NOS. 07-11-00203-CR; 07-11-00204-CR; 07-11-00205-CR; 07-11-00206-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A APRIL 23, 2012

MICHAEL PARR, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2010-426,416, 2010-426,625, 2010-427,348, 2010-427,350; HONORABLE JOHN J. "TR EY" MCCLENDON, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Michael Parr, entered pleas of guilty to four felony offenses without benefit of a plea bargain. In No. 07-11-0203-CR, appellant pleaded guilty to possession with intent to deliver cocai ne, in an amount of more than four grams but less than 200 grams, within 1,000 feet of a school. 1 In No. 07-11-0204-CR, appe llant pleaded guilty to possession with intent to deliver cocaine, in an amount of more than one gram but less

1 See T EX

. H EALTH & S AFETY C ODE A NN . §§ 481.112(d), 481.134(a )(5), (b)(1), (c) (West 2011).2 than four grams, within 1,000 feet of a school. 2 In No. 07-11-0205-CR, appellant pleaded guilty to possession with in tent to deliver cocaine, in an amount of more than one gram but less than four grams, within 1,000 feet of a school. 3 In No. 07-11-0206- CR, appellant pleaded guilty to possession with in tent to deliver cocaine, in an amount of more than one gram but less than four grams, within 1,000 feet of a school. 4 Further, appellant pleaded true to the en hancement paragraph alleging a prior felony conviction in No. 07-11-0203-CR, No. 07-11-0205-CR, a nd No. 07-11-0206-CR. 5 In No. 07-11-0204-CR, appellant pleaded true to two enhancem ent paragraphs alleging prior convictions of felony offenses. 6 After hearing the evidence regarding punishment, the trial court assessed appellant’s punishment for each of the four convictions at confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 55 years, with all periods of confinement to r un concurrently. Appellant has appealed the judgments of the trial court. We affirm. Factual and Procedural Background Between January 4 and January 29, 20 10, appellant engaged in deliveries of cocaine to undercover narcotics officers of the Lubbock Police Department (LPD). This series of transactions culm inated with a “buy-bust” on January 29, 2010, when appellant sold a larger amount of cocai ne to one of the undercover office rs. As a result of these

2 See id . §§ 481.112(c), 481.134(a)(5 ), (b)(1), (c). 3 Id

. 4 Id

. 5 See T EX

. P ENAL C ODE A NN . § 12.42(c)(1) (West 2011). 6 Id . § 12.42(d).3 transactions, appellant was indicted in the f our separate cases he pleaded guilty to which alleged various violations of the Texas Health & Safety Code. Appellant’s case in No. 07-11-0203-CR was scheduled for tr ial on February 14, 2011. During a hearing on pre-trial matters hel d on the day the jury panel was to report, appellant’s appointed trial counsel presented a motion to be allowed to withdraw and a motion for continuance. The record reflects that this case had been originally scheduled for trial on the 15 th and 29 th of November 2010; however, the case was not tried for reasons not apparent in the record. The tr ial court denied tria l counsel’s request to withdraw. In support of the motion for continuance presented just before the trial was to begin, appellant advised the trial court that he had suffered a fall in the jail and that, as a result, he was in considerable pain while sitting in the courtroom. Th e trial court stated on the record that he did not doubt appella nt was in some disco mfort; however, the court observed that appellant was able to communicate with the court without any difficulty. Further, appellant voiced that he was dissatisfied with his appointed counsel. The trial court discussed this issue with appel lant and pointed out that appellant had waited until the day of trial to voice any objecti on to trial counsel. Subsequently, the trial court denied appellant’s motion for continuance. After a short recess, appellant and his trial lawyer informed the judge that appellant desired to ent er a plea of guilty without the benefit of any plea bargain. Thereafter, the trial court adm onished appellant regar ding the entry of a plea of guilty. After being orally admonished by the trial court and receiving the written4 admonishments, which the tria l court went over with appell ant, appellant entered a plea of guilty in each of the cases before this Court. Appellant also entered pleas of true to the enhancement portions of the indictments. The trial court found appellant guilty of the charges and found the en hancement portions of the in dictments true, but then recessed the hearing until a later date when punishment evidence would be considered.

