                            NUMBER 13-13-00574-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

OSCAR PINEDA,                                                       Appellant,

                                         v.

THE STATE OF TEXAS,                                                  Appellee.


               On appeal from the County Court at Law No. 2
                        of Nueces County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Longoria
            Memorandum Opinion by Chief Justice Valdez
      A jury convicted appellant Oscar Pineda of the misdemeanor offenses of

possession of a controlled substance (Hydrocodone) and possession of marihuana. See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.121(b)(1), 481.117(b) (West, Westlaw through

Ch. 46 2015 R.S.). By three issues, appellant contends the following: (1) the trial court

erred in denying his motion to suppress; (2) the evidence was legally insufficient to
support the jury’s finding of probable cause to arrest him; and (3) the evidence was legally

insufficient to support the jury’s finding that he knowingly possessed a controlled

substance, namely Hydrocodone. We affirm.

                                   I.     BACKGROUND

       Appellant was arrested outside of a bar for public intoxication when police officers

responded to a disturbance call. The arresting officer searched appellant incident to his

arrest for public intoxication and found a marihuana cigarette and a pill—later determined

to contain Hydrocodone—in his front right pant pocket. Appellant was charged with

possessing marihuana and Hydrocodone. See id.

       Prior to trial, appellant filed a motion to suppress the marihuana and the pill,

alleging the police officer lacked probable cause to arrest him for public intoxication and

therefore conducted an unreasonable search under the Fourth Amendment. The trial

court held a hearing on appellant’s motion to suppress. The State did not call any

witnesses at this hearing and instead moved to admit the arresting officer’s police report

into evidence. The trial court admitted the police report into evidence over appellant’s

objection that the report contained testimonial hearsay and therefore violated his Sixth

Amendment right to confront and cross-examine the arresting officer. Attached to the

police report is the arresting officer’s sworn probable cause statement, which contains the

following narrative:

       On [October 26, 2012], I [arresting officer] was dispatched to [the bar] in
       reference to a disturbance in progress. Upon arrival, I was guided by bar
       patrons to the back patio of the bar. They pointed out [appellant] as one of
       the individuals involved in the disturbance. [Appellant] had a strong odor of
       alcoholic beverage emitting from his person, blood shot eyes and slurred
       speech. [Appellant] was unsteady on his feet. Due to [appellant’s]
       condition, I believe[d] him to be a danger to himself and others. [Appellant]
       was arrested for public intoxication. Search incident to arrest, a marijuana

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       cigarette was located in [appellant’s] front right pocket. Also in that pocket
       a pink oval pill with ’3605 marking was located. The pill was checked on
       drugs.com pill identifier to be hydrocodone. [Appellant] could provide no
       prescription.

       After the State rested, appellant called the bartender of the bar on the night of his

arrest. The bartender’s testimony was in conflict with the facts detailed in the police

report. After considering the evidence admitted at the suppression hearing, the trial court

denied appellant’s motion to suppress.

       The case proceeded to trial, during which the State called the arresting officer to

testify to the facts of appellant’s arrest. On cross examination, appellant asked the

arresting officer questions regarding the propriety of the arrest. After both sides rested,

the trial court specifically instructed the jury to disregard any evidence found on appellant

if they believed that the arresting officer lacked probable cause to arrest him for public

intoxication.   The jury returned a verdict of guilty on both charges—possession of

marihuana and possession of a controlled substance. This appeal followed.

                               II.    MOTION TO SUPPRESS

       By his first issue, appellant generally asserts that the trial court conducted the

suppression hearing in error by admitting the police report into evidence in lieu of live

testimony from the arresting officer. We construe appellant’s first issue as involving three

sub-issues, which we address separately below.

