                              NUMBER 13-07-324-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DARRIN EVAN SCOTT A/K/A DARRIN WADE EVANS,                                    Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


  On appeal from the 329th District Court of Wharton County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       Appellant, Darrin Evan Scott a/k/a Darrin Wade Evans, was convicted of the felony

offense of delivery of a controlled substance. See TEX . HEALTH & SAFETY CODE ANN . §

481.112(a) (Vernon 2003); id. § 481.102(3)(D) (Vernon Supp. 2007). The conviction

included an enhancement for delivery of a controlled substance within 1,000 feet of a

school. Id. § 481.134(c)(1) (Vernon Supp. 2007). By three issues, Scott argues that the

evidence was factually insufficient to support the conviction for the underlying offense and
the enhancement, and that the trial court erred in admitting a certificate of analysis

evaluating the controlled substance. We affirm.

                                      I. Background

       On January 6, 2006, Detective Grady Smith received a complaint of narcotics

activity in the parking lot of the Caney Apartments in Wharton, Texas, and he investigated

that complaint. Smith initially began his surveillance of the Caney Apartments' rear parking

lot from behind a privacy fence of an adjacent property. The owner of that property invited

Smith inside his home to get a "better view" from the upstairs windows.

       Smith testified the weather was clear, sunny, and warm. While there are trees

between the window and the parking lot, Smith also testified that in January, there was little

foliage on the trees. Smith saw a Cadillac parked with the passenger door opened. From

his vantage point, Smith could see inside the passenger door of the car. Ruebin Wiley was

at the passenger door, apparently working on the speakers and wiring inside the car.

Smith saw Scott approach the car. Smith testified he had no difficulty recognizing Scott

or Wiley with the naked eye, the distance being 40-45 yards. Smith also testified he could

hear the two talking.

       Smith saw that Scott had something in his hands, and with his binoculars, he was

able to see that Scott had a small blue digital scale. Smith then saw Scott place the scale

on the passenger seat of the car. Scott placed two items—one blue and the other

white—on the scale. Wiley picked up the items off the scale and handed Scott some

money. Smith witnessed Wiley place the items in his right breast pocket. Smith testified

that in his experience, what he had seen was consistent with drug activity.

       Smith then contacted Officer Jeremy Eder, who was staged nearby, and instructed

him to immediately arrest Wiley for possession. Smith told Eder where Wiley had put the

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items he purchased from Scott. Smith kept Wiley under observation until Eder completed

the arrest. Eder, upon arresting Wiley, found 0.9 grams of what appeared to be cocaine

in Wiley's right breast pocket. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(b)

(possession of less than one gram is a state jail felony). Scott was arrested later, was

indicted for delivery of a controlled substance within 1,000 feet of a school, and was tried

before a jury.

       At trial, Wiley testified that on January 6, he "bought some drugs" from Scott. He

stated that he bought about $30 worth of cocaine and that, at that time, he thought it

weighed .9 ounces. Wiley identified State's Exhibit 3, the baggies of cocaine seized from

him when he was arrested, as the items he had purchased from Scott. Wiley also testified

that once he received the drugs, he placed them in his jacket pocket, corresponding to

where Smith saw him place the items and where Eder found them when he arrested Wiley.

       The evidence seized from Wiley was tested at the Wharton Police Department and

also at the Texas Department of Public Safety Laboratory in Houston.             Both tests

confirmed the substance contained cocaine. At trial, the State sought to admit a certificate

of analysis from the D.P.S. Crime Laboratory, certifying the test results. Defense counsel

objected on the grounds that admitting the certificate denied Scott his right to confront and

cross-examine the chemist who conducted the tests. See U.S. CONST . amend. VI. The

State responded that it had complied with article 38.41 of the Texas Code of Criminal

Procedure by filing the certificate timely and by faxing a copy to defense counsel, and it

provided the court with a fax report showing the certificate had been faxed to Scott's

attorney. See TEX . CODE CRIM . PROC . ANN . art. 38.41 (Vernon 2005). Defense counsel

reiterated his objections on Sixth Amendment grounds, "in spite of their filing it and giving

[him] a fax.” The trial court, however, overruled Scott’s objection and admitted the

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certificate.