The trial court heard evidence r egarding punishment on April 4, 6 and 7, 2011. During the punishment hearing, the undercove r officers; representatives of the Department of Public Safety (DPS) laborat ory; and other member s of the LPD, who were involved in the arrest of appellant, te stified. After hearing this evidence and the testimony presented by appellan t, the trial court assessed ap pellant’s punishment at confinement in the ID-TDCJ for a term of 55 years on each case. All terms of confinement were ordered to run concurrently. Appellant gave notice of appeal, and presents three issues for the Court’s consideration. The first two issues apply to all of the cases presented for review. By these issues, appellant contends that the tria l court abused its discretion by denying his motion for continuance, and in admitting the c ontrolled substances into evidence. By his third issue, which applies to No. 07-11 -0204-CR only, appellant contends that the trial court abused its discretio n in admitting a motor vehicl e recording (MVR) of the arrest into evidence. Disagr eeing with appe llant’s contentions, we affirm the judgments of the trial court.5 Continuance We review the trial court’s ruling on a motion for continuance under an abuse of discretion standard. See Gallo v. State , 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). In order to establish an abuse of discretion, appellant must s how that he was actually prejudiced by the denial of the motion for continuance. See id

. Appellant sought the continuance for two reasons. First, appellant asserted that he was suffering the effects of a fall in the jail and, as a result, was in considerable pain. Second, appellant asserted that he needed a continuance to acquire new counsel because his appointed counsel did not hav e his best interest at heart. Reviewing the record concerning the first reason given for the motion for continuance, we find that the trial court was able to observe appellant prior to ruling on the motion, and stated on the record that appellant did not appear to be having any difficulty in communicating with the court. Additionally, after appellant had entered his plea of guilty and the State had rested its case on punis hment, appellant called Brooks Russell as a witness. Russell was the jail er on duty at the Lubbock County Detention Center who observed appellant s lip and fall in a water spill inside his confinement pod. Russell testified that, when the fall occurred, he went to appellant and asked him to stay on the floor until medical assi stance could be obtained. Appe llant refused to stay down and insisted upon getting up. Russell sent appel lant to the infirmary where he was given a medical clear ance. Additionally, the record c ontains nothing that could be considered proof that appellant ’s medical condition in any way prejudiced his ability to converse with his attorney or otherwise a ssist in his own defens e. Essentially,6 appellant’s brief simply asserts that his medical condition impacted his ability to concentrate on the matters before the trial cour t. Simple assertions of harm or prejudice are not sufficient to show the trial court abused its discretion in overruling a motion for continuance. See Gonzales v. State , 304 S.W.3d 838, 843 (Tex.Crim.App. 2010). Appellant also moved for a continuance based upon his perception that his trial counsel did not represent his best interest. Here, again, all we have before the Court are appellant’s bare assertions. The record contains nothing that could be construed as evidence that appellant was harmed or prejudi ced by the trial court’s denial of the motion for continuance on this basis. In fact, the record contains more than one statement from appellant that he was satisfied with his tr ial counsel’s representation of him. Under this state of the record, the trial court’s deni al of the motion for continuance based upon appellant’s perceived unhappiness with trial counsel was not an abuse of discretion. See Gallo , 239 S.W.3d at 764. Accordingly, appellant’s first issue is overruled. Evidentiary Issues Through his last two issues , appellant contends that the trial court abused its discretion by admitting into evidence the co caine and an MVR of his arrest. The first contention applies to all of t he cases. The second contention applies only to No. 07-11- 0204-CR.

As these issues relate to the trial court = s admission of evidence, we review the decisions under the abuse of discretion standard. See Billodeau v. State , 277 S.W.3d 34, 39 (Tex.Crim.App. 2009). The test for abus e of discretion is w hether the trial court7 acted without reference to any guiding ru les and principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex.Crim.Ap p. 1990). A reviewing court applying the abuse of discretion standard should not reverse a trial judge = s decision whose ruling was within the zone of reasonable di sagreement. Green v. State , 934 S.W.2d 92, 102 (Tex.Crim.App. 1996).

Admission of Cocaine During the punishment hearing, numerous ex hibits were offered into evidence. These exhibits consisted of the cocaine purchased by undercover police officers from appellant, and cocaine seized from appellant’s person when he was arrested. As each exhibit was offered, the State established a chain of custody t hat went from the officer, who either “bought” the cocaine from appellant or seized the cocaine from appellant, to the LPD property room. From the LPD property room, the chai n went to the officer who transported the evidence to the DPS regional lab. The lab identified each exhibit by a lab number. After analysis, the items were again pick ed up by an LPD officer and returned to the property room, where the item s remained until trial. When questioning the various officers, the State asked if the b ag or baggie that the item of evidence was deposited in appeared to have been tampered with or appeared the same as the last time the officer saw the exhibit. Some office rs gave an explicit stat ement that it had not been tampered with, while others said it ap peared to be the same. Seizing upon this type of language, appellant now contends that the chain of custody was not adequately proven to admit the evidence. Additionally, appellant assert s that the use of the LPD case number to identify the exhibits did not prove the chain of custody because the8 case numbers were not included in the in dictments that resu lted in appellant’s convictions. However, we disagree with appellant’s contentions.

