Theodore JONES, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 58463
Court of Criminal Appeals of Texas, Panel No. 1.
Dec. 23, 1980
Rehearing Denied Feb. 18, 1981.
613 S.W.2d 272
The appellant‘s objection to the charge stated:
“The court‘s charge improperly charges the jury that the geographic area of the community is Potter County, Texas, as that was not the proper geographic area at the time of the alleged commission of the offense, i. e. the court should charge on national, or statewide geographic area.”
On appeal it is argued that the court “improperly stated the applicable geographical area for determining contemporary community standards,” and erred in “limiting the community to that of Potter County.” He concedes that a national community standard is not the measure for obscenity. See, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Likewise, “the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use.” Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). The states are accorded considerable latitude in deciding the geographic scope of the community from which the jury is to apply standards. In Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), it was written, “If a State wished to adopt a slightly different approach to obscenity regulation, it might impose a geographic limit on the determination of community standards by defining the area from which the jury could be selected in an obscenity case, or by legislating with respect to the instructions that must be given to the jurors in such cases.”
What is the appropriate charge on geographic scope of the community in obscenity prosecutions under chapter 43 of the
The State argues that Parrish v. State, Tex.Cr.App., 521 S.W.2d 849, upheld a charge on local community standards. Their reliance is misplaced. That case upheld the charge submitted against an objection seeking a charge on national standards. The charge in that case did not submit a single county standard.
In light of the holding in Berg v. State, supra, and the failure of the legislature to have provided a narrower geographic basis, we hold the proper community scope for determination of the obscenity issue is not limited to one county. It was error to charge on a county-wide standard over the objection made by appellant.
The judgment is reversed and the cause remanded.
William H. Sargeant and Robert K. Eason, Jr., Dallas, for appellant.
Henry W. Wade, Dist. Atty., Stephen J. Wilensky and Reed Prospere, Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for the State.
Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
OPINION
ONION, Presiding Judge.
Initially, on appeal appellant contends the court erred in overruling his timely objection to the admissibility of exhibits and evidence elicited from an expert witness which failed to show that the substance in question had been analyzed by a qualified chemist or technician.
E. H. Foerster, assistant toxicologist with the Dallas County Criminal Investigation Laboratory, testified the substance in question was delivered to him for analysis and that a quantitative analysis showed the substance to be heroin and methaparaline.
On cross-examination, he admitted he had not personally performed the analysis and did not know whether it was performed correctly, but that it was performed under his supervision. On re-direct examination, he related an Angelia Wu performed the analysis, and while she worked under the supervision of other persons, he considered her as under his supervision with substances he received. He stated that he took the results of the gaschoamatography and the mass-spectrometry tests performed by Wu and compared them against reference curves (curves retained on known substances as heroin) and reached his own judgment.
In Roberts v. State, 537 S.W.2d 461 (Tex.Cr.App.1976), this court wrote:
“In Kent v. State, 374 S.W.2d 671 (Tex.Cr.App.), a properly qualified expert testified that other qualified experts under his supervision had performed the relevant tests. This Court held:
‘A chemist under whose supervision laboratory analysis of certain specimens are made, by another chemist in said laboratory, may testify from records of the laboratory as to the results thereof.’
Accord: Alvarez v. State, 508 S.W.2d 100 (Tex.Cr.App.); Norris v. State, 507 S.W.2d 796 (Tex.Cr.App.); Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.). In addition, the custodian of the business records of a laboratory may testify as to test results under circumstances in compliance with
Art. 3737e, V.A.C.S. , and Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.). Norris v. State, supra.”
Thus, it is clear that when the witness has not personally performed the analysis
In the instant case Foerster testified the analysis was performed by an Angelia Wu who worked for him, but also worked under the supervision of other persons. The record does not reflect Wu‘s qualifications. She was not shown to be a chemist, lab technician, or otherwise qualified to perform the analysis or tests described. She may have been the janitoress or a trainee as far as this record is concerned. Foerster testified he personally compared the results of the tests against reference curves, but the correctness of his action depended upon the correctness of the tests performed by Wu. The State did not lay the proper predicate for admission of the exhibits under the first method described above. They were admitted over the repeated objections of the appellant that the proper predicate had not been laid for the admission of the exhibits. We decline to extend the rule that a qualified expert witness may testify from the records as to the results of laboratory tests run under his supervision when the qualifications of the person performing the tests is not shown.
The judgment is reversed and the cause remanded.
W. C. DAVIS, J., concurs in the result.
DOUGLAS, Judge, dissenting.
Appellant objected that the State had failed to lay the proper predicate for the admission of the results of the laboratory tests. This objection is not sufficient. Appellant did not specify why or how the proper predicate had not been laid:
“MR. EASON: (Defense Counsel) Your Honor, at this time we would object to the introduction of State‘s Exhibit No. 1, 2, 3 and 4 for the reasons that it is our position that they were obtained as a result of their legal (sic) search and seizure, and we further object that the testimony of this man should not be admissible but should be stricken from the record because it‘s not the best evidence and the analysis was not performed by him.
The predicate has not been laid to allow him to bring this into evidence and for those reasons we object.
* * *
“MR. EASON: Your Honor, I object to that because he has not laid the proper predicate and anything he says will be hearsay.
“THE COURT: You are reading from the official records, did you check those reports?
“THE WITNESS: Yes, sir.
“THE COURT: Overruled.”
Roberts v. State, 537 S.W.2d 461 (Tex.Cr.App.1976), answers appellant‘s “best evidence” contention.
In Canada v. State, 589 S.W.2d 452 (Tex.Cr.App.1979), this Court wrote:
“... An objection that the proper predicate has not been laid is too general and does not merit consideration. Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1972); Russell v. State, 468 S.W.2d 373 (Tex.Cr.App.1971). See Bennett v. State, 394 S.W.2d 804 (Tex.Cr.App.1965), and 5 Tex. Jur.2d, Section 171.”
See Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978).
No reversible error is shown.
The judgment should be affirmed.