   1. SUB-ISSUE ONE: TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 28.01 § 1(6)

       By his first sub-issue, appellant argues that the trial court was not allowed to

consider the police report because the arresting officer did not provide an affidavit

attesting to the narrative set out in the report in violation of Texas Code of Criminal

Procedure article 28.01 section 1(6). See TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6)

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(West, Westlaw through Ch. 46 2015 R.S.) Article 28.01 section 1(6) provides that when

the trial court holds a hearing on a motion to suppress, “the court may determine the

merits of said motion on [1] the motions themselves, or [2] upon opposing affidavits, or

[3] upon oral testimony, subject to the discretion of the court [.]” Id. (emphasis added).

However, our review of the probable cause statement (State’s exhibit two) admitted into

evidence at the suppression hearing reflects that the arresting officer did provide a sworn

affidavit attesting to the facts stated in the police report. Nevertheless, in Ford v. State,

the court of criminal appeals held that a trial court does not abuse its discretion under

article 28.01 section 1(6) in deciding a motion to suppress based on an unsworn police

report. 305 S.W.3d 530, 539–40 (Tex. Crim. App. 2009) (holding that a “trial court may

conduct the [suppression] hearing based on motions, affidavits or testimony, but there is

nothing in [article 28.01 section 1(6)] to indicate that it must”) (emphasis in original). Thus,

the trial court did not violate article 28.01 section 1(6) when it considered the police report

in lieu of the arresting officer’s live testimony.

   2. SUB-ISSUE TWO: CONFRONTATION CLAUSE

       By his second sub-issue, appellant argues that the trial court violated his right of

confrontation under Crawford v. Washington, 541 U.S. 36 (2004) when it admitted the

police report into evidence at the suppression hearing without affording him an

opportunity to cross-examine the arresting officer at that hearing. In accordance with

Crawford, “we must first determine whether the Confrontation Clause is implicated in this

case before deciding if the constitutional guarantee was violated [.]” See Woodall v. State,

336 S.W.3d 634, 642 (Tex. Crim. App. 2011).




                                                     4
        In Crawford, the United States Supreme Court held that the Confrontation Clause

bars the admission of testimonial hearsay at trial unless the declarant is unavailable and

the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S.

at 54. While the constitutional right recognized in Crawford clearly attaches at the time

of trial, the Court did not indicate whether it intended the right to apply with equal force at

a pretrial suppression hearing. Our research indicates that neither our Court1 nor the

court of criminal appeals2 has directly decided whether the Confrontation Clause applies

at a pretrial suppression hearing, and there appears to be a split of authority among the

Texas intermediate courts on the issue.3 While we acknowledge the disagreement

among the Texas intermediate courts, we decline appellant’s invitation to decide the


         1 See Morales v. State, 222 S.W.3d 134, 141 (Tex. App.—Corpus Christi 2006, no pet.) (finding no

violation of the right to confrontation where appellant was given the opportunity to submit written
interrogatories to an unavailable child-complainant under a statutorily authorized procedure); Vasquez v.
State, No. 13-13-00136-CR, 2014 WL 4795003, at *1 (Tex. App.—Corpus Christi Sept. 25, 2014, no pet.)
(mem. op., not designated for publication) (holding that appellant failed to preserve his complaint that the
absence of live testimony at the suppression hearing violated his confrontation rights where he failed to
object on that ground, and further observing—albeit in dicta—that even had appellant objected on that
ground, the complaint lacked merit because article 28.01 section 1(6) allows a trial court to decide a
suppression motion without hearing live testimony).