       Smith testified at trial that he estimated the distance from the location where the

drug buy took place to Hopper Elementary School to be well within 1,000 feet. He also

testified that when he measured the distance to confirm his estimate, he used a laser

range finder, and the distance measured was less than 700 feet, going around some

obstacles.

       Scott was convicted of delivery of a controlled substance in a drug-free Zone, or

within 1,000 feet of a school. TEX . HEALTH & SAFETY CODE ANN . § 481.134(c)(1). He was

sentenced to fifteen years in the Texas Department of Criminal Justice-Institutional

Division.

                                       II. Discussion

       Scott raises three issues for our review. By his third issue, Scott argues that the trial

court erred by admitting the certificate of analysis. By his first issue, he argues that the

evidence presented at trial was factually insufficient to support his conviction for delivery

of a controlled substance. By his second issue, he argues that the evidence presented at

trial was factually insufficient to support the enhancement for delivery of a controlled

substance in a drug-free zone.

A.     Certificate of Analysis

       Scott argues that the trial court erred in admitting the Certificate of Analysis from the

Texas D.P.S. Crime Laboratory because (1) there is no "competent evidence" that the

report was delivered to defense counsel in a timely manner, see TEX . CODE CRIM . PROC .

ANN . art. 38.41 § 4 (Vernon 2005); and (2) admitting the report denied him of his rights

under the Sixth Amendment to the United States Constitution and article 1.05 of the Texas

Code of Criminal Procedure to cross-examine the chemist who performed the analysis.

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See U.S. CONST . amend. VI; TEX . CODE CRIM . PROC . ANN . art. 1.05 (Vernon 2005).

       First, Scott argues that there is “no evidence” that he received timely notice of the

certificate of analysis, thus precluding him from timely objecting to the use of the certificate

at trial. Texas Code of Criminal Procedure article 38.41, section four, provides:

       Not later than the 20th day before the trial begins in a proceeding in which
       a certificate of analysis under this article is to be introduced, the certificate
       must be filed with the clerk of the court and a copy must be provided by fax,
       hand delivery, or certified mail, return receipt requested, to the opposing
       party. The certificate is not admissible under Section 1 if, not later than the
       10th day before the trial begins, the opposing party files a written objection
       to the use of the certificate with the clerk of the court and provides a copy of
       the objection by fax, hand delivery, or certified mail, return receipt requested,
       to the offering party.

TEX . CODE CRIM . PROC . ANN . art. 38.41 § 4. Initially, we must address whether this alleged

error has been preserved for our review.

       The record contains an objection to the admissibility of the report. However, the

sole articulated basis for the objection made at trial was that the court was denying Scott

the opportunity to cross-examine the chemist who performed the analysis. Scott did not

object to the admissibility of the certificate based on the lack of "competent evidence of

delivery" of the certificate at trial. It is well settled that the appellant’s issue on appeal must

comport with the objection made at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex.

Crim. App. 1995). Scott failed to preserve his argument regarding the timely delivery of the

certificate by failing to make an objection at trial. Id.

       Scott did, however, object that admitting the certificate denied him the right to

confront the chemist who analyzed the alleged cocaine. The Sixth Amendment to the

United States Constitution provides that ““[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST . amend.

VI. The Sixth Amendment “bars the admission of testimonial statements of a witness who

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does not appear at trial unless the witness is unavailable to testify and the defendant had

a prior opportunity to cross-examine him.” Deener v. State, 214 S.W.3d 522, 525 (Tex.

App.–Dallas 2006, pet. ref'd) (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)).

       While Scott may be correct that the certificate is testimonial in nature, requiring that

the chemist’s analysis be tested by cross-examination, see Deener, 214 S.W.3d at 526,

his objection was untimely and waived his right to require the State to produce the chemist

at trial. Article 38.41, section one provides:

       A certificate of analysis that complies with [article 38.41] is admissible in
       evidence on behalf of the state or the defendant to establish the results of
       a laboratory analysis of physical evidence conducted by or for a law
       enforcement agency without the necessity of the analyst personally
       appearing in court.

