Opinion filed July 31, 2014




                                      In The

        Eleventh Court of Appeals
                                  ____________

                              No. 11-12-00213-CR
                                  ____________

                     BOBBY DEAN BROWN, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 91st District Court
                            Eastland County, Texas
                          Trial Court Cause No. 22675


                      MEMORANDUM OPINION
       Bobby Dean Brown appeals his conviction for the offense of possession of
less than one gram of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(b) (West 2010). The jury assessed punishment at confinement for two
years in a state jail facility and a fine of $10,000. The trial court sentenced him
accordingly. In four points of error, Appellant complains of jury charge error, two
instances directed at the inadmissibility of expert witness testimony, and the denial
of his motion for new trial. We affirm.
        On the date of the offense, Appellant was at the home of his friend Rhonda
McWhorter. McWhorter was on community supervision, and she had missed her
monthly supervision appointment that day. McWhorter’s supervision officer and
David Cherry, the director of adult probation in Eastland County, were looking for
McWhorter. Cherry called Deputy Benjamin Yarbrough with the Eastland County
Sheriff’s Department, and Deputy Yarbrough called Texas Department of Public
Safety Trooper Tim Pitts. Deputy Yarbrough and Trooper Pitts went with the
supervision officers to look for McWhorter.
        When they arrived, Appellant and McWhorter were sitting in Appellant’s
pickup outside of McWhorter’s home.             Appellant and McWhorter got out of
Appellant’s pickup. McWhorter was taken to one of the patrol cars while Trooper
Pitts began talking to Appellant. Trooper Pitts, Deputy Yarbrough, and Cherry all
testified that Appellant consented to a search of his pickup. In the subsequent
search, Trooper Pitts found a glass pipe in the glove compartment, and it had a
white    powdery     coating   indicating    that   it   had   been   used   to   smoke
methamphetamine. Although the pipe was found in his pickup, Appellant was not
taken to jail because he had recently been in a motorcycle accident, had open sores
on his body, and also had a staph infection. He was issued a ticket for possession
of drug paraphernalia. Deputy Yarbrough had the contents of the pipe tested. A
chemist from the DPS crime laboratory testified that he tested the substance using
a Gas Chromatograph Mass Spectrometer (GCMS) and that it tested positive for
the presence of methamphetamine. The jury found Appellant guilty of possession
of less than one gram of methamphetamine. This appeal followed.
        In his first point, Appellant contends that the trial court erred when it refused
to give an Article 38.23 instruction because there was a fact issue about whether
Appellant consented to the search of his pickup. See TEX. CODE CRIM. PROC. ANN.
art. 38.23 (West 2005).

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        When a fact issue arises at trial regarding how evidence was obtained,
Article 38.23 requires the trial court to instruct the jury to disregard the evidence if
the jury believes that the evidence was obtained in violation of the Constitution or
laws of the United States or of Texas. Id. To be entitled to such an instruction,
“(1) [t]he evidence heard by the jury must raise an issue of fact; (2) [t]he evidence
on that fact must be affirmatively contested; and (3) [t]hat contested factual issue
must be material to the lawfulness of the challenged conduct in obtaining the
evidence.” Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). “The
defendant must offer evidence that, if credited, would create a reasonable doubt as
to a specific factual matter” that is essential to the admissibility of the statement.
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008) (citing Madden,
242 S.W.3d at 510). “This factual dispute can be raised only by affirmative
evidence, not by mere cross-examination questions or argument.”             Id. (citing
Madden, 242 S.W.3d at 513 nn.22–23).
        Appellant’s challenge to the evidence as it relates to actual consent is two-
fold.   First, Appellant argues that there is a dispute about whether Appellant
actually consented to the search because McWhorter testified that she did not
believe that consent was obtained. Appellant contends that this conflicts with
Trooper Pitts’s testimony that Appellant gave him consent. Similarly, Appellant
argues that “McWhorter’s testimony on direct and re-direct created a fact issue”
because “McWhorter admitted to not being present” during the conversations after
testifying on direct examination that she did not hear Trooper Pitts request consent.
        Appellant cites to Espericueta v. State, 838 S.W.2d 880 (Tex. App.—Corpus
Christi 1992, no pet.), to support his proposition that a witness who “testifies one
way on direct and another way on cross” raises a fact issue. In Espericueta, the
defendant was asked on cross-examination whether he saw a double line when he
passed a vehicle, to which he said, “I don’t remember seeing the double line.” Id.

