                                 NO. 07-07-0501-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                                   APRIL 15, 2009

                        ______________________________


                         LARRY WILSON, SR., APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                      _________________________________

            FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

                 NO. 3423; HONORABLE DAVID MCCOY, JUDGE 1

                        _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                              MEMORANDUM OPINION


      On January 23, 2006, Appellant, Larry Wilson, Sr., plead guilty to arson and was

placed on deferred adjudication for five years. On January 4, 2007, the State filed a



      1
       Although the Honorable David M. McCoy presided at the pretrial hearings and the
hearing on the State’s motion to adjudicate, the Honorable John T. Forbis presided over
the hearing on Appellant’s motion for new trial.
motion to adjudicate guilt based upon three alleged violations of the terms and conditions

of community supervision. Appellant’s defense was based upon a theory that Desman

Mace had laced his food with marihuana2 and, therefore, he did not knowingly ingest a

controlled substance in violation of the terms and conditions of his community supervision.

On October 1, 2007, Judge McCoy found that Appellant had violated the condition of his

community supervision that he abstain from the use of narcotics or any controlled

substance and adjudicated him guilty. Punishment was then assessed at fourteen years

confinement. Appellant timely filed a motion for new trial and, on December 13, 2007,

Judge Forbis conducted a hearing on that motion. Without ruling on the motion for new

trial, the motion was overruled by operation of law and this appeal followed.3


       By three points of error, Appellant maintains the trial court abused its discretion in

(1) failing to grant his motion for new trial as previously agreed to on the record and in light

of new evidence; (2) failing to grant his motion for continuance based on the unavailability

of a material witness; and (3) finding that he violated a condition of community supervision

because the State failed to meet its burden of proof. We affirm.



       2
       The Texas Controlled Substances Act refers to “marihuana;” the record refers to
“marijuana.” We will use the statutory spelling throughout this opinion except in quoted
material. See Tex. Health & Safety Code Ann. §§ 418.001 - .314 (Vernon 2003 & Supp.
2008).
       3
       Effective June 15, 2007, the Legislature amended article 42.12, § 5(b) of the Texas
Code of Criminal Procedure to permit an appeal from the trial court’s determination to
adjudicate guilt in the same manner as a revocation hearing. See Tex. Code Crim. Proc.
Ann. art. 42.12, § 5(b) (Vernon Supp. 2008).

                                               2
I.    Procedural and Factual Background


      On December 4, 2006, while Appellant was on deferred adjudication, a urine sample

was taken from him for the purpose of conducting a urinalysis. The sample tested positive

for marihuana. As a result, on January 4, 2007, the State filed its motion to adjudicate

guilt. On April 3, 2007, Appellant filed a motion seeking continuance of a hearing

scheduled April 9th. On August 2, 2007, Appellant filed a motion seeking continuance of

a hearing scheduled August 7th. On August 30, 2007, Appellant filed a motion for

continuance seeking a continuance of a hearing scheduled that day. That motion was

supported by Appellant’s affidavit averring that “Desman Mace is a material witness whose

presence is required because he will testify that he put marijuana in my food without my

knowledge.” The revocation hearing commenced on August 30th, however, after hearing

testimony from witnesses for both the State and Appellant, that hearing was recessed in

order to allow Appellant’s counsel an opportunity to secure Mace’s attendance. On

September 28, 2007, Appellant filed a “second” motion seeking continuance of the

recommencement hearing scheduled October 1st. On October 1, 2007, the trial court

conducted a pretrial hearing on that motion before recommencing the hearing on the

State’s motion to adjudicate.


      A. Pretrial Hearing on Motion for Continuance


      During the pretrial hearing conducted October 1, 2007, Appellant’s counsel argued

that he had requested a subpoena for Mace several weeks earlier, but it had been returned

                                           3
undelivered. Counsel informed the court that he believed the witness was in the Denver,

Colorado area but he was unable to locate him. The court noted that an affidavit by Mace

had been admitted, without objection, during the August 30th hearing for the purpose of

showing what his testimony would have been if he were available. The affidavit provided,

in part, “I, Desman Mace, put marijuana in Larry Wilson, Sr.’s food (turnip green) without

him noing [sic] on 12-3-06 Amarilo, [sic] Tx, because Larry Wilson has a girlfriend that I

wanted to be with . . . .” Noting that the record contained the substance of Mace’s

proffered testimony, the court denied the motion for continuance and proceeded with the

motion to adjudicate.


