NO. 07-05-0035-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 13, 2005

______________________________ RANDY M CKENZIE, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 31 ST DISTRIC T COURT O F W HEELER CO UNTY; NO. 3986; HON. STEVEN R. EMMERT, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. Appellant, Randy Mc Kenzie, appeal s from an order r evoking his probation. He had previously

been convic

ted of theft and placed on community supervision. The reafter, the State moved to revoke it due to his ingestion of narcotics, namely cocai ne. The trial court, after hearing, g ranted the motion an d sentenced appellant to prison. In three issues, appellant

argues that 1) the trial court erre d in admitting a drug lab report in v iolation of the Confrontation Clause of the United States Constitution, 2) the tria l court err ed in admitting1 The revocation hearing was originall y convened on Dece m ber 3 rd . The tria l court, however,

conti nued it

unti l December 21 stto affo rd ap pellan t opp ortun ityto revie w the repo rt. This was so because, at the Dece m ber 3 rd pro ce ed ing , ap pe llan t co nte nd ed the rep or t wa s in ad m iss ible hearsay due to the fail ure of the Stat e to provi de him an advance copy . So, the t ri al cour t assur ed that

appel lant

had a c op y of t he document and conti nued the heari ng unti l December 21 stto affo rd him tim e to re view it. 2 a drug lab r

eport in v iolation of

the hearsay rule, and 3) the e vidence is insufficient to support the rev

ocation. We affirm the judgment of the trial court. Issues 1 and 2 - Admission of the Lab Report Appellant

claims that the trial court denied him h is right to confront his accusers when it admitted a l aboratory rep ort fro m the Redwood Tox icology Laboratory

of Santa Rosa, California. The report il lustrated that he tested positi ve for cocai ne. S o too does appellant

argue that t he report was hearsay and i n a d m i s s i b l e o n t h a tg ro u n d a s w e l l

. We overruleeach issue. Regarding the confrontation argument, authority holds that one does not h ave such
a right i n a revoca tion hearing

. Smart v. State, 153 S.W .3d 1 18, 1 20-2 1 (Te x. App.–Beaumont

2004, pet. ref’d). S ince the evi dence in quest ion was offered during such a hearing, we find appellant’s conten tion meritless. As for the hearsay

objection, appel lant’s probat ion officer twice made reference (during the h earing) to appellant having tested positive for drugs without objection. This information obviously was based upon the report at issue. Having failed to continua lly object to the use of the information in the re port or secur e a running o bjection foun d ed upon hear say, appellant waived his claim. Mor eover, the complaints he did utter w hen the reportwa s admitted into ev idence dealt w ith whether the State had sati sfied the prerequis ites to admitting expert tes timony and whether it established the requisite chain of custody. They did not deal with h e arsa y. 1 Because the objection urged belo w differs3

from that made before us, the lat ter was n ot preserved for review. See Guevara v. St ate, 97 S.W.3d 579 , 583 (Tex. Crim. App. 2003) ( holding that the issue iswaived when the grounds for objection asserted on appeal do not comp ort with those raised at trial). Issue 3 - Suf

ficiency of the Evidence In histhi rd i ssue , app ell ant c lai ms th e ev iden ce i s in suffici ent to support th e revocatio n of his community supervis ion. We overrule the is sue. As previous ly mentioned, the State moved to revoke a ppellant’s pr obation because he violated the third condi tion of same. The latte r requir ed that he avoid posses sing or consuming narcotics. Thus, the State w as obligated to prove this a llega tion by a preponderance of the evidence. Cobb v. State, 85 1 S.W.2d 871, 873 (Tex. Crim. App. 1993). In de term inin g if it did, we review the evidence in the lig ht most favorabl e to the trial court’s finding. Lopez v. State, 46 S.W.3d 476, 481-82 (Tex. App.–F ort Worth 2001, pet. ref’d). So too must we concl ude the standard w as satisfied w hen the greater weight of the credible evidence creates a reasonable bel ief that the defendant v iolated a condi tion of his community

supervis ion. Armstrong v. State, 82 S.W .3d 444, 448 (Tex. App.– Austin 2002, pet. ref’d); Allbright v

. State, 13 S. W .3d 8 17, 8 19 (T ex. App.–Fort W orth 2000, pet. ref’d ). The evidence of r

ecord illustr ates t hat appellant had a positive drug test. So too does it show that his probat ion officer had to test him tw ice because he had diluted the first testwith water, in apparent attempt to disguise the presence of the drug. This is more t han ample evid ence for

one to r

easonab ly conclud e that h e impermi ssib ly consumed a narcotic. See Stevens v. S tate, 900 S.W.2d 348, 352 (Tex. App.–Texarkana 1995, pet. ref’d) (finding like evidence suff icient to support revocation).4

Having overrul ed each issue, w e affirm the judgment of the trial cour t.

Brian Quinn Chief Justice Do not publish

.