TEX . CODE CRIM . PROC . ANN . art. 38.41 § 1. Section two further provides, “This article does

not limit the right of a party to summon a witness or to introduce admissible evidence

relevant to the results of the analysis.” Id. art. 38.41 § 2. In order to require the State to

produce the chemist at trial to testify, section four imposes a requirement that the

defendant file a written objection to the use of the certificate “not later than the 10th day

before the trial begins.” Id. art. 38.41 § 4. Scott did not object to the admissibility of the

certificate until the day of trial, which is too late. Id. Nor did he subpoena the chemist

himself, as was his prerogative under the statute. Id. art. 38.41 § 2.

       Texas courts have held that there are three categories of rights: (1) systemic (or

absolute) requirements, (2) waivable-only rights, and (3) forfeitable rights. Mendez v.

State, 138 S.W.3d 334, 340-41 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275,

278-79 (Tex. Crim. App. 1993). Most rights fall into the third category. See Deener, 214

S.W.3d at 527. Forfeitable rights are “typical evidentiary and procedural rules that are

implemented only when requested.” Id. These rights must be preserved by a timely and

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specific objection in the trial court. Id. (citing Mendez, 138 S.W.3d at 341-42). Even

constitutional rights may be forfeited if not timely asserted by the defendant. Id. The right

to confront witnesses is such a right. Id. There is nothing in Crawford that indicates

otherwise. Id.

       It is apparent from the record that the State's report was timely filed, and the State

tendered a receipt indicating the certificate of analysis had been successfully faxed to

defense counsel. Scott, upon receipt of the fax, had the opportunity to object to the

certificate of analysis in writing—thus preserving his right to confront and cross-examine

the chemist—but he did not. By failing to object timely or subpoena the witness himself,

Scott forfeited his right to confront and cross-examine the analyst. Id. Accordingly, we

overrule Scott’s third issue.

B.     Factual Sufficiency of the Evidence

       Scott argues that the evidence presented at trial was factually insufficient to support

his conviction for delivery of a controlled substance and to support the enhancement for

committing the offense in a drug-free zone. Three basic rules guide our inquiry when

conducting a factual-sufficiency analysis. Lancon v. State, 253 S.W.3d 699, 704 (Tex.

Crim. App. 2008). “First, the court of appeals must be cognizant of the fact that a jury has

already passed on the facts and must give due deference to the determinations of the jury.”

Id. at 705.   While we may not agree with the jury’s decision, we must “afford the

appropriate deference in order to avoid substituting [our] judgment for that of the jury.” Id.

Second, if we determine that the evidence is factually insufficient, we must explain

precisely why. Id. Third, we must “review all of the evidence in a neutral light, as opposed

to a legal-sufficiency review in which the evidence is viewed in the light most favorable to

the verdict.” Id. We will reverse for factual insufficiency of the evidence if “the evidence
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supporting the verdict, though legally sufficient, is nonetheless too weak to support it” or

if, “when considering conflicting evidence, the jury's verdict is against the great weight and

preponderance of the evidence.” Id.

          1.    Delivery of a Controlled Substance

          First, Scott argues that we should not consider Wiley’s testimony. He argues that

the testimony is unreliable because: (1) Wiley was mistaken about some of the details of

the day; (2) Wiley has a pending charge of possession of a controlled substance, as well

as a pending bond forfeiture; (3) Wiley would say anything the State wanted him to in order

to benefit himself; and (4) Wiley admitted using marihuana and beer on the day of his

arrest.

          With respect to the pending charges against Wiley for drug possession, which arise

from the events leading up to Scott’s arrest, Scott appears to be making an accomplice

witness argument. He does not explicitly argue, however, that without Wiley's testimony,

there is insufficient corroborative evidence to connect Scott to the crime. See TEX . CODE

CRIM . PROC . ANN . art. 38.14 (Vernon 2005). Nevertheless, we find there is sufficient

evidence to connect Scott to the crime.

          Upon review of the record, Wiley's testimony regarding the drug buy is corroborated

by the testimony of police officers Smith and Whitlock, as well as the certificate of analysis.