The record establishes which officer se ized the evidence, and that each officer was able to identify the evidence by use of the LPD case number, which corresponded with the LPD case number pl aced on the seized item. Furt her, the evidence showed who retrieved the evidence from the property room and took it to the laboratory for examination. Thereafter, t he record reflects which case number corresponded to which laboratory number, and the results of the examination. This type of testimony is clearly sufficient to identify the exhibits for admi ssion under a proper chain of custody. See Stoker v. State , 788 S.W.2d 1, 10 (Tex.Crim.App. 1989) . In the absence of evidence of tampering, once the exhibits have been properly identified, questions that go to the subsequent care and custody of the evidence go to the weight, and not the admissibility, of the evidence. See Lagrone v. State , 942 S.W.2d 602, 617 (Tex .Crim.App. 1997). There is nothing in this record to s upport any insinuation that the evidence has been tampered with. See id . Accordingly, the trial cour t did not abuse its discretion in admitting the exhibits. See Billodeau , 277 S.W.3d at 39. Appellant’s issue is overruled.

Admission of MVR Finally, appellant compla ins about the admission of the MVR of appellant’s arrest. Appellant contends that there is not hing in the record to support the officer’s training in operating the MVR. Additionally, appellant contends that there is nothing in the record to support the officer’s testimon y that the CD copy of the MVR, which was9 produced at trial, was pr oduced by a device capable of producing an accurate reproduction of the original MVR. To support these allegations , appellant has cited the C ourt to Edwards v. State , 551 S.W.2d 731, 733 (Tex.Crim.App. 1977). The problem with appellant’s analysis under the seven part Edwards test is that the test pr edates the adoption of the Texas Rules of Evidence. 7 Subsequently, the Texas Court of Criminal Appeals ruled that any thought that the Edwards test was maintained after the adoption of the Rules was erroneous. See Angleton v. State , 971 S.W.2d 65, 68-69 (Tex.C rim.App. 1998) (holding that the Court’s opinion in Kephart v. State , 875 S.W.2d 319 (Tex.Crim.App. 1994), that the Rules maintained the pre-rules aut hentication requirements was erroneous and overruled). Rather, the requi rements for admission of the CD of the MVR are: 1) the copy accurately depicts the contents of the or iginal recording, 2) the voices on the recording are identifiable, and 3) the depiction of the conv ersation on the recording is accurate. See id . at 67. In the present case, during direct examinat ion, the officer testif ied as to each of the requisite requirements for admission of t he CD. As such, the trial court did not abuse its discretion in admi tting the exhibit. Billodeau , 277 S.W.3d at 39. However, appellant has another objection to the introduction of the exhibit. This objection was that there were gaps in the s ound portion of the recording.

7 Further reference to the Texas Rules of Evidence will be by reference to “Rules” or ”Rule ___.”10 While being questioned about these gaps, the officer test ified that the older VHS type of MVR’s are, at times, su sceptible to interference from a number of sources. This is what the officer attributed the gaps to. He fully explained that the gaps were present on the original MVR also. The Angleton court was faced with a similar problem. There, the gaps were in an audio tape but the court concluded that, although the tape in question was difficult to underst and and was unintelli gible in some places, nevertheless the recording contained periods of co hesive, coherent co nversation and was admissible. Angleton , 971 S.W.2d at 68. In the CD at issue, the video portion is complete without any gaps. There are signifi cant gaps in the audio portion; however, most of these gaps are while appellant is seat ed in the patrol car. At the end of the day, the objection lodged by appellant at trial went to the weight the court might give the evidence and not to the admissibility of the CD. Accordingly, we find that the trial court did not abuse its discretion in admitting the CD. See Billodeau , 277 S.W.3d at 39. Appellant’s brief also posit s an objection to admission of the CD under the rule of optional completeness. See Rule 107. However, nowhere in appellant’s brief are we cited to the record that would demonstrat e that an objection to admission of the CD was raised under this theory. Accordingly, this issue is not preserved for appeal. See T EX

. R. A PP

. P. 33.1.11 Conclusion Having overruled appellant’s issues, the judgments of the trial court are affirmed.

Mackey K. Hancock Justice

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