         2 See Ford v. State, 305 S.W.3d 530, 541 (Tex. Crim. App. 2009) (coming close to resolving the

issue—and arguably resolving the issue by implication against appellant—but ultimately reversing the
judgment of the court of appeals under Texas Code of Criminal Procedure article 28.01 section 1(6) and
affirming the judgment of the trial court).
        3  Compare Vanmeter v. State, 165 S.W.3d 68, 74–75 (Tex. App.—Dallas 2005, pet. ref’d) (holding
that the right of confrontation is a trial right, not a pretrial right, and therefore does not apply at a pretrial
suppression hearing), and Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref'd)
(same), with Curry v. State, 228 S.W.3d 292, 298 (Tex. App.—Waco 2007, pet. ref'd) (holding that the right
of confrontation extends to pretrial suppression hearings), and Kuhn v. State, No. 04-08-00927-CR, 2009
WL 2878110, at *3 (Tex. App.—San Antonio Sept. 9, 2009, no pet.) (mem. op., not designated for
publication) (assuming that the admission of a 911 tape at the suppression hearing violated appellant’s
right of confrontation, but finding any error in its admission at the suppression hearing harmless beyond a
reasonable doubt); Whitfield v. State, No. 07-14-00086-CR, 2015 WL 1612101, at *2 (Tex. App.—Amarillo
Apr. 9, 2015, pet. ref’d) (mem. op., not designated for publication) (recognizing that the issue of whether
the Confrontation Clause applies to a pre-trial suppression hearing is still subject to debate). We also note
that many other jurisdictions outside Texas have held that the Confrontation Clause does not apply to
preliminary hearings. See People v. Felder, 129 P.3d 1072 (Colo. Ct. App. 2005); Gresham v. Edwards,
281 Ga. 881, 644 S.E.2d 122 (2007); State v. Rivera, 144 N.M. 836, 192 P.3d 1213 (2008); Sheriff v.
Witzenburg, 122 Nev. 1056, 145 P.3d 1002 (2006); State v. Woinarowicz, 720 N.W.2d 635 (N.D. 2006).


                                                            5
question for our Court today because appellant cross examined the arresting officer at

trial regarding the propriety of his arrest and thereby mooted the issue.

       In reviewing a trial court’s ruling on a motion to suppress, we generally may

consider only evidence presented at the pretrial suppression hearing. See Rachal v.

State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). But when the parties consensually

re-litigate the suppression issue at trial, our review of the evidence is not limited to the

evidence adduced at the suppression hearing but also includes the relevant testimony

and evidence admitted at trial. Id. Here, we find that appellant fully re-litigated the

suppression issue at trial because appellant cross examined the arresting officer

regarding the propriety of the arrest, and the trial court instructed the jury that it could not

consider any evidence found on appellant if the officer lacked probable cause to arrest

him for public intoxication. Because appellant re-litigated the suppression issue at trial,

our review of the suppression evidence is not limited to the police report that appellant

argues was admitted in error at the suppression hearing under Crawford, but also

includes the arresting officer’s trial testimony regarding the propriety of the arrest. See

Turrubiate v. State, 399 S.W.3d 147, 150–51 (Tex. Crim. App. 2013). Considering our

expanded review of the suppression evidence, we conclude that appellant’s subsequent

cross examination of the arresting officer at trial regarding the propriety of appellant’s

arrest effectively mooted any complaint about the failure of the arresting officer to testify

at the suppression hearing under Crawford.

       In the alternative, assuming without deciding that admitting the police report

violated appellant’s right to cross examine the arresting officer at the suppression hearing,

we conclude that the error was harmless beyond a reasonable doubt because appellant



                                                  6
cross examined the arresting officer at trial on the suppression issue. See TEX. R. APP.

P. 44.(2)(a); see also Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998)

(finding, in context of constitutional error, that the exclusion of testimony is harmless

where the same testimony is later admitted at trial); Baldree v. State, 248 S.W.3d 224

(Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (holding that, although the trial court

violated the confrontation clause by not allowing the defendant to cross-examine the

officer with his prior inconsistent statement, the violation was harmless where the same

statement was later presented to the jury).

   3. SUB-ISSUE THREE: LIVE TESTIMONY

       By his third sub-issue, appellant argues that the trial court abused its discretion in

finding that the arresting officer had probable cause to arrest him for public intoxication

because the trial court heard no live testimony from the arresting officer at the suppression

hearing. However, as previously mentioned, a trial court does not abuse its discretion in

deciding to hear a motion to suppress without live testimony. See Ford, 305 S.W.3d at

539–40. For these reasons, we overrule appellant’s first issue.

