Opinion filed July 31, 2014

In The

Eleventh Court of Appeals ____________

No. 11-12-00213-CR

____________

BOBBY DEAN BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause No. 22675

M E M O R A N D U M O P I N I O N

Bobby Dean Brown appeals his conviction for the offense of possession of 

less than one gram of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(b) (West 2010). The jury assessed punishment at confinement for two 

years in a state jail facility and a fine of $10,000. The trial court sentenced him

accordingly. In four points of error, Appellant complains of jury charge error, two 

instances directed at the inadmissibility of expert witness testimony, and the denial 

of his motion for new trial. We affirm.
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On the date of the offense, Appellant was at the home of his friend Rhonda 

McWhorter. McWhorter was on community supervision, and she had missed her 

monthly supervision appointment that day. McWhorter’s supervision officer and 

David Cherry, the director of adult probation in Eastland County, were looking for 

McWhorter. Cherry called Deputy Benjamin Yarbrough with the Eastland County 

Sheriff’s Department, and Deputy Yarbrough called Texas Department of Public 

Safety Trooper Tim Pitts. Deputy Yarbrough and Trooper Pitts went with the 

supervision officers to look for McWhorter. 

When they arrived, Appellant and McWhorter were sitting in Appellant’s 

pickup outside of McWhorter’s home. Appellant and McWhorter got out of

Appellant’s pickup. McWhorter was taken to one of the patrol cars while Trooper 

Pitts began talking to Appellant. Trooper Pitts, Deputy Yarbrough, and Cherry all 

testified that Appellant consented to a search of his pickup. In the subsequent 

search, Trooper Pitts found a glass pipe in the glove compartment, and it had a 

white powdery coating indicating that it had been used to smoke 

methamphetamine. Although the pipe was found in his pickup, Appellant was not 

taken to jail because he had recently been in a motorcycle accident, had open sores

on his body, and also had a staph infection. He was issued a ticket for possession 

of drug paraphernalia. Deputy Yarbrough had the contents of the pipe tested. A 

chemist from the DPS crime laboratory testified that he tested the substance using 

a Gas Chromatograph Mass Spectrometer (GCMS) and that it tested positive for 

the presence of methamphetamine. The jury found Appellant guilty of possession 

of less than one gram of methamphetamine. This appeal followed.

In his first point, Appellant contends that the trial court erred when it refused 

to give an Article 38.23 instruction because there was a fact issue about whether 

Appellant consented to the search of his pickup. See TEX. CODE CRIM. PROC. ANN.

art. 38.23 (West 2005).
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When a fact issue arises at trial regarding how evidence was obtained, 

Article 38.23 requires the trial court to instruct the jury to disregard the evidence if 

the jury believes that the evidence was obtained in violation of the Constitution or 

laws of the United States or of Texas. Id. To be entitled to such an instruction, 

“(1) [t]he evidence heard by the jury must raise an issue of fact; (2) [t]he evidence 

on that fact must be affirmatively contested; and (3) [t]hat contested factual issue 

must be material to the lawfulness of the challenged conduct in obtaining the 

evidence.” Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). “The 

defendant must offer evidence that, if credited, would create a reasonable doubt as 

to a specific factual matter” that is essential to the admissibility of the statement. 

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008) (citing Madden, 

242 S.W.3d at 510). “This factual dispute can be raised only by affirmative 

evidence, not by mere cross-examination questions or argument.” Id. (citing 

Madden, 242 S.W.3d at 513 nn.22–23).

Appellant’s challenge to the evidence as it relates to actual consent is twofold. First, Appellant argues that there is a dispute about whether Appellant 

actually consented to the search because McWhorter testified that she did not 

believe that consent was obtained. Appellant contends that this conflicts with

Trooper Pitts’s testimony that Appellant gave him consent. Similarly, Appellant 

argues that “McWhorter’s testimony on direct and re-direct created a fact issue” 

because “McWhorter admitted to not being present” during the conversations after 

testifying on direct examination that she did not hear Trooper Pitts request consent. 

Appellant cites to Espericueta v. State, 838 S.W.2d 880 (Tex. App.—Corpus 

Christi 1992, no pet.), to support his proposition that a witness who “testifies one 

way on direct and another way on cross” raises a fact issue. In Espericueta, the 

defendant was asked on cross-examination whether he saw a double line when he 

passed a vehicle, to which he said, “I don’t remember seeing the double line.” Id.
4

at 883. On redirect examination, however, the defendant testified that he had not 

committed a violation before the traffic stop. Id. The court concluded that the 

evidence conflicted because the defendant “initially testified that he did not know 

if he violated the law,” but on redirect, “testified that he committed no violations.” 

Id. 

