                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00200-CR


KRISTIN VANWINKLE                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE



                                   ------------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

                       MEMORANDUM OPINION1
                                   ------------

      In three issues, appellant Kristin Vanwinkle appeals her conviction for

obtaining or possessing hydrocodone through the use of a fraudulent

prescription.2 She argues that the trial court erred by excluding evidence that

she tested negative for drugs, by denying her discovery of a witness’s



      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Health & Safety Code Ann. § 481.129(a)(5) (Vernon 2010).
fingerprints, and by failing to make a reporter’s record of bench conferences.

We affirm.

                                 Background Facts

The facts as told by the State’s witnesses

      Candice Porter worked as a pharmacy technician at a Kroger store in

Frisco.     One evening in August 2007, appellant, who regularly visited the

pharmacy and who Porter knew by sight, came to the pharmacy’s drop-off

window. Pharmacist Lily Yang was working with Porter that night and also saw

appellant in the store.

      Appellant told Porter that she needed some medicine because her son had

been in a baseball accident, and she handed Porter a Lortab3 prescription that

contained the name of Dr. Neil Jacobson, was dated 8-22-07, and was written for

―Austin Van Winkle.‖4 Porter initialed the prescription, which contained an old,

incorrect address for Dr. Jacobson’s office. She then printed out a label for the

prescription bottle. After the bottle had been filled, appellant picked it up and

signed a document to indicate that she had received it.5




      3
      According to testimony, Lortab is a pain medicine that contains codeine,
acetaminophen, and hydrocodone; hydrocodone is a controlled substance.
      4
          Yang said that she heard appellant tell the same baseball accident story.
      5
      On the same document that Porter says appellant signed, Porter wrote
―mom‖ to indicate that appellant had picked up the medicine for Austin, her son.

                                           2
      The transaction between Porter and appellant lasted for about fifteen

minutes. After appellant received the bottle, she spoke with Yang about how

Austin, her son, could take the medicine. According to Yang, the only people

around the pharmacy at the time of appellant’s visit were her, appellant, and

Porter.

      After appellant left the pharmacy area, one of Kroger’s customer service

employees, Debra Smith, called the pharmacy because Smith suspected that

appellant was shoplifting. Yang became suspicious about the prescription and

wanted to verify it.

      The next day, a pharmacy employee called Dr. Jacobson’s office and

learned that the prescription had been forged. On the request of Dr. Jacobson’s

office, Yang called the police to tell them about the forgery.

      Days later, Frisco Police Department Sergeant Jay Reim went to Kroger to

investigate and noticed that another officer was already there and was talking to

appellant, who had coincidentally returned to the store. Sergeant Reim took only

a photocopy of the prescription that Porter had received because it is Kroger’s

policy to retain original prescriptions and he did not believe that a fingerprint

analysis would be useful since the prescription was likely touched by many

people. He met with appellant a few days later, and the police eventually got a

warrant and arrested her.




                                          3
The facts as told by appellant’s witnesses

      Appellant called Kroger store manager Donny Pauling as a witness to

discredit Porter’s and Yang’s testimony by establishing that no one was working

in customer service on the night that appellant allegedly obtained the

prescription. Pauling said that Smith (who, according to Porter, made the call

from customer service about appellant’s alleged shoplifting) was working on the

night in question, but Pauling conceded that Smith’s time card said that she was

working near the self-checkout register. Pauling explained that Smith typically

worked as a customer service supervisor and that employees may work at

―different places in their shift.‖ He said that the information on Smith’s time card

did not mean that she did not work in customer service on the evening in

question.

      Appellant also presented testimony from Jimmy Chilcutt, a retired police

latent fingerprint examiner.      Chilcutt said that he compared appellant’s

fingerprints to eleven fingerprints from the prescription that appellant allegedly

gave to Porter.    He testified that none of the eleven fingerprints matched

appellant’s fingerprints. On cross-examination, Chilcutt admitted that he could

not testify that appellant did not touch the prescription but only that none of the

eleven fingerprints on the prescription belonged to her. Chilcutt admitted that

more than three people touched the prescription before he examined it and that

several fingerprints on the prescription overlapped.



                                         4
      Appellant testified that she went to Kroger about twice a week in 2007.

She said that on the night in question, she ate pizza with friends and her son and

did not go to Kroger. She said that when she later saw Sergeant Reim at Kroger,

she offered to let him search her bag and her car for a prescription pad.

      Appellant explained her belief that someone, including maybe her mother,

Patricia Lund, set her up, although she conceded that she did not tell Sergeant

Reim about that theory.6     She believed that Porter and Yang lied or were

mistaken. However, she agreed that the written description that Porter put in her

written statement to police substantially matched her physical characteristics.