       B. Hearing on State’s Motion to Adjudicate


       The court heard testimony on August 30, 2007, however, it did not rule on the

motion until October 1, 2007. During the August 30th hearing, Appellant’s community

supervision officer testified that Appellant was required to submit to a urinalysis test on

December 4, 2006. Dr. John Laseter, whose expert qualifications include a Ph.D. in

biochemistry, testified that the results of Appellant’s urinalysis showed 210 nanograms per

milliliter of the THC metabolite found in marihuana. According to Dr. Laseter, a result of

15 nanograms per milliliter is the “cut off” for a positive confirmation of marihuana use. He

also testified that eating marihuana would not necessarily elevate the THC level in the

body. He explained that ingesting marihuana would have little or no effect on a person




                                             4
unless the quantity consumed was large because digestive enzymes would break it down

and absorption takes place very slowly.


       Appellant denied using marihuana and testified that his positive urinalysis was

because Mace had laced his food with marihuana over a dispute involving a woman. At

the conclusion of the August 30th hearing, the court recessed further proceedings for the

sole purpose of allowing Appellant the opportunity to compel Mace’s attendance and

testimony. When the hearing resumed on October 1st, Mace remained unavailable. The

court noted that if Mace was to testify to the matters already contained in his previously

admitted statement, there was nothing more to hear.


       Appellant then argued that unidentified persons at a drug lab had contradicted Dr.

Laseter’s testimony regarding the effect of consuming food laced with marihuana.

Following that argument, the trial court made the following ruling:


       I am willing to complete this case today, and depending on how I rule on this
       case – if I revoke Mr. Wilson’s probation or deferred, whatever it is, I’m
       willing, if he will give you names and you can get affidavits from properly
       qualified doctors at either one of these two places, that will say that the
       ingestation by eating in cooking materials, will give you much higher readings
       than Dr. Laseter had said they would, then I am willing to reconsider and
       grant a motion for new trial, if it’s done within the proper new trial time.


The court added “[t]he guy needs to be qualified. He needs to be qualified to do the things

that Dr. Laseter is qualified to do.” The ruling continued:




                                             5
      If that doctor or whatever he would be classified, Ph.D., says, “[i]n my
      medical professional opinion, if you ingest certain sums of marijuana through
      cooking–“ like with the case here– “–then the reading could well be as high
      or higher than the reading was in your test that Dr. Laseter testified to.” Then
      I’m willing to grant a motion for rehearing as long as it’s done in a timely [sic],
      so I don’t lose jurisdiction.


      The court then ruled that the evidence was sufficient to establish by a

preponderance of the evidence that Appellant violated the condition that he abstain from

using narcotics or any controlled substance in any form at any time unless taken under the

direction of a physician. Appellant was adjudicated guilty of arson and sentenced to

fourteen years confinement.


II. Discussion


      A. Motion for New Trial


      Appellant contends the trial court abused its discretion in failing to grant his motion

for new trial as previously agreed to on the record and in light of new evidence. We

disagree. The trial court has discretion to decide whether to grant a motion for new trial

based on newly-discovered evidence, and its ruling will not be disturbed absent an abuse

of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002).


      The hearing on Appellant’s motion for new trial was presided over by the Honorable

John T. Forbis. He expressed concern about Judge McCoy’s “agreement” to reconsider

Appellant’s revocation if new evidence became available to support his contention that he


                                              6
did not knowingly use a controlled substance in violation of the terms and conditions of his

community supervision. Appellant’s new evidence consisted of an affidavit from Steve

Harris, a scientist employed by One Source Toxicology. Harris averred in relevant part:


       I am an employee for One Source Toxicology Laboratory, Inc. I was the
       certifying scientist for the reconfirmation marijuana testing for Larry Wilson
       performed on August 16, 2007. It is my professional opinion that it is
       possible for an individual to ingest marijuana that has been cooked, either by
       baking or boiling, and test positive for marijuana consumption at a level of
       150-250 ng/mL. The heat involved in the cooking process releases the THC
       in much the same way igniting the marijuana to smoke it does. The amount
       of marijuana placed in the food could be small enough that a person eating
       the food in which the marijuana was contained would not detect the presence
       of the marijuana, this is true because the THC content in marijuana plants
       greatly varies.