Here, on direct examination, McWhorter testified:

Q Okay. When you were there, did you ever hear Trooper Pitts 

ask for consent to search?

A No, sir.

Q Okay. Now, there was a brief time -- Were you taken away and 

did not hear that entire conversation?

A Yes, sir, but I believe they were already searching as I was 

being taken over to the other vehicle.

Q Okay.

A And I never heard any consent on them, and never asked any --

or heard anyone ask for permission.

Q So, based on your perception, did it appear that they at any time 

requested to search?

A No, sir.

Q Okay. So, to you, it just appeared that they started searching?

A Yes.

On cross-examination, McWhorter testified:

Q So, isn’t it true there was a period of that you couldn’t hear 

what was going on?

A Yes, ma’am, that’s true.
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Q And so, you couldn’t testify -- you can’t tell the jury that you 

heard anything that was going on?

A No.

Q Do you know whether the troopers asked for consent or not?

A I just never heard them ask. I don’t have any idea.

Q So, they very easily could have?

A Yes, ma’am.

On redirect, defense counsel asked McWhorter to explain the circumstances that 

led her to believe that consent was not requested, and she said, “Just that it 

happened so quickly that they started searching the vehicle. It didn’t appear that 

they had enough time to ask for consent, and for consent to be given.”

McWhorter’s testimony was that she did not hear anyone ask for or give consent. 

She did not change her testimony on cross-examination. Thus, there were no 

conflicts in McWhorter’s testimony that created a fact issue about whether 

Appellant consented to the search.

Additionally, there is no conflict between McWhorter’s testimony and that

of Cherry, Trooper Pitts, and Deputy Yarbrough. Cherry, Trooper Pitts, and 

Deputy Yarbrough each testified that Appellant gave consent to Trooper Pitts to 

search the vehicle. McWhorter testified that she did not believe consent was 

granted because the search happened so quickly, that she did not hear Trooper Pitts 

request consent, that she did not hear Appellant give consent, and that she did not 

know whether Trooper Pitts asked for consent but that he could have. No one 

testified that Appellant refused consent, that they heard Appellant refuse consent, 

or that Appellant questioned why the officers were searching his vehicle. 
6

McWhorter’s testimony was not affirmative evidence that created a reasonable 

doubt that Appellant consented to the search. 

Second, Appellant argues in the alternative that, if he consented to the 

search, his consent was not voluntary. Consent must be freely and voluntarily 

given. Johnson v. State, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990). Whether 

consent to search was voluntary or the product of duress or coercion is a question 

of fact to be determined from the totality of the circumstances. Schneckloth v. 

Bustamonte, 412 U.S. 218, 227 (1973); Juarez v. State, 758 S.W.2d 772, 775 (Tex. 

Crim. App. 1988). “[I]t is only by analyzing all the circumstances of an individual 

consent that it can be ascertained whether in fact it was voluntary or coerced.” 

Schneckloth, 412 U.S. at 233. The State has the burden to show that consent was 

voluntary. Paprskar v. State, 484 S.W.2d 731, 737 (Tex. Crim. App. 1972).

Appellant directs us to Carla Fox’s testimony and argues that her testimony 

created a fact issue about whether Appellant was “in a good decision making 

capacity” at the time of his encounter with police. Fox testified that Appellant was 

taking hydrocodone for the injuries he suffered in the accident, that he seemed 

altered mentally, that he had problems remembering things, and that he did not 

have good judgment. There is no evidence disputing that Appellant was taking 

prescription medication prior to his encounter with police. 

Although the record reveals that Fox cared for Appellant after his 

motorcycle accident, Fox testified that she had been in jail for three days at the 

time of the encounter. Thus, Fox had no personal knowledge about whether 

Appellant took prescription medication that day or during the time that she was in 

jail, nor did she know about his ability to consent to the search on the day that it 

was conducted. Whether Appellant was medicated and did not have good 

judgment several days prior to the encounter is not determinative of whether 
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Appellant was capable of giving voluntary consent to the search on the day of the 

encounter. 

McWhorter testified that Appellant appeared to her to be fully functional.

Yarbrough described Appellant’s demeanor throughout the encounter as “[m]atter 

of fact.” Trooper Pitts believed that he and Appellant were communicating, that 

Appellant understood the questions and answered them reasonably, that Appellant 

was aware of what was going on and why they were there, and that Appellant 

comprehended the situation. 

In light of Trooper Pitts’s testimony about Appellant’s comprehension and 

ability to communicate and interact and McWhorter’s testimony that he appeared 

to be fully functional on the day of the encounter, Fox’s testimony regarding

Appellant’s condition several days before the encounter did not create a factual 

dispute that was material to the determination of whether his consent was 

voluntary on the date of the search. Appellant’s first point is overruled.