Procedural history

      A grand jury indicted appellant for fraudulently obtaining or possessing

hydrocodone. Appellant filed several pretrial documents and then pled not guilty.

The jury found appellant guilty, and after hearing evidence related to her

punishment, it assessed ten years’ confinement but recommended suspension of

the confinement while appellant participated in community supervision. The trial

court sentenced her accordingly. Appellant filed her notice of appeal.

                       Exclusion of Drug Test Evidence

      In her first issue, appellant contends that the trial court erred by excluding

evidence showing that she tested negative for drugs after her arrest. Before the

beginning of the trial, appellant filed business records from Sur-Scan Inc. that

      6
       When Lund testified, she denied that she set up appellant and opined that
appellant has a poor character for being truthful.

                                         5
showed that she tested negative for several drugs in March 2008. The State

responded by filing a motion that asked the trial court to exclude any reference to

appellant’s drug testing because it was irrelevant under rules of evidence 401

and 403. See Tex. R. Evid. 401, 403. Appellant contended that (1) while the use

of hydrocodone is not an element of appellant’s crime, the lack of appellant’s use

of that drug shows an absence of motive to commit the crime, and (2) a jury

could infer that the true identity of someone who fraudulently obtained

hydrocodone is more likely to be a user of the drug than a nonuser.

      The trial court held a hearing on the admissibility of the test results during

the trial but outside of the jury’s presence. The court took judicial notice of its file,

which included the documents containing the results.              However, the court

determined that the results were irrelevant and inadmissible in the guilt-phase of

the trial, reasoning, ―[Appellant’s] not charged with using drugs. She’s charged

with possessing drugs. What she did with them after the fact . . . is not an

element that the State’s required to prove.‖ Appellant contends on appeal that

the trial court erred because the evidence is relevant and admissible.

      However, even if we were to conclude that the trial court should have

admitted the drug test evidence, we would then have to determine whether the

exclusion of that evidence caused harm.           Rule of appellate procedure 44.2

explains that if constitutional error is subject to harmless error review, ―the court

of appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

                                           6
conviction or punishment.‖ Tex. R. App. P. 44.2(a). A nonconstitutional error

―that does not affect substantial rights must be disregarded.‖ Tex. R. App. P.

44.2(b).

       ―[T]he exclusion of a defendant’s evidence will be constitutional error only if

the evidence forms such a vital portion of the case that exclusion effectively

precludes the defendant from presenting a defense.‖ Potier v. State, 68 S.W.3d

657, 665 (Tex. Crim. App. 2002). In other words, that the defendant is unable to

present his or her case to the extent and in the form desired does not rise to

constitutional error when the defendant is not prevented from presenting the

substance of his or her defense to the jury. Id. at 666; see Ray v. State, 178

S.W.3d 833, 835–36 (Tex. Crim. App. 2005) (stating that evidentiary rulings

rarely rise to the level of denying the fundamental constitutional rights to present

a meaningful defense and explaining that evidence that ―incrementally further[s]

[a] defensive theory‖ is not of constitutional dimension); West v. State, 169

S.W.3d 275, 279–80 (Tex. App.—Fort Worth 2005, pet. ref’d) (―Generally, the

erroneous admission or exclusion of evidence is non-constitutional error

governed by rule 44.2(b) if the trial court’s ruling merely offends the rules of

evidence.‖); Ex parte Twine, 111 S.W.3d 664, 668 (Tex. App.—Fort Worth 2003,

pet. ref’d).

       The exclusion of appellant’s drug test results may have affected a method

used to present her defense—that she did not present the forged prescription at

Kroger—but the remaining evidence enabled her to present that defense by

                                          7
urging that Porter and Yang lied or were mistaken, that someone set her up, that

Sergeant Reim’s investigation was inadequate, that her fingerprints did not match

those on the prescription, and that she had an alibi on the night the prescription

was presented. Because we determine that the exclusion of appellant’s drug test

evidence, even if it was error, is not of constitutional dimension, we must apply

rule 44.2(b). See Tex. R. App. P. 44.2(b); Potier, 68 S.W.3d at 666; Elmore v.

State, 116 S.W.3d 801, 808 (Tex. App.—Fort Worth 2003, pet. ref’d).

      An error affects a defendant’s substantial rights when it has a substantial

and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,

328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have ―fair assurance that the error did not influence

the jury, or had but a slight effect.‖ Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001).

