                                  NO. 07-09-00295-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   AUGUST 15, 2011


                      HERBERT FRANKLIN GARZA, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


           FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

                 NO. 5192; HONORABLE STUART MESSER, JUDGE


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



                               MEMORANDUM OPINION

       Presenting ten points of error, appellant Herbert Franklin Garza appeals from his

conviction by jury of the offense of delivery of a controlled substance to a child and the

resulting sentence of sixty-five years of imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. We affirm.
                                       Background


      Appellant was indicted for delivery of a controlled substance, methamphetamine,

to Q.M., a minor.1 The indictment included two enhancement paragraphs setting forth

appellant’s two previous felony convictions.2


          Evidence showed that Q.M., then fifteen years old, helped appellant with some

work at an address in Childress, Texas. Q.M., who is related to appellant, testified he

expected to be paid in cash for his work, but appellant instead paid him with

methamphetamine. Q.M. told the jury he had used methamphetamine in the past so he

knew what appellant gave him. He said he smoked the drug with appellant and another

individual. A few hours later, Q.M. went to the home of Dustin Dann.


      Q.M.’s mother called police after she found Q.M. coming out of Dann’s house.

She saw Q.M.’s eyes were very “low,” he was sweating profusely, and his chin was

moving back and forth erratically. She knew Q.M. was “real” high, so she called an

ambulance and police.       Q.M. told his mother he was high because he had been

smoking “ice.” Over objection, the mother further testified appellant later told her he

gave the methamphetamine to Q.M.


      The officer who responded to the call testified Q.M.’s mother was “frantic,

appeared to be scared, and concerned about her son.”3 Asked to describe Q.M.’s



      1
           See Tex. Health & Safety Code Ann. § 481.122 (West 2003).
       
      2
         Appellant plead “not true” to each of the two enhancement paragraphs. After
hearing punishment stage evidence, the jury found the allegations in each to be true.
Those findings are not challenged on appeal. 
                                            2
behavior, he said Q.M. “was sitting on a couch with his head hung, having a hard time

keeping his eyes open. His jaw was moving back and forth erratically. He was very

incoherent. Almost on the verge of passing out.” Concluding Q.M. showed signs of a

possible overdose, the officer called emergency medical services. Over appellant’s

objections, the officer testified Q.M.’s mother told him Q.M. was “overdosing” on

methamphetamine, and testified Q.M. told him he had smoked a “30 bag” of

methamphetamine.4


      Q.M. was transported to the hospital.         A physician testified without objection

Q.M.’s mother told him Q.M. was there because he had smoked methamphetamine.

Q.M.’s medical files were admitted into evidence. The hospital lab results indicated

Q.M.’s urine tested positive for “cannabinoids and opiates.” The doctor testified that

was a mistake and should have read “cannabinoids and amphetamines.” Because of

the positive drug finding, a sample of the urine also was sent to a Dallas commercial

laboratory. That report confirmed Q.M.’s urine was positive for methamphetamine and

marijuana.




      3
          During an earlier hearing outside the jury’s presence, the officer described
Q.M.’s mother’s demeanor as “very distraught,” “seemed . . . really worried about her
son,” “shaking, trembling, just scared.” 
 
      4
            The
            officer    testified   a   “30   bag”    was    approximately   .5   grams   of
methamphetamine.  
                                             3
                                           Analysis


Sufficiency of the Evidence


       In appellant’s first, second, third and fourth points of error, he contends the only

evidence that showed the substance was methamphetamine was the testimony of Q.M.

According to appellant, the testimony is contradictory in nature and provides conflicting

times and events. Appellant asserts Q.M.’s testimony is legally and factually insufficient

to prove appellant delivered methamphetamine to Q.M.


       As an initial consideration, we observe that appellant's appeal contends that the

evidence is both legally and factually insufficient. Appellant's brief was prepared and

filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,

323 S.W.3d 893 (Tex.Crim.App. 2010), wherein the court held that there is no

distinction between a claim of legal, as opposed to factual, insufficiency of the evidence.

Further, the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.

1996), and its purported application to factual sufficiency questions. Id. We will review

appellant's claims of evidentiary sufficiency under the standard of review set forth in

Jackson v. Virginia.5 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).