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at 883. On redirect examination, however, the defendant testified that he had not
committed a violation before the traffic stop. Id. The court concluded that the
evidence conflicted because the defendant “initially testified that he did not know
if he violated the law,” but on redirect, “testified that he committed no violations.”
Id.
      Here, on direct examination, McWhorter testified:
      Q      Okay. When you were there, did you ever hear Trooper Pitts
             ask for consent to search?

      A      No, sir.

      Q      Okay. Now, there was a brief time -- Were you taken away and
             did not hear that entire conversation?

      A      Yes, sir, but I believe they were already searching as I was
             being taken over to the other vehicle.

      Q      Okay.

      A      And I never heard any consent on them, and never asked any --
             or heard anyone ask for permission.

      Q      So, based on your perception, did it appear that they at any time
             requested to search?

      A      No, sir.

      Q      Okay. So, to you, it just appeared that they started searching?

      A      Yes.

On cross-examination, McWhorter testified:
      Q      So, isn’t it true there was a period of that you couldn’t hear
             what was going on?

      A      Yes, ma’am, that’s true.


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      Q     And so, you couldn’t testify -- you can’t tell the jury that you
            heard anything that was going on?

      A     No.

      Q     Do you know whether the troopers asked for consent or not?

      A     I just never heard them ask. I don’t have any idea.

      Q     So, they very easily could have?

      A     Yes, ma’am.

On redirect, defense counsel asked McWhorter to explain the circumstances that
led her to believe that consent was not requested, and she said, “Just that it
happened so quickly that they started searching the vehicle. It didn’t appear that
they had enough time to ask for consent, and for consent to be given.”
McWhorter’s testimony was that she did not hear anyone ask for or give consent.
She did not change her testimony on cross-examination. Thus, there were no
conflicts in McWhorter’s testimony that created a fact issue about whether
Appellant consented to the search.
      Additionally, there is no conflict between McWhorter’s testimony and that
of Cherry, Trooper Pitts, and Deputy Yarbrough.        Cherry, Trooper Pitts, and
Deputy Yarbrough each testified that Appellant gave consent to Trooper Pitts to
search the vehicle. McWhorter testified that she did not believe consent was
granted because the search happened so quickly, that she did not hear Trooper Pitts
request consent, that she did not hear Appellant give consent, and that she did not
know whether Trooper Pitts asked for consent but that he could have. No one
testified that Appellant refused consent, that they heard Appellant refuse consent,
or that Appellant questioned why the officers were searching his vehicle.




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McWhorter’s testimony was not affirmative evidence that created a reasonable
doubt that Appellant consented to the search.
      Second, Appellant argues in the alternative that, if he consented to the
search, his consent was not voluntary. Consent must be freely and voluntarily
given. Johnson v. State, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990). Whether
consent to search was voluntary or the product of duress or coercion is a question
of fact to be determined from the totality of the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973); Juarez v. State, 758 S.W.2d 772, 775 (Tex.
Crim. App. 1988). “[I]t is only by analyzing all the circumstances of an individual
consent that it can be ascertained whether in fact it was voluntary or coerced.”
Schneckloth, 412 U.S. at 233. The State has the burden to show that consent was
voluntary. Paprskar v. State, 484 S.W.2d 731, 737 (Tex. Crim. App. 1972).
      Appellant directs us to Carla Fox’s testimony and argues that her testimony
created a fact issue about whether Appellant was “in a good decision making
capacity” at the time of his encounter with police. Fox testified that Appellant was
taking hydrocodone for the injuries he suffered in the accident, that he seemed
altered mentally, that he had problems remembering things, and that he did not
have good judgment.     There is no evidence disputing that Appellant was taking
prescription medication prior to his encounter with police.
      Although the record reveals that Fox cared for Appellant after his
motorcycle accident, Fox testified that she had been in jail for three days at the
time of the encounter. Thus, Fox had no personal knowledge about whether
Appellant took prescription medication that day or during the time that she was in
jail, nor did she know about his ability to consent to the search on the day that it
was conducted.     Whether Appellant was medicated and did not have good
judgment several days prior to the encounter is not determinative of whether