      In making the harm determination, we review the record as a whole,

including any testimony or physical           evidence admitted for the jury’s

consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002). We may also consider the jury instructions, the State’s theory and

any defensive theories, whether the State emphasized the error, closing

arguments, and even voir dire, if applicable. Id. at 355–56; see Walters v. State,

                                          8
247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (―[I]t is the responsibility of the

reviewing court to decide whether it is likely that the error had some adverse

effect on the proceedings.‖); Davis v. State, 268 S.W.3d 683, 709 (Tex. App.—

Fort Worth 2008, pet. ref’d) (―[E]vidence of an appellant’s guilt is one factor to

consider in performing a harm analysis under rule 44.2(b).‖).

      Here, the jury was squarely confronted with making a determination

between the credibility of Porter and Yang, who unequivocally told them that

appellant presented the forged prescription, and appellant, who said that she did

not. The admission of appellant’s negative drug test results would not have

made Porter’s and Yang’s eyewitness testimony any less credible. Also, even if

evidence that appellant did not use hydrocodone for a period of time near the

offense tangentially relates to whether she fraudulently obtained it or possessed

it on the day of the offense, the jury was obviously not persuaded by other

testimony about the nondiscovery of her fingerprints on the prescription, which

more directly related to her involvement in the crime.

      Next, the admission of the results would not have necessarily added

credence to appellant’s story because, as the trial court explained, appellant’s

nonuse of hydrocodone does not exculpate her from fraudulently obtaining or

possessing it; she could have been a courier of the drug. And the jury had

reasons to discredit appellant’s testimony. First, although appellant testified that

she ate pizza with several people on the night that the prescription was

presented, she did not call any of those people to corroborate that story.

                                         9
Second, during the State’s cross-examination of appellant, in several responses,

she denied telling Sergeant Reim that her son might have had something to do

with the fraudulent prescription. But the recording of appellant’s interview with

Sergeant Reim clearly shows that she did imply that her son was involved in this

crime.       Finally, appellant’s mother told the jury that appellant has a poor

character for truthfulness.

         Appellant relies on the court of criminal appeals’s opinion in Ray to

contend that she was harmed by the exclusion of the drug test results. 178

S.W.3d at 833–36.        In Ray, the defendant was convicted of possessing a

controlled substance with intent to deliver, and the trial court had excluded

evidence that would have shown that the drugs might have belonged to someone

else. Id. at 834.7 The court of criminal appeals determined that the exclusion

was harmful, reasoning,

         A review of the record as a whole reveals that the question of
         possession was not only the most important issue in the case, it was
         the only contested issue in the case. Appellant was prejudiced
         because she was precluded from presenting third-party witness
         testimony which would have corroborated and given independent
         credibility to the defense she sought to establish.        Because
         appellant’s only argument was that she did not possess the drugs,
         and the State’s case rested on a contrary argument, the erroneous
         exclusion of testimony that tended to establish possession in
         another was a ―serious‖ error.


         7
        Specifically, the trial court excluded testimony from a witness who would
have established that the driver of the car that Ray was in took a cocaine rock
similar to one that the police found and gave it to the witness just before Ray and
the driver of the car were stopped by police. Id. at 835.

                                         10
Id. at 836 (emphasis added). Unlike in Ray, the excluded evidence in this case

was not from a third-party eyewitness, and it would not have tended to establish

that someone else in particular presented the forged prescription; rather, as

recognized by appellant, her nonuse of hydrocodone related to only one of her

possible motives to present the prescription.8

      For all of these reasons, we conclude that, in the context of the entire case

against appellant, the trial court’s alleged error in excluding the drug test results

did not have a substantial or injurious effect on the jury’s verdict and did not

affect appellant’s substantial rights. See King, 953 S.W.2d at 271. Thus, we

disregard the alleged error. See Tex. R. App. P. 44.2(b); McKinney v. State, 59

S.W.3d 304, 312–13 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding that, in a

case where the defendant was charged with intentionally or knowingly causing

bodily injury to a child, the trial court’s exclusion of testimony from the child that

the defendant did not intend to cause the injury was harmless because there was

other testimony about the child’s burns being caused by forced immersion in hot

water and the defendant provided inconsistent testimony); Hughes v. State, 12

S.W.3d 166, 168 (Tex. App.—Fort Worth 2000, no pet.); cf. James v. State, 102

S.W.3d 162, 176–79 (Tex. App.—Fort Worth 2003, pet. ref’d) (concluding that

there was harm under rule 44.2(b) when the trial court excluded a statement

made by the driver of a car who said the defendant, a passenger, did not know

      8
      We note that none of the State’s witnesses testified that appellant used
hydrocodone.

                                         11
anything about the drugs that the police found). We overrule appellant’s first

issue.