This Court has held that "while the accused's mere presence in the company of the

accomplice or informant before, during, and after the commission of the offense is

insufficient by itself to corroborate accomplice testimony, evidence of such presence,

coupled with other suspicious circumstances, may tend to connect the accused to the

offense." McAfee v. State, 204 S.W.3d 868, 871 (Tex. App.–Corpus Christi 2006, pet.

ref'd) (en banc); see also Adams v. State, 180 S.W.3d 386, 415 (Tex. App.–Corpus Christi

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2005, no pet.).

       The record contains evidence, other than Wiley's accomplice testimony, that the

officers had received information that drug activity was taking place at the location in

question. The actions of Scott and Wiley, as observed by Smith, were consistent with drug

activity, including Scott's use of a scale to weigh a small white package and Wiley giving

Scott money in exchange for that small white package.

       Scott argues that Officer Smith was "some distance away," and by implication, "too

far away," to see what was actually transpiring. However, Officer Smith estimated that the

distance between his viewing position and the events he witnessed was only 45 yards.

Furthermore, he used binoculars to view the events, which provided a more detailed view.

Smith also stated he was close enough to hear the conversation between Scott and Wiley.

Finally, photographs admitted into evidence show that the distance from the window to the

car is not great. State's Exhibit 2, a photo taken from inside the room where Smith was

observing, shows that a considerable amount of detail is visible at this distance, including

many of the characteristics of the car in the picture. The car in the photo is parked at the

approximate location where Smith observed Wiley and Scott.

       It is well established that lay witnesses are competent to estimate distances, and

there was no objection to Smith's testimony regarding the distance from which he viewed

the events. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Kipper v.

State, 77 S.W. 611, 614 (Tex. Crim. App. 1903). Scott offered no testimony or evidence

regarding the distance from which Smith had observed the drug buy. There was some

discussion at trial about the foliage on the trees possibly obstructing Smith's view; Smith,

however, testified that in January, there was virtually no foliage on the trees at all.



                                              9
       The officer's eyewitness testimony regarding the proximity of Scott to Wiley, the

digital scale in the car, the exchange of money, and the testimony that Wiley did not have

any items in his pockets other than the drugs corroborate Wiley's testimony that he

purchased drugs from Scott. Smith's testimony regarding the proximity of him to these

events lends credibility to his evaluation of the activity as a drug buy. We recognize that

any of these circumstances individually might not be sufficient to corroborate Wiley's

testimony. See Jefferson v. State, 99 S.W.3d 790, 792 (Tex. App.–Eastland 2003, pet.

ref'd). Considering the circumstances together, however, a rational fact finder could

conclude that the cumulative effect of all the testimony sufficiently tended to connect Scott

to the offense. See id. Wiley's testimony, therefore, can be properly considered as

evidence of Scott's guilt. See Adams, 180 S.W.3d at 415.

       Nevertheless, Scott challenges Wiley's credibility and motivation for testifying

against him. Scott explored Wiley's credibility on cross-examination; thus, the jury was

made aware of Wiley's potential credibility problems. Defense counsel inquired about

Wiley failing to show up for court in his possession case stemming from the events leading

to the instant case. Defense counsel further asked Wiley about a prior conviction for

aggravated assault with a deadly weapon.

       Defense counsel impeached Wiley's testimony that he did not know what the drugs

weighed using his written statement, in which Wiley stated the drugs weighed .9 ounces.

Counsel also questioned Wiley about (1) his use of alcohol and marihuana earlier that day,

before meeting with Scott; and (2) inconsistencies with his testimony regarding whether the

two baggies of drugs were in his breast pocket, or if one was in his pants pocket. Finally,

Scott’s counsel questioned Officer Smith and Wiley about presence of other people at the

location during the transaction, arguing the possibility that Wiley purchased drugs from

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another person in the parking lot.