       5
          The previously-applied factual sufficiency standard considers whether the
evidence supporting guilt, though legally sufficient, is so weak that the jury’s verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such
that the jury’s verdict is against the great weight and preponderance of the evidence.
Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204
S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question
is whether, considering all the evidence in a neutral light, the jury was rationally justified
in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we
applied such a standard of review of the evidence, we could not sustain appellant’s
sufficiency contentions. From our review of the entire record, the finding of appellant’s
                                              4
       In assessing the sufficiency of the evidence, we review all the evidence, both

proper and improper, in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620

(Tex.Crim.App. 2004). When reviewing all of the evidence under the Jackson standard

of review, the ultimate question is whether the jury's finding of guilt was a rational

finding. See Brooks, 323 S.W.3d at 906-07 (discussing Judge Cochran's dissent in

Watson v. State, 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006), as outlining the proper

application of a single evidentiary standard of review). Under the Jackson standard, it is

the jury’s role to reconcile conflicts, contradictions, and inconsistencies in the evidence,

and to judge the credibility of witnesses. Brooks, 323 S.W.3d at 900.


       A person commits an offense if the person knowingly delivers a controlled

substance . . . to a . . . child." Tex. Health & Safety Code Ann. § 481.122 (West 2003).


       Not disputing that Q.M. was a child at the time of the offense, appellant argues

there is no evidence to show he delivered methamphetamine to Q.M. We disagree.

Although Q.M.’s testimony may not have been free from inconsistencies, it was the role

of the jury to reconcile any inconsistencies, conflicts or contradictions. Brooks, 323

S.W.3d at 900. Q.M. testified appellant gave him methamphetamine and smoked it with

him. He told his mother and the officer he had used methamphetamine. Appellant’s

mother testified appellant told her he gave the methamphetamine to Q.M. Lab tests

confirmed appellant had ingested methamphetamine. Viewed in the proper light, we

guilt was neither clearly wrong and manifestly unjust nor against the great weight and
preponderance of the evidence.
                                             5
conclude the evidence allowed a rational trier of fact to find, beyond a reasonable doubt,

appellant knowingly delivered methamphetamine to Q.M.


       The evidence is sufficient to support the verdict. We overrule appellant’s first,

second, third and fourth issues.


Admission of Hearsay Statements


      In appellant’s fifth and sixth points of error, he challenges the admission of

hearsay statements. He first complains of the testimony by the officer of statements

made to him by Q.M.’s mother when he responded to the call concerning Q.M. She told

the officer she thought her son had overdosed on methamphetamine.


      We review a trial judge's decision to admit or exclude evidence under an abuse

of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006);

Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996).       Only if the trial judge's

decision to admit evidence was outside the zone of reasonable disagreement will we

overrule the trial court's ruling. Montgomery v. State, 810 S.W.3d 372, 378

(Tex.Crim.App. 1991) (op on reh’g).


      The State argues the mother’s statement was admissible as an excited utterance

under Rule of Evidence 803(2), and we agree.         Tex. R. Evid. 803(2).    An excited

utterance is "[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition." Tex. R.

Evid. 803(2). To determine whether a statement is an excited utterance, trial courts

should determine "whether the declarant was still dominated by the emotions,

                                            6
excitement, fear, or pain of the event or condition" when the statement is made. Factors

that the trial court may consider include the length of time between the occurrence and

the statement, the nature of the declarant, whether the statement is made in response

to a question, and whether the statement is self-serving. Apolinar v. State, 155 S.W.3d

184, 190 (Tex.Crim.App. 2005).


       The court heard the officer describe Q.M.’s mother as “frantic,” “very distraught,”

“scared,” and “concerned about her son” at the time she made the challenged

statement. The trial court reasonably could have considered the mother’s statements

related to her son’s startling symptoms of drug overdose, and were made while she was

under the stress of excitement caused by her observation of his symptoms. They were

statements made by a mother relating to her son’s condition, were not self-serving on

her part and do not appear to have been made in response to questions from the

officer.


       Appellant contends only that these statements did not qualify as excited

utterances because of the “significant” amount of time that passed from Q.M.’s mother’s

observation of her son to the statements. However, the passage of time, standing

alone, is not determinative. See Sadler v. State, No. 10-07-00323-CR, 2009 Tex.App.