                         Discovery of Lund’s Fingerprints

         In her second issue, appellant contends that the trial court erred by

refusing to require Lund (appellant’s mother) to give fingerprints that appellant’s

expert could compare with those that he found on the prescription. Before the

trial began, appellant filed a motion to compel Lund to submit to a deposition for

the purpose of giving her fingerprints. The motion, which relied mainly on articles

39.02 and 39.04 of the code of criminal procedure, said that Lund had refused to

give fingerprints voluntarily and explained that one of appellant’s defensive

theories was that Lund tendered the fraudulent prescription.9 See Tex. Code

Crim. Proc. Ann. art. 39.02 (Vernon Supp. 2010), art. 39.04 (Vernon 2005).

Appellant attached affidavits from her counsel and other documents to the

motion, which the trial court denied after holding a hearing.

         A defendant does not have a general constitutional right to discovery in a

criminal case. See In re State, 162 S.W.3d 672, 676 (Tex. App.—El Paso 2005,

no pet.) (citing Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App.

1993)); Page v. State, 7 S.W.3d 202, 206 (Tex. App.—Fort Worth 1999, pet.

ref’d) (en banc). However, a trial court has wide discretion in granting or denying


         9
        During the punishment portion of the trial, Lund testified that she refused
to provide her fingerprints to appellant’s counsel because her attorney believed
that there was no reason for her to do so.

                                         12
a deposition in a criminal case; we review a trial court’s decision to deny a

deposition for an abuse of that discretion. May v. State, 738 S.W.2d 261, 273

(Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987); Aguilar v. State, 468

S.W.2d 75, 79 (Tex. Crim. App. 1971); Yaw v. State, 632 S.W.2d 768, 769 (Tex.

App.—Fort Worth 1982, pet. ref’d).

      Depositions of witnesses may be taken by either the State or the

defendant for a good reason and upon the trial court’s approval. Tex. Code

Crim. Proc. Ann. art. 39.02; see Yaw, 632 S.W.2d at 769. Such depositions may

be used at trial in limited circumstances. See Tex. Code Crim. Proc. Ann. art.

39.02, arts. 39.12–.13 (Vernon 2005). Civil rules govern depositions taken in

criminal cases when such rules are not in conflict with the code of criminal

procedure. Id. art. 39.04.

      Appellant wanted to take Lund’s deposition under article 39.02 for the sole

purpose of obtaining her fingerprints; appellant did not express any desire to take

Lund’s testimony. To justify obtaining Lund’s fingerprints through a deposition,

appellant relies on rule of civil procedure 199.2(b)(5), which states that a notice

of an intent to take an oral deposition ―may include a request that the witness

produce at the deposition documents or tangible things within the scope of

discovery and within the witness’s possession, custody, or control.‖10 Tex. R.

Civ. P. 199.2(b)(5).


      10
       Rule of civil procedure 192.3(b) defines ―documents and tangible things‖
that may be produced at a deposition to include ―books, accounts, drawings,
                                        13
      However, article 39.14 of the code of criminal procedure, which is titled

―Discovery,‖ limits a defendant to obtaining ―documents, papers, . . . objects or

tangible things not privileged, which constitute or contain evidence material to

any matter involved in the action and which are in the possession, custody or

control of the State or any of its agencies.‖ Tex. Code Crim. Proc. Ann. art.

39.14 (Vernon Supp. 2010) (emphasis added). Courts have interpreted article

39.14 constrictively; they have held that the article limits the methods of

discovery that may be used to compel nonparties to give information.

For example, in State ex rel. Wade v. Stephens, the Dallas Court of Appeals held

that article 39.14’s limitation to the possession of the discoverable item by the

State negated a trial court’s authority to require the victim in an aggravated

sexual assault case to submit to a physical examination. 724 S.W.2d 141, 144–

45 (Tex. App.—Dallas 1987, no writ) (expressing that article 39.14 is ―a

comprehensive pretrial discovery statute, and . . . criminal discovery orders must

fall within the confines of that article’s limited authorization‖). Similarly, relying in

part on Stephens, the Houston (Fourteenth District) Court of Appeals held that a

trial court exceeded its authority under article 39.14 when it required two child

witnesses to undergo psychological examinations. In re State ex rel. Robinson,



graphs, charts, photographs, electronic or videotape recordings, data, and data
compilations.‖ Tex. R. Civ. P. 192.3(b). The rule does not specifically allow or
prohibit other physical evidence, such as fingerprints or DNA, to be ―produced‖ at
a deposition. Id. We do not express any opinion about whether fingerprints may
generally be required to be produced at a civil deposition.

