IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS. VS. NOS CR and CR THE STATE OF TEXAS, Appellee.

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS RONALD DEMOND JOHNSON, Appellant VS. NOS CR and CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 363RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS NOS. F W AND F W PRESIDING JUDGE PAT MCDOWELL ************************** APPELLANT S POST-ARGUMENT SUPPLEMENTAL BRIEF ************************** GARY A. UDASHEN Bar Card Number SORRELS, UDASHEN & ANTON 2311 CEDAR SPRINGS ROAD SUITE 250 DALLAS, TEXAS (214) (214) FAX ATTORNEY FOR APPELLANT

2 TABLE OF CONTENTS Page INDEX OF AUTHORITIES... i CONCLUSION... 6 CERTIFICATE OF SERVICE i-

3 INDEX OF AUTHORITIES Cases Page Commonwealth v. Avila, 912 N.E.2d 1014 (Mass. 2009)... 6 Melendez-Diaz v. Massachusetts, 129 S.Ct (2009)... 3, 4, 6 State v. Locklear, 681 S.E.2d 293 (N.C. 2009)... 6 United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010) th United States v. Moon, 512 F.3d 359 (7 Cir. 2008) Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003) Wood v. State, 299 S.W.3d 200 (Tex. App. - Austin 2009, pet. ref d.) ii-

4 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS RONALD DEMOND JOHNSON, Appellant VS. NOS CR and CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 363RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS NOS. F W AND F W PRESIDING JUDGE PAT MCDOWELL ************************** APPELLANT S POST-ARGUMENT SUPPLEMENTAL BRIEF ************************** TO THE HONORABLE JUSTICES OF SAID COURT: NOW COMES Appellant, RONALD DEMOND JOHNSON, and submits this post-argument supplemental brief and would show the following: This post-argument supplemental brief addresses Issue I, which states: I. The trial court erred in overruling Appellant s confrontation objection to testimony from a lab supervisor, rather than the chemist who actually tested the drug evidence. Appellant s Post-Argument Supplemental Brief - Page 1

5 II. This issue is based on the following testimony: VOIR DIRE EXAMINATION BY MR. COX: Q. You do not personally see these tests conducted? A. That s correct. Q. And Ms. Weidemann, is that right, did it? A. Yes. Q. And she s not here. A. That s correct. She s no longer at the institute. Q. Did anybody try to contact her to come down here to testify? A. Not to my knowledge. MR. COX: Judge, I object under Crawford versus Washington, hearsay that the witness that did the analysis wasn t even attempted to be brought down here to court to say what the analysis was. THE COURT: I ll overrule, Mr. Cox, all due respect. That exhibit then is admitted over that observation. May publish. DIRECT EXAMINATION CONTINUED BY MS. SWEET: Q. Ms. Lopez, speaking of State s 51 and 52, which are the lab reports, what were the results of the analysis? A. The content of one clear ziplock bag was used for the analysis. The plant material was identified as marijuana. The gross weight of the marijuana was 10.4 ounces. The content of five plastic bags was used for analysis. The hard offwhite material contained cocaine. The amount of cocaine found was 85 grams, which was 84 percent of the total weight. The total weight of the material including adulterants or dilutants was 101 grams. Exhibit 1B, the content of two plastic bags was used for analysis. The chunky white powder contained cocaine. The amount of cocaine found was 44 grams, which was 81 percent of the total weight. The total weight of the powder including adulterants or dilutants was 54 grams. Exhibit 1C, the content of one plastic bag was used for analysis. The seven blue tablets contained 3,4 methylenedioxymethamphetamine and caffeine. The amount of 3,4 methylenedioxymethamphetamine found was 0.30 grams, which was 15 percent of the total weight. The total weight of the tablets, including adulterants and dilutants, was 2.0 grams. Q. As far as the cocaine, can you tell the purity level of the cocaine? A. Yes. It was 84 percent for exhibit 1A. Q. Can you tell the jury briefly what s an adulterant or dilutant? A. An adulterant or dilutant is any material that increases the bulk Appellant s Post-Argument Supplemental Brief - Page 2

6 or quantity of a controlled substance. Q. So in your opinion, is State s Exhibit No. 49 and 50 with the cocaine, is it in an amount including adulterants and dilutants of 4 grams or more but less than 200? A. Yes, it is. Q. And in your expert opinion on the marijuana, is it in an amount of 5 pounds or less but more than 4 ounces? A. Yes, that s correct. Q. Once the testing is complete, what happens to the substances? A. All of the substances are placed back into the original evidence bag. They are then returned to the submitting agency. Q. Ms. Lopez, I had you previously look at State s Exhibit No. 49 and State s Exhibit No. 50. Do they appear to be resealed and in the same condition as when they left your lab? A. They are in the same condition as when they left our laboratory. And I can tell this by the analyst s initials down at the bottom of the heat seal on both evidence bags. MS. SWEET: Your Honor, at this time we would like to offer State s 49 and State s 50 for all purposes. THE COURT: All right. MR. COX: Again, Judge we renew our previous objections to this. THE COURT: All right. I have those in mind. Overrule those objections. MR. COX: And any hearsay on the bags. THE COURT: Well, I -- let me see what the hearsay might be. (Side bar.) THE COURT: I ll overrule that last objection and admit those two exhibits. May publish. (RR4:134-38). Appellant argued in Issue I that the trial court erred in admitting this evidence under the recent Supreme Court case of Melendez-Diaz v. Massachusetts, 129 S.Ct (2009). In response, the State makes several arguments, contending that the objection was not preserved, and that any error is harmless. First, as the record shows, Appellant clearly objected when the State offered the lab reports and the testimony as to results of the lab testing. In the State s brief, and at oral argument, the State attempts to draw an illusory distinction between the lab reports and the testimony as to what the lab reports state. In fact, there is no difference. The testimony Appellant s Post-Argument Supplemental Brief - Page 3