                                III.    LEGAL SUFFICIENCY

       By his second and third issues, appellant challenges the legal sufficiency of the

evidence to support the following two findings of the jury: (1) the arresting officer had

probable cause to arrest appellant for public intoxication; and (2) appellant knowingly

possessed Hydrocodone that weighed less than twenty-eight grams.

   A. STANDARD OF REVIEW

       We conduct our legal sufficiency review by applying the Jackson v. Virginia

standard of review. See Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010)



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(plurality op.). Under this standard, the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 902 n.19. The jury is the

“exclusive judge of the credibility of witnesses and of the weight to be given testimony,

and it is also the exclusive province of the jury to reconcile conflicts in the evidence.”

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The standard for

reviewing the sufficiency of the evidence is the same for both direct and circumstantial

evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). A hypothetically correct jury charge is one that “sets out the law, is authorized

by the indictment, does not unnecessarily increase the state's burden of proof or

unnecessarily restrict the state's theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Id.

   B. PROBABLE CAUSE TO ARREST

       By his second issue, appellant challenges the sufficiency of the evidence to

support the jury's finding that the arresting officer had probable cause to arrest him for

public intoxication. However, a legal sufficiency review is only appropriate regarding the

State's proof of the elements of the offense, not the jury's implied finding of facts

supporting probable cause to arrest. See Hanks v. State, 137 S.W.3d 668, 672 (Tex.

Crim. App. 2004); see also Malik, 953 S.W.2d at 240. To convict appellant of the charged

offenses, the State was required to prove that he intentionally or knowingly possessed a



                                                 8
specified quantity of marihuana and Hydrocodone. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.121, 481.117. The presence or absence of probable cause to arrest appellant for

public intoxication is not an element of these offenses. See id.; Hanks, 137 S.W.3d at

671 (holding that whether or not evidence is illegally obtained is not an element of the

offense and therefore not subject to a sufficiency review). Because appellant does not

address the evidence supporting the elements of the offenses, there is nothing left to

address as to the sufficiency challenge raised in his second issue.         We overrule

appellant’s second issue.

   C. POSSESSION OF HYDROCODONE

      By his third issue, appellant challenges the sufficiency of the evidence to support

his conviction for possession of a controlled substance. Specifically, appellant contends

that the State failed to prove (1) that he knowingly possessed a controlled substance; and

(2) that the pill he allegedly possessed contained Hydrocodone. We address each

sufficiency challenge separately below.

   1. POSSESSION

      To prove possession of a controlled substance, “the State must prove that: (1) the

accused exercised control, management, or care over the substance; and (2) the accused

knew the matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405

(Tex. Crim. App. 2005). A person acts knowingly, or with knowledge, with respect to the

nature of his conduct or to circumstances surrounding his conduct when he is aware of

the nature of his conduct or that the circumstances exist. See TEX. PENAL CODE ANN. §

6.03(b) (West, Westlaw through Ch. 46 2015 R.S.). Knowledge may be inferred from the




                                               9
person's acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.

2002).

         Here, the arresting officer testified that he recovered the pill from appellant’s front

right pant pocket. The court of criminal appeals has repeatedly held that there is sufficient

evidence for a jury to find that the accused has knowledge of and control over contraband

when it is found in his hands or clothing. See Frazier v. State, 480 S.W.2d 375, 381 (Tex.

Crim. App. 1972) (contraband in coat); Salinas v. State, 479 S.W.2d 913, 914–15 (Tex.

Crim. App. 1972) (contraband in cigarette pack handed by defendant to jailor); Kwant v.