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Appellant was capable of giving voluntary consent to the search on the day of the
encounter.
       McWhorter testified that Appellant appeared to her to be fully functional.
Yarbrough described Appellant’s demeanor throughout the encounter as “[m]atter
of fact.” Trooper Pitts believed that he and Appellant were communicating, that
Appellant understood the questions and answered them reasonably, that Appellant
was aware of what was going on and why they were there, and that Appellant
comprehended the situation.
      In light of Trooper Pitts’s testimony about Appellant’s comprehension and
ability to communicate and interact and McWhorter’s testimony that he appeared
to be fully functional on the day of the encounter, Fox’s testimony regarding
Appellant’s condition several days before the encounter did not create a factual
dispute that was material to the determination of whether his consent was
voluntary on the date of the search. Appellant’s first point is overruled.
      In his second and third points, Appellant challenges the admissibility of
certain expert testimony and exhibits. We review a trial court’s determination that
a witness is qualified as an expert and its ruling on the admission of expert
testimony for an abuse of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex.
Crim. App. 2006). “Absent a clear abuse of that discretion,” we will not disturb
the trial court’s decision to admit or exclude testimony. Wyatt v. State, 23 S.W.3d
18, 27 (Tex. Crim. App. 2000).
      The trial court may admit the testimony of an expert “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.” TEX. R. EVID. 702. Thus, to be
admissible, the proponent of expert testimony must establish by clear and
convincing evidence the following three conditions: “(1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or education; (2) the

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subject matter of the testimony is an appropriate one for expert testimony; and
(3) admitting the expert testimony will actually assist the fact-finder in deciding
the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006).
      In his second point, Appellant argues that Trooper Pitts and Deputy
Yarbrough were not qualified “to testify to the State’s inability to obtain
fingerprints or DNA evidence from the pipe found in Appellant’s truck.”
      “The party proffering the expert witness bears the burden of showing that
the witness is qualified on the specific matter in question.” Penry v. State, 903
S.W.2d 715, 762 (Tex. Crim. App. 1995). We must review the trial court’s ruling
in light of the evidence before the court at the time of the ruling. Rodgers, 205
S.W.3d at 528–29. “The special knowledge which qualifies a witness to give an
expert opinion may be derived from specialized education, practical experience, a
study of technical works, or a varying combination of these things.” Penry, 903
S.W.2d at 762. “Because the possible spectrum of education, skill, and training is
so wide, a trial court has great discretion in determining whether a witness
possesses sufficient qualifications to assist the jury as an expert on a specific topic
in a particular case.” Rodgers, 205 S.W.3d at 527–28.
      In Acevedo, when the investigator testified that “[n]o latent prints evidence
suitable for identification [was] developed,” the defendant objected to the
investigator’s qualifications as an expert. Acevedo v. State, 255 S.W.3d 162, 171
(Tex. App.—San Antonio 2008, pet. ref’d) (alterations in original).               The
investigator received training at the academy and took “an in-service class on
identifying fingerprints.” Id. The investigator explained that he had lifted latent
prints from crime scenes “[s]everal hundred times.” Id. The court concluded that
the investigator’s “testimony exhibited his training and experience with regard to
collecting fingerprint evidence” and held that it was not an abuse of discretion to
allow him to testify about “why a particular individual may not leave suitable

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prints” because he was “trained and experienced in lifting latent fingerprints.” Id.
at 171–72.
      Trooper Pitts described the pipe that was found in Appellant’s pickup as a
glass pipe that “had methamphetamine residue on the inside, a white powdery coat
that you could tell that somebody had been smoking methamphetamines using that
pipe.” Trooper Pitts testified that it was not reasonable to think that fingerprints or
other DNA could be lifted from the pipe. The defense objected to Trooper Pitts’s
qualifications to explain why he did not think it was reasonable to obtain
fingerprints or DNA from the pipe.        Trooper Pitts testified that he had gone
through the police academy eighteen years before and that he went through the
DPS training academy seven years later when he became a trooper. He also
received specialized training about methamphetamine and other controlled
substances and had found methamphetamine in vehicles on many occasions.
Trooper Pitts had also been to fingerprint schools.          The trooper explained,
“Fingerprints, you can pull fingerprints off of different surfaces, depending on
what that surface is; but, a lot of times, like a meth pipe, when they smoke
methamphetamines, it gets the residue on the outside of the pipe, which coats the
pipe.” Trooper Pitts further explained, “It would be like somebody having really
oily hands and touching that stuff.” As it related to “this meth pipe,” Trooper Pitts
stated that conditions were not “conducive to pulling fingerprints off of that.”
      When the State asked Deputy Yarbrough why he did not have the pipe tested
for fingerprints, the defense objected to Deputy Yarbrough’s qualifications to
answer the question. Deputy Yarbrough testified that he had his basic peace
officer certification, that he had specialized training regarding methamphetamine
and other controlled substances, and that he had found methamphetamine in
vehicles on many occasions. According to Deputy Yarbrough, fingerprints could
not be lifted off the pipe. Deputy Yarbrough explained that there is a round part

