Benjamin Robert CAIN, III, Appellant v. The STATE of Texas, Appellee
No. 06-15-00222-CR
Court of Appeals of Texas, Texarkana.
Date Submitted: July 22, 2016; Date Decided: August 18, 2016
498 S.W.3d 172
We agree with Sanchez. On request of the losing party in a motion to suppress, the trial court must “state its essential findings,” meaning “that the trial court must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court‘s application of the law to the facts.” State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006). Our review in this case is limited to whether the trial court‘s ruling granting the motion to suppress the cocaine found in Sanchez‘s vehicle was correct; Sanchez may not challenge the denial of his motion to suppress the cocaine found on his person until a direct appeal if he is convicted. See McKown v. State, 915 S.W.2d 160, 161 (Tex.App.-Fort Worth 1996, no pet.) (per curiam); see also Davis v. State, No. 14-14-00456-CR, 2014 WL 4088549, at *1 (Tex.App.-Houston [14th Dist.] Aug. 19, 2014, no pet.) (mem. op., not designated for publication). The trial court‘s findings and conclusions were adequate for the purpose of evaluating the court‘s ruling. We deny the State‘s request to abate and overrule its second issue.
III. CONCLUSION
We affirm the trial court‘s order.
Laura M. Carpenter, Assistant District Attorney, Marshall, TX, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
Opinion by Chief Justice Morriss
A video recording taken with a small camera hidden on the person of confidential informant Dennis Boyd showed Boyd interacting with Sergeant Steve Ashmore of the Harrison County Sheriff‘s Office, then getting in a vehicle, driving to a nearby Harrison County residence, interacting inside that residence with Benjamin Robert Cain, III, purchasing $100.00 of a substance in a plastic bag from Cain, returning to the vehicle, driving back to the original location, and delivering to Ashmore a similar plastic bag containing a similar substance. Though Boyd died before Cain‘s jury trial1 on the charge of delivery of less than twenty-eight grams of a Penalty Group 3 controlled substance,2 dihydrocodeine, Ashmore testified to verify the video and to supply additional facts. On appeal, Cain asserts that the video was
(1) The Video Was Adequately Authenticated
Cain argues that the video of Boyd‘s drug buy was not properly authenticated and therefore
“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
Almost all of Cain‘s briefing seeks to distinguish Watson v. State, 421 S.W.3d 186 (Tex.App.-San Antonio 2013, pet. ref‘d), on which the State relied at trial and relies in this appeal. Watson involved a situation similar to the one at hand, illegal drugs being purchased in cooperation with law enforcement by a confidential informant who became unavailable at trial. The Watson court addressed the Confrontation Clause and found no violation where a police officer sponsored the video of the drug buy and offered testimony about the events depicted in the recording. Watson, 421 S.W.3d at 196. The video evidence at hand was also sponsored by the officer who handled the informant‘s purchase of the drugs. The only significant fact present in Watson not present here is that, in Watson, law enforcement officers subsequently executed a search warrant and thus were able to testify that the interior of the residence shown on the video matched the interior of the residence they themselves observed when executing the search warrant.
Ashmore testified that, as a narcotics investigator, he commonly used confidential informants to buy illegal drugs and thereby built prosecutions against the sellers of such contraband. In December 2012, he recruited Boyd to purchase hydrocodone from Cain. Boyd had worked as a confidential informant for Ashmore many times over a period of years, and Ashmore had found Boyd to be reliable. Boyd was paid $100.00 for the purchase at issue in this case. Boyd died about a year and a half before Cain‘s trial, and Boyd‘s unavailability to authenticate the video he recorded when buying the hydrocodone from Cain is key to this appeal.
Sergeant Ashmore testified that he had watched the video, that it was the same one3 recorded on the camera worn by Boyd, that the video had not been “materially altered or changed in any way,” that it was fair and accurate, that Ashmore was qualified to operate the recording system, and that the system was working properly on the date of the drug transaction between Boyd and Cain. Additionally, as can be seen from the video itself, the system recorded events continuously, from the time Ashmore narrated its beginning
(2) The Chain of Custody of the Drugs Was Adequately Shown
The bulk of Cain‘s briefing challenges the chain of custody of the contraband. Since Cain raised this issue at the suppression hearing, we will address it.
We agree with the Watson court‘s approach to the chain of custody argument. As the officer in Watson had done, the officer here searched the person and vehicle of the confidential informant before sending him to Cain‘s home to buy drugs. Ashmore testified that no controlled substances were found in this search. The video of Boyd in Cain‘s home shows Cain putting something in a plastic bag, and Boyd handed Ashmore a plastic bag upon his return. Ashmore testified that the bag contained pills, which were submitted to the Texas Department of Public Safety (DPS) laboratory in Tyler. That laboratory reported that the pills weighed 19.83 grams and contained dihydrocodeineone5 in a mixture qualifying as a Penalty Group 3 controlled substance. See
Ashmore testified to his own subsequent acts, delivering the bag of pills to the laboratory. A unique identification number was used by the laboratory, and the sealed package was brought to trial by the forensic chemist. That witness broke the seal and opened the package, reportedly the first time it had been opened after the chemical testing. “The authentication requirement for admissibility is met once the State has shown the beginning and the end of the chain of custody, particularly when the chain ends at a laboratory.” Martinez v. State, 186 S.W.3d 59, 62 (Tex.App.-Houston [1st Dist.] 2005, pet. ref‘d). As mentioned above, there is no suggestion or evidence here of fraud or tampering. See Druery v. State, 225 S.W.3d 491, 503 (Tex.Crim.App.2007) (“Absent evidence of tampering or other fraud problems in the chain of custody do not affect the admissibility of the evidence.“). The chain of custody was sufficiently proven.
(3) A Violation of the Confrontation Clause Was Not Adequately Briefed
Only in the heading to Cain‘s first point of error is there any mention of the
(4) Sufficient Evidence Supports Cain‘s Conviction
Cain also asserts that, because Boyd was not present to testify, Ashmore could not adequately testify to actual delivery of the alleged contraband to Boyd. He posits that, therefore, the evidence was not sufficient to prove delivery of a controlled substance. We believe, however, that the evidence referenced in this opinion sufficiently supports the conviction.
Ashmore had worked many times with Boyd on successful controlled drug buys. Ashmore outfitted Boyd with a small video camera; he searched Boyd and his vehicle before the purchase from Cain and found no illegal drugs. He followed Boyd to Cain‘s house and saw Boyd go in the house. A short while later he saw Boyd emerge from the house, followed Boyd, and met him at the earlier location. At the latter meeting, Boyd produced a bag of pills which proved to be dihydrocodeineone. Ashmore sent the pills to a state laboratory where their chemical composition was established. On the evidence presented at trial, a rational jury could have found all the elements of the charged offense beyond a reasonable doubt. The evidence was sufficient to support the jury‘s verdict.
We affirm the trial court‘s judgment.