In his second and third points, Appellant challenges the admissibility of 

certain expert testimony and exhibits. We review a trial court’s determination that 

a witness is qualified as an expert and its ruling on the admission of expert 

testimony for an abuse of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. 

Crim. App. 2006). “Absent a clear abuse of that discretion,” we will not disturb 

the trial court’s decision to admit or exclude testimony. Wyatt v. State, 23 S.W.3d 

18, 27 (Tex. Crim. App. 2000). 

The trial court may admit the testimony of an expert “[i]f scientific, 

technical, or other specialized knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue.” TEX. R. EVID. 702. Thus, to be 

admissible, the proponent of expert testimony must establish by clear and 

convincing evidence the following three conditions: “(1) the witness qualifies as an 

expert by reason of his knowledge, skill, experience, training, or education; (2) the 
8

subject matter of the testimony is an appropriate one for expert testimony; and 

(3) admitting the expert testimony will actually assist the fact-finder in deciding 

the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006).

In his second point, Appellant argues that Trooper Pitts and Deputy 

Yarbrough were not qualified “to testify to the State’s inability to obtain 

fingerprints or DNA evidence from the pipe found in Appellant’s truck.” 

“The party proffering the expert witness bears the burden of showing that 

the witness is qualified on the specific matter in question.” Penry v. State, 903 

S.W.2d 715, 762 (Tex. Crim. App. 1995). We must review the trial court’s ruling 

in light of the evidence before the court at the time of the ruling. Rodgers, 205 

S.W.3d at 528–29. “The special knowledge which qualifies a witness to give an 

expert opinion may be derived from specialized education, practical experience, a 

study of technical works, or a varying combination of these things.” Penry, 903 

S.W.2d at 762. “Because the possible spectrum of education, skill, and training is 

so wide, a trial court has great discretion in determining whether a witness 

possesses sufficient qualifications to assist the jury as an expert on a specific topic 

in a particular case.” Rodgers, 205 S.W.3d at 527–28.

In Acevedo, when the investigator testified that “[n]o latent prints evidence 

suitable for identification [was] developed,” the defendant objected to the

investigator’s qualifications as an expert. Acevedo v. State, 255 S.W.3d 162, 171 

(Tex. App.—San Antonio 2008, pet. ref’d) (alterations in original). The 

investigator received training at the academy and took “an in-service class on 

identifying fingerprints.” Id. The investigator explained that he had lifted latent 

prints from crime scenes “[s]everal hundred times.” Id. The court concluded that 

the investigator’s “testimony exhibited his training and experience with regard to 

collecting fingerprint evidence” and held that it was not an abuse of discretion to 

allow him to testify about “why a particular individual may not leave suitable 
9

prints” because he was “trained and experienced in lifting latent fingerprints.” Id.

at 171–72.

Trooper Pitts described the pipe that was found in Appellant’s pickup as a 

glass pipe that “had methamphetamine residue on the inside, a white powdery coat 

that you could tell that somebody had been smoking methamphetamines using that 

pipe.” Trooper Pitts testified that it was not reasonable to think that fingerprints or 

other DNA could be lifted from the pipe. The defense objected to Trooper Pitts’s 

qualifications to explain why he did not think it was reasonable to obtain 

fingerprints or DNA from the pipe. Trooper Pitts testified that he had gone

through the police academy eighteen years before and that he went through the 

DPS training academy seven years later when he became a trooper. He also 

received specialized training about methamphetamine and other controlled 

substances and had found methamphetamine in vehicles on many occasions. 

Trooper Pitts had also been to fingerprint schools. The trooper explained, 

“Fingerprints, you can pull fingerprints off of different surfaces, depending on 

what that surface is; but, a lot of times, like a meth pipe, when they smoke 

methamphetamines, it gets the residue on the outside of the pipe, which coats the 

pipe.” Trooper Pitts further explained, “It would be like somebody having really 

oily hands and touching that stuff.” As it related to “this meth pipe,” Trooper Pitts 

stated that conditions were not “conducive to pulling fingerprints off of that.” 

When the State asked Deputy Yarbrough why he did not have the pipe tested 

for fingerprints, the defense objected to Deputy Yarbrough’s qualifications to 

answer the question. Deputy Yarbrough testified that he had his basic peace 

officer certification, that he had specialized training regarding methamphetamine

and other controlled substances, and that he had found methamphetamine in 

vehicles on many occasions. According to Deputy Yarbrough, fingerprints could 

not be lifted off the pipe. Deputy Yarbrough explained that there is a round part 
10

where the methamphetamine is placed and that smoke travels through the pipe on 

the inside but also adheres to the outside of the pipe. On cross-examination, 

defense counsel questioned Deputy Yarbrough about why he had not tested the 

pipe for DNA, and he said, “Well, again, you’re back to the breakdown of the 

DNA, same as fingerprints on the tube.” 