                                           14
116 S.W.3d 115, 116–19 (Tex. App.—Houston [14th Dist.] 2002, no pet.);

see also Smith v. State, No. 05-03-01833-CR, 2005 WL 15210, at *7 (Tex.

App.—Dallas Jan. 4, 2005, pet. ref’d) (not designated for publication) (―An order

requiring the complainant to submit to a psychiatric examination would clearly

exceed the scope of discovery authorized by article 39.14.‖); Mitchell v. State,

11-93-00024-CR, 1994 WL 16189625, at *3–4 (Tex. App.—Eastland Nov. 17,

1994, pet. ref’d) (not designated for publication) (citing Stephens and holding that

because of article 39.14’s limitation, a trial court correctly denied the defendant’s

request for discovery of records from a crime victim crisis center that was not a

state agency).

      We agree with these courts’ interpretation of article 39.14 based on the

explicit language of the statute that limits a defendant’s discovery to evidence ―in

the possession, custody, or control of the State or any of its agencies.‖

See Hirsch v. State, 282 S.W.3d 196, 201 (Tex. App.—Fort Worth 2009, no pet.)

(stating that we must apply a statute’s common meaning). Thus, we hold that to

the extent rule of civil procedure 199.2(b)(5) requires a witness to produce

―documents or tangible things‖ (including, possibly, fingerprints) that are within

the witness’s possession, custody, or control but are not within the State’s

possession, custody, or control, rule 199.2(b)(5) conflicts with the code of

criminal procedure and does not govern criminal depositions. See Tex. Code

Crim. Proc. Ann. art. 39.04. In other words, we conclude that a defendant may

not use a deposition under article 39.02 to circumvent article 39.14’s limitation

                                         15
concerning gathering physical or documentary evidence from a nonparty through

discovery.

      For these reasons, we hold that the trial court did not abuse its discretion

by denying appellant’s motion to subject Lund to a deposition for the purpose of

obtaining her fingerprints. See May, 738 S.W.2d at 273. We overrule appellant’s

second issue.

                     Omissions from the Reporter’s Record

      Finally, in her third issue, appellant contends that the trial court erred

because the court reporter did not record bench conferences during the trial.

Before the trial began, appellant filed a motion asking the trial court to instruct the

court reporter to record ―all conferences that may occur at the Bench during the

course of [the] trial.‖ The clerk’s record does not contain an order resolving that

motion. The reporter’s record omits the contents of several bench conferences

that occurred during the trial.

      The court of criminal appeals has stated in a similar case,

            We need not decide whether [Texas Rule of Appellate
      Procedure 13.1] requires court reporters to record all bench
      conferences whether or not such recording is requested. If the rule
      does so require, it simply places a party in the same position he
      would be in if recording of bench conferences had been requested
      before trial. . . .

            The record does not reflect that appellant made an objection
      to the court reporter’s failure to record the bench conferences nor
      does appellant allege he made such an objection at trial. Therefore,
      appellant has failed to preserve his complaint for appeal.



                                          16
Valle v. State, 109 S.W.3d 500, 508–09 (Tex. Crim. App. 2003); see Velazquez

v. State, 222 S.W.3d 551, 556–57 (Tex. App.—Houston [14th Dist.] 2007, no

pet.).

         Appellant did not object to the court reporter’s failure to record bench

conferences. She contends, however, that she could not have objected to the

lack of recording at trial because the record ―reveals no effort on the part of the

reporter to alert anyone that she intended to cease reporting these conferences.

Likewise, nothing . . . indicates that the reporter stood up and/or left the

courtroom during proceedings.‖       But the Valle opinion does not create an

exception to the preservation requirement when the defendant’s counsel claims

that he or she did not know that bench conferences were not being recorded, and

appellant has not cited any authority supporting such an exception.        To the

contrary, courts have rejected arguments similar to the one made by appellant.

See Peek v. State, No. 06-08-00069-CR, 2008 WL 5090344, at *2 (Tex. App.—

Texarkana Dec. 4, 2008, no pet.) (mem. op., not designated for publication);

Velazquez, 222 S.W.3d at 556 n.4. Therefore, we hold that appellant failed to

preserve her complaint about recording bench conferences, and we overrule her

third issue.     See Tex. R. App. P. 33.1(a); Valle, 109 S.W.3d at 508–09;

Velazquez, 222 S.W.3d at 556–57.




                                        17
                                 Conclusion

      Having overruled each of appellant’s issues, we affirm the trial court’s

judgment.



                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 28, 2010




                                     18
