

 
 


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
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
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. 
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
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
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
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
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.

	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
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.
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
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.

 