State, 472 S.W.2d 781, 783 (Tex. Crim. App. 1971) (contraband in paper bag in

defendant's hands). Furthermore, appellant admitted at trial that he knew the pill required

a prescription because a doctor prescribed it to his wife. Viewing the evidence in the light

most favorable to the prosecution, we hold that the evidence was legally sufficient for a

rational jury to conclude that appellant knowingly possessed a controlled substance

because he exclusively possessed a pill that he knew could not be obtained without a

prescription.4 See Brooks, 323 S.W.3d at 902 n.19.

    2. HYDROCODONE

         Appellant also contends that the State failed to prove that the pill he possessed

actually contained Hydrocodone in an amount proscribed by the law.                                   Under a

hypothetically correct jury charge, the State was required to prove that the pill contained

less than fifteen milligrams of Hydrocodone, and that the pill’s aggregate weight, including




        4 Appellant testified at trial that the arresting officer found the pill somewhere inside his car and not

inside his clothing. However, the jury was the sole judge of appellant’s credibility and could choose to
believe or disbelieve all or any part of his testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim.
App. 2008). In this case, the jury apparently chose to believe the arresting officer’s testimony that appellant
possessed the pill in his pocket and to disbelieve appellant’s testimony to the contrary.

                                                           10
adulterants or dilutants, was less than twenty-eight grams. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.104(a)(4), 481.117(b); see also Melton v. State, 120 S.W.3d 339, 344

(Tex. Crim. App. 2003). Here, the drug-evidence custodian called by the State testified

that he determined the chemical composition and weight of the pill by using the website

“Drugs.com.” Specifically, the evidence custodian testified as follows, which drew no

objection from appellant:

      When it comes to pharmaceutical pills, we utilize an online pharmaceutical
      drug site called Drugs.com. We punch in the imprint codes of the pill and
      in this particular case the imprint code was V on one side and 3605 on the
      other. I punched that number into the computer system and the online
      reference identified it as Acetaminophen, 325 milligrams and Hydrocodone
      [], 7.5 milligrams. That pill also had an approximate weight of 0.40 grams.
      And the site also provides me with a picture of that exact same pill.

Thus, the jury heard evidence that the pill weighed less than twenty eight grams and

contained 7.5 milligrams of Hydrocodone based on the alphanumeric code engraved on

the pill itself, according to Drugs.com. Compare Manning v. State, 637 S.W.2d 941, 943

(Tex. Crim. App. 1982) (concluding that the State failed to prove that the pills at issue

contained phenmetrazine, a controlled substance, where the pills were not described by

markings, if any, which appeared on the pill, or shape, but instead only by color); with

Shaffer v. State, 184 S.W.3d 353, 361 (Tex. App.—Fort Worth 2006, pet. ref'd) (holding

that the evidence was legally sufficient to prove that the sealed cold medicine packages

at issue contained pseudoephedrine, a controlled substance, where the packages

introduced   by   the   State   included   labeling   indicating   its contents   contained

pseudoephedrine). Furthermore, the evidence custodian testified that Drugs.com is a

reliable source to identify drugs and that, to his knowledge, the website had not

misidentified a drug in the previous six years. The jury was free to judge the evidence



                                                11
custodian’s credibility as well as the strength of the evidence. See Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999).

        Viewed in the light most favorable to the verdict, we hold that this evidence was

legally sufficient to prove the contents of the pill and therefore established the identity of

the illegal substance, and its prohibited quantity, for the jury.5 See Brooks, 323 S.W.3d

at 902 n.19. We overrule appellant’s third issue.

                                         IV.     CONCLUSION

        We affirm the judgment of the trial court.

                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ,
                                                         Chief Justice


Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
10th day of September, 2015.




       5 Appellant argues that the State failed to prove that he possessed less than fifteen milligrams of

Hydrocodone because a drug recognition expert did not test the pill to confirm its weight and chemical
composition. However, appellant cites no authority, and we find none, indicating that a conviction for
possession of Hydrocodone cannot stand without the testimony of a drug recognition expert.

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