than ten days preparation time and the

court’s dismissal of his court-appointed counsel without his permission and without a

hearing in his presence. We overrule the issues.

       Appointed counsel is entitled to ten days time to prepare for trial. TEX . CODE CRIM .

PROC . ANN . art.1.051(e) (Vernon Supp. 2004). However, this right does not extend to

retained counsel. Harville v. State, 591 S.W.2d 864, 869 (Tex. Crim. App. 1979); Bledsoe

v. State, 754 S.W.2d 331, 335 (Tex. App.–Houston [14th Dist.] 1988), vacated on other

grounds, 758 S.W.2d 786 (Tex. Crim. App. 1988). Further, there is no abuse of discretion

in failing to grant a motion for continuance when retained counsel is hired by a defendant

less than ten days prior to trial when the defendant has previously been represented by

counsel. See Gilreath v. State, 157 Tex. Crim. 526, 251 S.W.2d 540, 541 (1952). Appellant

had counsel (David Scott) appointed to represent him more than ten days before trial.

Thus, even though he retained counsel only six days before trial, the trial court did not err

in requiring appellant to go to trial on the scheduled date.

       Appellant also contends the trial court should not have removed his appointed

counsel Sonja Westerfield (without his consent or presence) and replaced her with David

Scott. It is clear that a trial judge may not discharge court-appointed counsel over the

objection of the defendant and his attorney when the removal is not justified. See Stearnes

v. Clinton, 780 S.W.2d 216, 221 (Tex. Crim. App. 1989); Springer v. State, 940 S.W.2d

322, 323 (Tex. App.–Dallas 1997, no pet.). Here, the trial court orally pronounced its intent

to substitute court-appointed counsel at the hearing on Westerfield’s motion for continuance

when she stated she could not provide effective representation without a continuance in

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spite of the fact she had been appointed over four months earlier. The reporter’s record

of that hearing shows appellant’s presence. Not only did appellant withhold objection but

he also stated to the court that he was currently talking to another lawyer about

representation. Westerfield also did not object. Under these circumstances, appellant has

waived error as to the court’s substitution of counsel. Springer v. State, 940 S.W.2d at 324

(holding because neither the defendant nor his counsel objected to the court appointing

another attorney to represent the defendant at his probation revocation hearing, the

defendant waived his complaint); Emerson v. State, 756 S.W.2d 364, 369 (Tex.

App.–Houston [14th Dist.] 1988, pet. ref’d) (holding the defendant waived any complaint

regarding the trial court’s action in removing one attorney and replacing him with another

when he informed the judge he accepted the new counsel).

                Issues Seven and Eight - Sufficiency of the Evidence

       Via his final two issues, appellant contests the legal and factual sufficiency of the

evidence to show he knowingly and intentionally possessed a controlled substance. We

overrule the issues.

       The applicable standards are well settled and fully discussed in Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex.

Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v.

State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the litigants to those opinions.

       The record reveals that on November 11, 2001, appellant drove to an Allsup’s store

west of Borger to buy some Sprite. Deputy Lewis had also driven to the same store to buy

a newspaper and saw appellant drive up. Lewis noticed that appellant’s car did not have

a registration sticker or inspection sticker. He then approached appellant and asked for

                                             9
identification. Upon receiving appellant’s identification, Lewis discovered that appellant had

six outstanding traffic warrants for which he placed appellant under arrest. In his search

conducted incident to the arrest, Lewis discovered a plastic bag containing what was later

determined to be methamphetamine in appellant’s wallet. The wallet was being carried on

appellant’s person. Appellant testified that the items in the wallet were his except for the

methamphetamine.

       Roy Murphy, the chemist, indicated on his report that there was a trace amount of

methamphetamine because the amount was less than what is considered a usable amount

and he normally only weighs amounts that are at least a hundreth of a gram. He estimated

there was between four and eight milligrams of methamphetamine. Murphy used about

half the substance for his test but there was still residue remaining.

         A person commits the offense of possession of a controlled substance if he

knowingly or intentionally possesses the substance. TEX . HEALTH & SAFETY CODE ANN .

§481.115 (Vernon 2003). To secure a conviction for this offense, the State must prove that

the defendant exercised care, custody, or control over the drugs, was conscious of his

connection with the drugs, and knew the substance to be drugs. Brown v. State, 911

S.W.2d 744, 747 (Tex. Crim. App. 1995); Park v. State, 8 S.W.3d 351, 352 (Tex. App.–

Amarillo 1999, no pet.). There is no requirement that a person possess a usable amount

to be convicted of possession of a controlled substance. Joseph v. State, 897 S.W.2d 374,

376 (Tex. Crim. App. 1995).

       In this instance, there was testimony that the substance was visible. For example,

it was seen by the officer when he removed the baggy from appellant’s wallet. However,

there is no testimony that the substance was incapable of being measured but only that the

                                             10
chemist had not done so. The chemist’s testimony that he estimated the weight to be

between four and eight milligrams and residue was left after testing along with the

testimony that the methamphetamine was visible and found on appellant’s person in his

wallet is some evidence upon which a rational jury could conclude, beyond reasonable

doubt, that appellant possessed a controlled substance as charged. Victor v. State, 995

S.W.2d 216, 219-21 (Tex. App.–Houston [14th Dist.] 1999, pet. ref’d) (holding the evidence

was sufficient to prove knowing possession when cocaine was found in a crack pipe in the

defendant’s pants pocket and it was visible and measurable even though the chemist did

not measure it); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.–Houston [1st Dist.] 1994,

pet. ref’d) (holding the evidence was sufficient to prove knowing possession when a tube

of cocaine was found in the defendant’s pants pocket, a residue was visible, and the

chemist measured the cocaine at .33 milligrams). Further, after reviewing the entire record,

we do not conclude that the verdict is clearly wrong or manifestly unjust.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Per Curiam
Do not publish.




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