*1 says person convicted is entitled to Terry Wayne ZONE, Appellant,
counsel and that the appoint court shall counsel; it judge’s leaves no room for a discretion. See id. recently Our Court The STATE of Texas. writ issued a of mandamus in a case with virtually the same surrounding facts rela No. 1553-02. Neveu, tor’s case here. See Criminal Texas. (relator sought writ of mandamus or dering respondent judge appoint an at Oct. 2003. torney for relator’s for motion DNA test ing under Tex.Crim. Pro.Code. Ann. Art.
64.01(c)). All requirements mandamus
relief have been fulfilled.
Conclusion
Because relator met for ap-
pointment of counsel and because all re-
quirements for mandamus relief have been
fulfilled, we grant conditionally relator’s
petition for writ of mandamus and direct (1)
respondent August 12, to: vacate his denying
2002 order relator’s motion for (2)
post-conviction testing, DNA appoint represent Chapter
counsel to relator (3) proceeding, reconsider relator’s post-conviction
motion DNA af- appointed.2
ter has counsel been amending person 2. note that House Bill indigent.” court determines that the Chapter added). September (emphasis became effective on Had relator’s motion (Tex. 1, 2003, Leg., Reg. subsequent September HB 78th Sess. filed been 64.01(c) changes disposition The Bill might Article case been read, However, part, in relevant "The con follows: different. HB 1011 mandates victing appoint court shall counsel for the motion submitted before HB became person person governed informs effective is law in effect when made, person court wishes to submit mo the motion was and we therefore make chapter, tion ruling under this prior reason our based on the law in effect finds grounds filed, able a motion be HB 1011.
777 brief, the in his Houston, As concedes appel- appellant Cunningham, David tested confirmed chemist State’s lant. of the in at five least presence DA, Houston, Mat- Assist. Curry, Alan explained that chemist further rocks. The Austin, Paul, Attorney, thew State’s “they’re sampling is used state. all the consisten- same the same color Melton, this reaffirmed cy.” As Court OPINION by substances manner of “The only to the sampling goes random J., HERVEY, opinion delivered the substances jury may give to the tested unanimous Court. determining the untested substance at Id. appellant possession the tested substance.” juryA the same as Gabriel, at 5, four 900 S.W.2d at-(quoting of more than one but less than 722). appellant argued, that the total appeal, The chemist testified of cocaine. On among things, other that the evidence was was 1.3 Based weight of the rocks Melton, considering support insufficient to his convic- legally our decision in chemist did not tion because State’s in this we find the evidence re- correctly all twelve rocks of crack cocaine held that appeals test mouth, from his but instead tested legally covered sufficient evidence was sample ground a random of five of the twelve Appellant’s conviction. appellant’s rejected appeals The this rocks. court of for review is overruled. plurality argument, relying on Court’s judgment is af- appeals’ court of State,
opinion in Gabriel v.
relied on J., PRICE, joined. ap- conflicts court of decision with another in which State, peals’ opinion, Melton v. 85 S.W.3d MEYERS, J., concurring filed a 2002, (Tex.App.-Austin pet. granted). 442 PRICE, joined by J. recently overruled the court of We me, of the State, peals’ To a random in Melton v. No. decision 339, is sufficient show of crack cocaine 120 S.W.3d 2003 WL rocks from 22346574, entire recovered LEXIS substance Tex.Crim.App. 2003 596 2003). add- mouth was crack cocaine appellant’s held (Tex.Crim.App. Oct. alleged weight. minimum ing up to the State not have there that the does State, 2003 cocaine, v. every of crack rath- See Melton each and rock Oct.15, (Tex.Crim.App. 22346574 er, only that the prove State has to WL “[t]he separately I feel because write weight of the controlled sub- aggregate wrong point mixture, brought the and that the including adulterants stance examining the suffi- dilutants, minimum of error. Instead alleged equals evidence, I consider would Melton, ciency of the 120 344. We weight.” S.W.3d Daubert admissibility issue under that, this an recognized although Gabriel was also Pharmaceuticals, Inc., 509 Dow look to v. Merrell plurality opinion, we could still 469 125 L.Ed.2d 113 S.Ct. persuasive for its value. U.S. at trial Although (citing Hardy, State S.W.2d the cocaine objected the admission of (Tex.Crim.App.1997)). illegal fruit of an appeal search and on They’re very fragile argued that legally the evidence was insuf- they very easily go break so we ficient to show that he more weight. cocaine,
than
gram
I would frame
*3
question
this issue as
reliability
of
of
the
[Appellant]: Okay.
asSo
far as a deter-
the expert’s methodology. Under Dau-
everything
pack-
mination that
in that
bert,
expert’s
if an
not
is
methodo-
age
cocaine and weighs more than
reliable,
logically
then the
is inad-
gram,
your
that’s not based on
Id. missible.
of cocaine Redirect: expert were tested and the did weigh not alone, the five tested rocks Sir, you proce- all [State]: did follow pellant argues that the weight according depart- dures to the HPD may cocaine have been less gram, than one regulations mental and state in law him making eligible punish- lesser terms of testing? range. ment Testimony trial focused on [Expert]: IYes. all followed of the stan- the expert’s method of testing evi- procedures dard sampling and Appellant dence. attempted point out testing. flaws in expert’s methodology testimony, appears From this it reliability of testing then appellant was attempting discredit extrapolating to the whole. expert’s testimony appellant pos- Direct Examination: attacking sessed 1.3 Now, [State]: you do determine the his method of the evidence. weight you or first do determine the State, however, testimony elicited nature of the substance first? expert scientifically accepted used a meth- [Expert]: Generally, we weigh will it of testing. od It was within the trial
first. judge’s discretion to admit the evidence for in jury weigh determining whether Okay. [State]: This substance in ques- requisite amount tion in this weighs Exhibit of cocaine. how much?
[Expert]: Approximately 1.3 Admissibility legal of evidence and the
sufficiency of in- the evidence are often terrelated, judge with the trial first deter- Cross-Examination: mining whether to admit evidence [Appellant]: Okay. you And so didn’t determining jury then the what here, all in those rocks correct? give real the evidence. The difference oc- they’re Not if all the same Here, likely curs appellate review. it is color consistency. the same legal insufficiency argued We take a sampling. order abuse to avoid the deferential [Appellant]: Okay. you So do know how admissibility discretion review used for
much each one of those weighs? Legal sufficiency rocks evidence. of the evi- however, See dence, is reviewed de novo. Brown, Procedural Issues
Judge Harvey Daubert, L.Rev. 36 Hous.
Under
1153-1158 expert testimo- agree
Because I case was both admissible
ny conviction,
legally sufficient opinion. majority’s join *4 ARCHER, M.D., Appellant,
Emily Husband,
Anita Karen WARREN
Bobby Warren, Appellees. Gene
No. 07-01-00027-CV. Texas,
Amarillo.
July