       While there is some evidence raising questions about Wiley's credibility, the

reliability of Officer Smith's perceptions, and the presence of third parties during the

transaction, we cannot conclude that the State's proof of Scott's guilt is so obviously weak

as to undermine confidence in the fact finder's determination. See Lancon, 253 S.W.3d

at 705; see also Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). As the trier

of fact, the jury is the judge of the credibility of the witnesses and of the weight to be given

the witnesses' testimony. Lancon, 253 S.W.3d at 705-06. Even though Wiley may have

been a discredited witness with selfish interests, the jury was entitled to find that he was

telling the truth and that other evidence corroborated his testimony. Id. The jury chose to

resolve the evidence in favor of the prosecution. We defer to that resolution. Id. Viewing

the evidence neutrally, we hold the evidence was factually sufficient to support the

conviction. We overrule Scott’s first issue.

       2.     Drug-Free Zone Enhancement

       By his second issue, Scott argues that Smith's testimony regarding the distance

from the school to the location of the drug buy is factually insufficient to find Scott guilty of

Delivery of a Controlled Substance within 1,000 feet of a school. Scott suggests the

evidence is insufficient because the State (1) offered no evidence regarding how Smith

came up with the estimated distance, (2) offered no evidence to prove the measuring

device used to confirm Smith's estimate of the distance was used properly, and (3) offered

no evidence regarding the model, working condition or functionality of the device.

       If it is shown that an accused possessed cocaine in an amount less than 1 gram,

and that the accused possessed the cocaine "in, on, or within 1,000 feet of premises of a

school or a public or private youth center," the crime is a felony of the third degree. TEX .

                                               11
HEALTH & SAFETY CODE ANN . § 481.134(d)(1). In this case, the jury made a special finding

that Scott's offense occurred in a drug-free zone.

       At trial, Smith testified that the location of the drug buy—525 East Caney in

Wharton, Texas—fell within 1,000 feet of Hopper Elementary School, located at 500 Able

Street in Wharton, Texas. Scott did not object to Smith's testimony, nor did he present

evidence to controvert Smith's testimony. The drug-free zone statute does not require the

State to specifically present a particular kind of evidence or to submit complex metes and

bounds declarations of nearby properties to satisfy its burden of proof on the drug-free

zone element. Id. While Texas Health and Safety Code section 481.135 provides that

county or municipal maps are prima facie evidence of the location of a drug-free zone,

maps are not required—section 481.135 expressly authorizes the State to introduce or rely

on "any other evidence or testimony to establish any element of an offense for which

punishment is increased under Section 481.134." Id. § 481.135(d) (Vernon 2003). An

officer’s testimony, based on personal knowledge, that the offense occurred in a drug-free

zone is sufficient to support a finding on the enhancement. Young v. State, 14 S.W.3d

748, 754 (Tex. Crim. App. 2000) (relying on officer’s testimony as to location of drug-free

zone and offense, which was based on personal knowledge); see also Curry v. State, No.

10-07-00104-CR, 2008 WL 43647, at *3 (Tex. App.–Waco Jan. 2, 2008, no pet.) (mem.

op., not designated for publication).

       It is well settled that in Texas, the opinions of lay witnesses, when competent, are

admissible concerning estimates of age, size, weight, quantity, time, distance and speed

of persons and things. Denham, 574 S.W.2d at 131; Kipper, 77 S.W. at 614; see also

Blake v. State, No. 06-03-00085-CR, 2004 WL 963323, at *5 (Tex. App.–Texarkana 2004,

pet. ref'd) (mem. op, not designated for publication) (holding officer’s testimony regarding

                                            12
location of drug buy and drug-free zone was sufficient to sustain conviction). In the instant

case, Smith's opinion that the estimated distance from the school property to the site of the

drug buy was within 1,000 feet, and his subsequent measurement of that distance, was

sufficient to support the conviction. We hold that the evidence is not so weak as to render

the verdict unjust, nor is the jury’s verdict against the great weight and preponderance of

the evidence. See Lancon, 253 S.W.3d at 704.

                                      III. Conclusion

       Having overruled all three of Scott’s issues, we AFFIRM.



                                                         __________________________
                                                         GINA M. BENAVIDES
                                                         Justice

Do not publish.
See TEX . R. APP. P. 47.2(b)

Memorandum Opinion delivered and
filed this the 14th day of August, 2008.




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