Noting that this was a very serious matter, Judge Forbis deferred his ruling to review things

“word-by-word.” The motion for new trial, however, was overruled by operation of law.


       Judge McCoy’s “agreement” on the record that he would reconsider or grant a new

trial was conditioned on Appellant providing an affidavit from an expert with credentials

similar to those of Dr. Laseter’s, i.e., Ph.D. Harris’s affidavit does not provide any

information establishing his expert qualifications “to do the things that Dr. Laseter is

qualified to do” as required by Judge McCoy’s ruling. Thus, we conclude the affidavit is

insufficient to satisfy the condition imposed by Judge McCoy for granting a new trial. See

Tex. R. Evid. 702. Without deciding whether such an “agreement” is enforceable, we find

the trial court did not abuse its discretion by failing to grant Appellant’s motion for new trial

based upon any agreement in the record.

                                               7
       Furthermore, motions for new trial based upon newly discovered evidence are

controlled by article 40.001 of the Texas Code of Criminal Procedure which provides: “A

new trial shall be granted an accused where material evidence favorable to the accused

has been discovered since trial.” Keeter, 74 S.W.3d at 36. This provision has been

interpreted as requiring the satisfaction of a four-part test: (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 a lack of diligence; (3) the new

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 on another trial. Id. at 36-37. Nothing in the record supports a finding that

the testimony of Harris met these requirements at the time of the hearing on the motion to

proceed. Point of error one is overruled.


       B. Motion for Continuance


       Appellant contends the trial court abused its discretion in failing to grant his second

motion for continuance based on the unavailability of a material witness. We disagree.


       Whether to grant or deny a motion for continuance is within the sound discretion of

the trial court. Janeka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). When

reviewing the trial court’s denial of a motion for continuance, we examine the

circumstances present in every case, particularly the reasons presented to the trial court

at the time the motion is denied. Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.

                                              8
1982). Where the continuance is requested because of a missing witness, if the evidence

does not indicate a probability that the witness can be secured by a postponement, or if

it appears that a continuance due to the absence of the witness would delay the trial

indefinitely, the motion may be properly denied. Rodriguez v. State, 21 S.W.3d 562, 565-

66 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d) (citing Varela v. State, 561 S.W.2d 186,

191 (Tex.Crim.App. 1978)).


       The record establishes that Appellant had already been granted several

continuances, including a continuance from August 30th to October 1st, solely for the

purpose of finding Mace. When Mace was still unavailable, the trial court denied the

motion for continuance, noting that Mace’s written statement to the effect that he had

placed marihuana in Appellant’s food without his knowledge was already before the court.

Appellant did not establish that an additional continuance to locate Mace would have

contributed anything further to his defense. The trial court was not required to continue the

case indefinitely to locate a witness, the substance of whose testimony was already known.

We conclude the trial court did not abuse its discretion in failing to grant Appellant’s motion

for continuance. Point of error two is overruled.


       C. Revocation of Community Supervision


       By his third and final point, Appellant asserts the trial court abused its discretion in

finding that he violated a condition of community supervision because the State failed to

meet the burden of proof. We disagree.

                                              9
       When reviewing an order revoking community supervision imposed under an order

of deferred adjudication, the sole question before this Court is whether the trial court

abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006);

Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Jackson v. State, 645

S.W.2d 303, 305 (Tex.Crim.App. 1983). In a revocation proceeding, the State must prove

by a preponderance of the evidence that the probationer violated a condition of community

supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874

(Tex.Crim.App. 1993). If the State fails to meet its burden of proof, the trial court abuses

its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494.             In

determining the sufficiency of the evidence to sustain a revocation, we view the evidence

in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421

(Tex.Crim.App. 1979).


       The State’s expert witness, Dr. Laseter, testified that Appellant’s urinalysis tested

positive for marihuana in an amount much higher than if the marihuana had been ingested

by eating food laced with marihuana. Even if Appellant had been able to present evidence

from a qualified expert refuting Dr. Laseter’s testimony, the court was free to accept or

reject that testimony. The State proved by a preponderance of the evidence that Appellant

violated the terms and conditions as found by the trial court. Thus, the trial court did not

abuse its discretion in adjudicating Appellant guilty of the charged offense and revoking his

community supervision. Point of error three is overruled.



                                             10
      Consequently, the trial court’s order adjudicating guilt is affirmed.



                                                 Patrick A. Pirtle
                                                     Justice



Do not publish.




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