LEXIS 2962, at * 11-12 (Tex.App.—Waco April 29, 2009, no pet.) (mem. op., not

designated for publication) (statement made ten or eleven hours after assault

admissible as excited utterance); Mayfield v. State, No. 04-02-00635-CR, 2003

Tex.App. LEXIS 7660, at *5-6 (Tex.App.--San Antonio Sept. 3, 2003, pet. ref'd) (mem.

op., not designated for publication) (statement made after ten hours was admissible).

                                            7
See also Snellen v. State, 923 S.W.2d 238, 242-43 (Tex.App.--Texarkana 1996, pet.

ref'd) (statement made after 12-13 hours admissible). While the exact timeline is not

clear here, we see no abuse of discretion in the trial court’s admitting the statements of

Q.M.’s mother concerning his use of methamphetamine, even if the statements were

made several hours after Q.M. smoked the substance. From the officer’s testimony, it

seems clear Q.M. still was displaying symptoms of his ingestion of methamphetamine at

the time of the mother’s statements.


      Appellant makes similar arguments with regard to Q.M.’s statement to the officer

that he smoked a “30 bag” of methamphetamine. Q.M. testified that after smoking

methamphetamine and marijuana,6 he “felt weird in [his] arms and I left. I started

walking to my house and my mother picked me up.” He described the “weird” feeling in

his arms as “freezing up, going up.”             Although he said he had smoked

methamphetamine before, he had never before experienced such feelings. The trial

court reasonably could have determined the symptoms of overdose were startling to

him, and that the challenged statement was made under the stress of his condition.

There was nothing self-serving about the statement in that context and was not in

response to an interrogation. The admission of Q.M.’s statement was within the range

of reasonable disagreement, and so not an abuse of discretion.         Montgomery, 810

S.W.2d at 389.


      Alternatively, Q.M.’s statement was admissible under Rule 803(24), as a

statement against interest. Under that provision, such a statement is one which was “at

      6
        He testified he smoked the methamphetamine and then went to Dann’s house
and smoked marijuana for about ten minutes. 
                                            8
the time of its making…so far tended to subject the declarant to civil or criminal

liability…that a reasonable person in declarant’s position would not have made the

statement unless believing it to be true.”7 Q.M. admitted to using .5 grams of

methamphetamine, therefore admitting to a criminal offense. See Tex. Health & Safety

Code Ann. § 481.115(b)) (West 2010) (providing possession of a controlled substance

in an amount less than one gram is a state jail felony).


       We overrule appellant’s fifth and sixth points of error.


Objection to Witness and Motion for Continuance


       Appellant contends in his seventh point of error that the trial court erred when it

overruled his objection and denied his motion for continuance in connection with the

presentation of Mark McCain, an employee of the Dallas commercial laboratory, as a

witness by the State. Appellant asserts the State failed to properly disclose McCain as

a witness, and by failing to do so, operated to surprise appellant and prevented him

from seeking his own expert to assist him in cross-examination. McCain’s testimony

was used to establish Q.M. had methamphetamine in his urine.


       In criminal prosecutions, "[n]otice of the State's witnesses shall be given upon

request." Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993). If the trial court

allows a witness who does not appear on the State's witness list to testify, then we must

determine whether the prosecutor's actions constituted bad faith and whether the


       7
             Additionally, in criminal cases, a statement tending to expose the declarant to
criminal liability is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement. Tex. R. Evid. 803(24). The medical evidence provided
corroboration indicating the trustworthiness of Q.M.’s statement to the officer. 
                                               9
defense could have reasonably anticipated the witness' testimony. Id. In considering

whether the State acted in bad faith, reviewing courts have considered the following

three areas of inquiry: (1) whether the defense shows that the State intended to

deceive; (2) whether the State's notice left the defense adequate time to prepare; and

(3) whether the State freely provided the defense with information (e.g., by promptly

notifying the defense of new witnesses, by providing updated witness lists, or by

maintaining an open file policy). Martinez v. State, 131 S.W.3d 22, 29 (Tex. App.--San

Antonio 2003, no pet.).