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where the methamphetamine is placed and that smoke travels through the pipe on
the inside but also adheres to the outside of the pipe. On cross-examination,
defense counsel questioned Deputy Yarbrough about why he had not tested the
pipe for DNA, and he said, “Well, again, you’re back to the breakdown of the
DNA, same as fingerprints on the tube.”
       Deputy Yarbrough and Trooper Pitts testified about their training and
experience with regard to collecting fingerprint evidence. See Matson v. State, 819
S.W.2d 839, 851 n.10 (Tex. Crim. App. 1991) (“A witness may be qualified by
reason of knowledge, skill, experience, or training, regardless of its source.”).
Their testimony was limited to the types of surfaces that are not conducive to
lifting fingerprints. As officers trained and experienced in lifting fingerprints, their
area of expertise included what makes certain surfaces less suitable to lift
fingerprints.   Accordingly, we cannot conclude that the trial court abused its
discretion when it admitted the testimony of Deputy Yarbrough and Trooper Pitts.
       Even if there was error, we must conclude that any such error was harmless
because Appellant admitted to possessing the pipe. The State elicited the officers’
testimony to explain why it could not offer fingerprint or DNA evidence to connect
Appellant to the pipe. Appellant entered a plea of guilty and paid a $565 fine for
the paraphernalia ticket that he received in connection with the pipe. Any error
that resulted from allowing the officers to testify about why they could not offer
fingerprint testimony in order to directly connect the pipe to Appellant would have
been rendered harmless in light of Appellant’s admission by his plea of guilty to
the possession-of-paraphernalia offense. Appellant’s second point is overruled.
       In his third point, Appellant contends that the trial court erred when it
admitted the Drug Analysis Laboratory Report and allowed forensic scientist
Raymond Arthur Waller, Jr. to testify about the results of that report because the
State failed to first establish the reliability of the results.

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      To establish reliability, “(a) the underlying scientific theory must be valid;
(b) the technique applying the theory must be valid; and (c) the technique must
have been properly applied on the occasion in question.” Kelly v. State, 824
S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant challenges the application of
the technique under the third prong. Appellant directs us to Waller’s testimony
where he could not tell the jury the date that the GCMS had been calibrated, the
date that method blanks had last been run, the exact lowest point of the detection
limits, or the signal-to-noise ratio and argues that the State failed to show that the
scientific technique was properly applied in this case.
      Appellant cites Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003)
as “[a]lmost an identical situation.” In Hernandez, the Court of Criminal Appeals
concluded that there was “no other evidence or material in this trial record . . . that
would support any finding of the scientific reliability of the ADx analyzer.” 116
S.W.3d at 30. The State failed to carry its burden in Hernandez to establish the
reliability of a new science. Id. at 30–31. Hernandez was decided because of lack
of evidence to explain how or why the ADx analyzer was reliable for urinalysis
and not whether it was properly applied on the occasion in question. Id. Appellant
does not challenge the reliability of the GCMS but rather contends that the State
“failed to establish that [Waller] or anyone else in [the] laboratory correctly
applied [the] techniques” in this case.
      The record reflects that Waller has a bachelor’s of science degree in
chemistry and, at the time of his testimony, had been employed by the Texas
Department of Public Safety Crime Laboratory for more than fifteen years. In
addition to testing, writing reports, testifying, and handling personnel matters, he is
“the laboratory’s quality manager.” Waller ensures that all reports comply with the
lab’s operating guidelines and standard operating procedures.           According to
Waller, the GCMS that was used in this case is calibrated once a week. Waller