7 concerning the reports and the reports themselves are the same thing. The fallacy of the State s argument is shown in Melendez-Diaz, when the court stated that lab reports are testimonial : whether or not the drug lab report qualify as business or official records, the analysts statements here prepared specifically for use at petitioner s trial were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment. 129 S.Ct. at In his dissent, Justice Kennedy observed, [u]ntil today, scientific analysis could be introduced into evidence without testimony from the analyst who produced it. This case can also be compared to United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010). In this case, the prosecution introduced a certificate asserting that the defendant had never received written permission to enter the United States. Instead of putting the person who authored the certificate on the stand, the prosecution presented live testimony from a different records analyst who had reviewed the file and who explained on the stand how this type of record is ordinarily prepared. Id. at *4. The Fifth Circuit held that such surrogate testimony violated the Confrontation Clause, reasoning that the defendant was unable to cross-examine the person who had prepared a testimonial statement to be used against him at trial. Id. These cases demonstrate that there is no difference between presenting a document into evidence and having a witness testify as to what a document says and the State s argument should be rejected. Secondly, the State contends that Appellant was required to object to each question asked of the witness concerning the document in order to preserve error. However, the Appellant s Post-Argument Supplemental Brief - Page 4

8 record shows an objection when the document and the results of the test were offered and a renewed objection when additional lab documents were offered. There were no other questions asked that called for an additional objection and the State does not cite to any that they claim do so. Additionally, the State argues that the lab supervisor could testify as an expert witness 1 and rely upon the lab testing as data underlying the opinion. Rule 705(d) permits an expert to disclose inadmissible facts or data underlying his opinion, but only if their value as explanation and support for the opinion is not outweighed by the danger that the facts and data will be used for a different, impermissible purpose. One of the greatest dangers in allowing otherwise inadmissible evidence under Rule 705 is that the jury will consider the facts and data as substantive evidence rather than as merely constituting the underlying basis for the expert s opinion. Valle v. State, 109 S.W.3d 500, (Tex. Crim. App. 2003). A distinct example is Wood v. State, 299 S.W.3d 200 (Tex. App. - Austin 2009, pet. ref d.). In Woods, an expert did not merely offer his expert opinion. Rather he disclosed to the jury the testimonial statements in the autopsy report. The Court held [u]nder the circumstances of this case, the disclosure of the out-of-court testimonial statements underlying the expert s opinions, even if only for the ostensible purpose of explaining and supporting those opinions, constituted the use of testimonial statements to prove the truth of the matters stated in violation of the Confrontation clause. Id. at 213. [T]he jury could not consider the testimonial statements in the autopsy report as supporting or explaining [the expert s opinions] without assuming the statements were true. Id. at As Appellant noted in previous briefing, a rule of evidence cannot override a constitutional right. Appellant s Post-Argument Supplemental Brief - Page 5

9 Similarly, in Commonwealth v. Avila, 912 N.E.2d 1014 (Mass. 2009), the Court stated that a testifying analysts who recites another s findings and conclusions on direct examination is plainly... asserting the truth of the nontestifying analyst s findings in a manner that triggers the defendant s constitutional right to confrontation. The Court held that Melendez Diaz and Crawford require a testifying expert s witness s testimony [to be] confined to his or her own opinions. Avila, 912 N.E. at 1029; see also State v. Locklear, th 681 S.E.2d 293, (N.C. 2009); United States v. Moon, 512 F.3d 359, 362 (7 Cir. 2008). Based on this case law, the lab supervisor s testimony as to what another chemist determined through lab testing was not admissible as expert testimony. Moreover, this evidence was not offered under this theory at trial and Appellant had no opportunity to object to it on that basis. CONCLUSION Based on the reasons stated herein, as well as the Appellant s previous briefing on this question, this case should be reversed. Appellant s Post-Argument Supplemental Brief - Page 6

10 Respectfully submitted, GARY A. UDASHEN Bar Card No SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas (214) (214) fax Attorney for Appellant CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant s Post-Argument Supplemental Brief was mailed to Johanna Kubalak, Assistant District Attorney, Appellate Section, Frank Crowley Courts Building, 133 N. Industrial Blvd., L.B. 19, Dallas, Texas 75207, on this the 19th day of November, GARY A. UDASHEN Appellant s Post-Argument Supplemental Brief - Page 7