      We review the granting or denial of a motion for continuance under an abuse of

discretion standard. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). To

show the trial court abused its discretion in refusing to grant a motion for continuance,

the defendant must show he was prejudiced by his counsel's inadequate preparation

time. Id.; Duhamel v. State, 717 S.W.2d 80, 83 (Tex.Crim.App. 1986).


      Here, more than a month before trial, the State provided notice it intended to rely

on documents from the Dallas lab, LabCorp.        Nineteen days before trial, the State

supplemented its witness list to include an unnamed LabCorp technician. Four days

before trial, the State provided to appellant the name of the technician, Mark McCain.

At trial, the court found no undue surprise because appellant was timely notified a

LabCorp technician would testify, and offered appellant the opportunity to take time to

interview McCain. Prior to McCain’s testimony, appellant informed the court he had

visited with McCain. Appellant also conducted a complete cross-examination of McCain.




                                           10
       There was no showing or allegation the prosecutor acted in bad faith. As the trial

court found, appellant could have reasonably anticipated the testimony of McCain. The

trial court offered appellant the opportunity to take time to interview McCain before cross

examining him and appellant did so. We see no abuse of discretion in the trial court’s

denial of appellant’s motion for continuance or its permitting McCain to testify. We

overrule appellant’s seventh point of error.


Rule of Evidence 403 objections


       In his last three points of error, appellant argues the trial court erred in permitting

the hearsay testimony of the responding officer and Q.M.’s mother over his objection

that the testimony violated Rule 403 of the Rules of Evidence. Two of the challenged

statements are the same as were addressed in appellant’s fifth and sixth points of error:

the responding officer’s testimony Q.M.’s mother told him “she thought her son had

overdosed on methamphetamine”; and the officer’s testimony Q.M. told him “he had

smoked a 30 bag of methamphetamine.”                The trial court overruled both Rule 403

objections, based on the Rule 403 balancing test.


       Whether evidence is admissible under Evidence Rule 403 is a decision within the

sound discretion of the trial court. Montgomery, 810 S.W.2d at 386, 389. Rule 403

allows for the exclusion of otherwise relevant evidence when its probative value "is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence." Tex. R. Evid. 403. Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than

                                               11
prejudicial. Montgomery, 810 S.W.2d at 389. A trial court must balance (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent's need for

that evidence against (3) any tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury from the

main issues, (5) any tendency of the evidence to be given undue weight by a jury that

has not been equipped to evaluate the probative force of the evidence, and (6) the

likelihood that presentation of the evidence will consume an inordinate amount of time

or repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 879-880

(Tex.Crim.App. 2007).


       Here, the probative value of the evidence was not substantially outweighed by

the danger of unfair prejudice. Tex. R. Evid. 403. “Unfair prejudice does not, of course,

mean that the evidence injures the opponent's case -- the central point of offering

evidence. Rather it refers to an undue tendency to suggest decision on an improper

basis, commonly, though not necessarily, an emotional one.” Cohn v. State, 849 S.W.2d

817, 820 (Tex.Crim.App. 1993) (quoting GOODE, ET. AL., TEXAS PRACTICE: TEXAS

RULES OF EVIDENCE: CIVIL AND CRIMINAL, § 403.2 (1988)).                   The challenged

testimony was evidence the victim identified the substance he received as

methamphetamine. The evidence was strongly probative of elements of the State’s

case, and we see little risk it would suggest a decision on an improper basis. The court

did not abuse its discretion in its rulings on the Rule 403 objections.


       Appellant raises the same contention with regard to the mother’s testimony that

appellant told her he did not sell methamphetamine to Q.M. but he did smoke

                                             12
methamphetamine with the boy. This statement was apparently made the Sunday

before trial at Q.M.’s grandmother’s house. The statement, an admission by appellant,8

also had strong probative value, both as to appellant’s conduct and his culpable mental

state. Unquestionably it prejudiced appellant’s defense, but the trial court was correct to

find its prejudice was not unfair.


        We overrule appellant’s eighth, ninth and tenth points of error.


        Having overruled each of appellant’s contentions, we affirm the judgment of the

trial court.




                                                           James T. Campbell
                                                                Justice




Do not publish.




        8
             See Tex. R. Evid. 801(e)(2) (admission by party opponent).  
                                               13