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said, “I know it was calibrated, but I don’t know the exact date.” When asked
about “the procedures for the calibration” using auto tune, Waller explained that he
uses computer software and that “[j]ust a click of a mouse will let you auto tune
the instrument.” When asked whether he used “method blanks in the system” to
test for the presence of contaminants, Waller said that “blanks are [run] once a
quarter” in accordance with the laboratory’s standard operating procedure. Waller
did not know the date that method blanks were last used prior to the testing in this
case.
        Waller also testified that the detection limits are “well below a milligram
strength.” Waller did not know the exact number but said, “I just know it’s well
below a milligram strength.”          The lab report shows that 0.01 grams of
methamphetamine were tested in this case. Waller also did not know the signal-to-
noise ratio for this particular GCMS, but he explained that this “procedure was
done with the validation of this piece of equipment.” He explained that validation
occurs when a new piece of equipment arrives at any DPS crime lab; a series of
tests are conducted to ensure “that this instrument works, and it works properly.”
Waller also testified that the testing in this case was conducted according to
laboratory policy at all stages of testing.
        Appellant argued at trial that there was no evidence of calibration or method
blanks and argues on appeal that “there is no reliability upon which the State can
base its evidence.” Although Waller did not know the exact date of calibration or
when method blanks had been run, he is the laboratory control manager and
testified that the proper methods of testing were applied at all stages of the testing
process. While Waller did not know the signal-to-noise ratio, he testified that the
machine went through the validation process when it arrived at the lab. Appellant
complains that Waller “could not state how the instrument was calibrated other
than by an auto tune with a mouse click,” but Appellant did not ask Waller to

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explain how the software program worked. Given Waller’s testimony, we cannot
conclude that the trial court abused its discretion when it admitted the lab report
and allowed Waller to testify to the results contained therein. See Ellison, 201
S.W.3d at 723. Accordingly, Appellant’s third point is overruled.
      In his fourth point, Appellant argues that the trial court erred when it denied
his motion for new trial without first conducting a hearing. Appellant’s sentence
was imposed on May 1, 2012. Appellant’s motion for new trial reflects a file
stamp of May 31, 2012. A “Certificate of Presentment,” signed by Appellant’s
attorney, was attached to the motion.        In the certificate, Appellant’s attorney
certified that he had hand delivered the motion to the office of the trial court. The
motion was overruled by operation of law.
      To preserve error from the denial of a motion for new trial, the motion must
be presented to the trial court. TEX. R. APP. P. 21.6; Thompson v. State, 243
S.W.3d 774, 776 (Tex. App.—Fort Worth 2007, pet. ref’d). Presentment means
that the defendant has given the trial court actual notice that he wants the trial court
to hold an evidentiary hearing and rule on the motion. Carranza v. State, 960
S.W.2d 76, 78 (Tex. Crim. App. 1998). A defendant must provide actual notice
and must show that the motion was actually delivered to the trial court or otherwise
brought to its attention. Thompson, 243 S.W.3d at 776.
      Appellant did not show actual notice to the trial court because the
“Certificate of Presentment” showed only that the motion was hand delivered to
the trial court’s office.     Such a certificate of presentment does not show
presentment under the rule. See Hiatt v. State, 319 S.W.3d 115, 122 (Tex. App.—
San Antonio 2010, pet. ref’d); Owens v. State, 832 S.W.2d 109, 111–12 (Tex.
App.—Dallas 1992, no pet.). This is the case even when it is certified in the
presentment certificate that the motion was presented to the trial court. Hiatt, 319
S.W.3d at 122; Owens, 832 S.W.2d at 111. Moreover, there is no evidence that

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Appellant requested a hearing because Appellant did not request one in the motion
or include an order for a setting. Because this record does not show that Appellant
ever presented a motion for new trial that included a request for a hearing and
because there is no showing that such a request was ever brought to the attention of
the trial court, we cannot say that the trial court erred when it failed to hold a
hearing on Appellant’s motion for new trial prior to the motion being overruled by
operation of law. Rozell v. State, 176 S.W.3d 228, 231 (Tex. Crim. App. 2005).
Appellant’s fourth point is overruled.
       We affirm the judgment of the trial court.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE
July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall 1

Bailey, J., not participating.




       1
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.


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