Deputy Yarbrough and Trooper Pitts testified about their training and 

experience with regard to collecting fingerprint evidence. See Matson v. State, 819 

S.W.2d 839, 851 n.10 (Tex. Crim. App. 1991) (“A witness may be qualified by 

reason of knowledge, skill, experience, or training, regardless of its source.”). 

Their testimony was limited to the types of surfaces that are not conducive to 

lifting fingerprints. As officers trained and experienced in lifting fingerprints, their 

area of expertise included what makes certain surfaces less suitable to lift 

fingerprints. Accordingly, we cannot conclude that the trial court abused its 

discretion when it admitted the testimony of Deputy Yarbrough and Trooper Pitts.

Even if there was error, we must conclude that any such error was harmless 

because Appellant admitted to possessing the pipe. The State elicited the officers’ 

testimony to explain why it could not offer fingerprint or DNA evidence to connect 

Appellant to the pipe. Appellant entered a plea of guilty and paid a $565 fine for 

the paraphernalia ticket that he received in connection with the pipe. Any error 

that resulted from allowing the officers to testify about why they could not offer 

fingerprint testimony in order to directly connect the pipe to Appellant would have 

been rendered harmless in light of Appellant’s admission by his plea of guilty to 

the possession-of-paraphernalia offense. Appellant’s second point is overruled.

In his third point, Appellant contends that the trial court erred when it 

admitted the Drug Analysis Laboratory Report and allowed forensic scientist 

Raymond Arthur Waller, Jr. to testify about the results of that report because the 

State failed to first establish the reliability of the results. 
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To establish reliability, “(a) the underlying scientific theory must be valid;

(b) the technique applying the theory must be valid; and (c) the technique must 

have been properly applied on the occasion in question.” Kelly v. State, 824 

S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant challenges the application of 

the technique under the third prong. Appellant directs us to Waller’s testimony 

where he could not tell the jury the date that the GCMS had been calibrated, the 

date that method blanks had last been run, the exact lowest point of the detection 

limits, or the signal-to-noise ratio and argues that the State failed to show that the 

scientific technique was properly applied in this case. 

Appellant cites Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003)

as “[a]lmost an identical situation.” In Hernandez, the Court of Criminal Appeals 

concluded that there was “no other evidence or material in this trial record . . . that 

would support any finding of the scientific reliability of the ADx analyzer.” 116 

S.W.3d at 30. The State failed to carry its burden in Hernandez to establish the 

reliability of a new science. Id. at 30–31. Hernandez was decided because of lack 

of evidence to explain how or why the ADx analyzer was reliable for urinalysis 

and not whether it was properly applied on the occasion in question. Id. Appellant 

does not challenge the reliability of the GCMS but rather contends that the State 

“failed to establish that [Waller] or anyone else in [the] laboratory correctly 

applied [the] techniques” in this case. 

The record reflects that Waller has a bachelor’s of science degree in 

chemistry and, at the time of his testimony, had been employed by the Texas 

Department of Public Safety Crime Laboratory for more than fifteen years. In 

addition to testing, writing reports, testifying, and handling personnel matters, he is 

“the laboratory’s quality manager.” Waller ensures that all reports comply with the 

lab’s operating guidelines and standard operating procedures. According to 

Waller, the GCMS that was used in this case is calibrated once a week. Waller 
12

said, “I know it was calibrated, but I don’t know the exact date.” When asked 

about “the procedures for the calibration” using auto tune, Waller explained that he 

uses computer software and that “[j]ust a click of a mouse will let you auto tune 

the instrument.” When asked whether he used “method blanks in the system” to 

test for the presence of contaminants, Waller said that “blanks are [run] once a 

quarter” in accordance with the laboratory’s standard operating procedure. Waller 

did not know the date that method blanks were last used prior to the testing in this 

case. 

Waller also testified that the detection limits are “well below a milligram 

strength.” Waller did not know the exact number but said, “I just know it’s well 

below a milligram strength.” The lab report shows that 0.01 grams of 

methamphetamine were tested in this case. Waller also did not know the signal-tonoise ratio for this particular GCMS, but he explained that this “procedure was 

done with the validation of this piece of equipment.” He explained that validation 

occurs when a new piece of equipment arrives at any DPS crime lab; a series of 

tests are conducted to ensure “that this instrument works, and it works properly.” 

Waller also testified that the testing in this case was conducted according to 

laboratory policy at all stages of testing. 

Appellant argued at trial that there was no evidence of calibration or method 

blanks and argues on appeal that “there is no reliability upon which the State can 

base its evidence.” Although Waller did not know the exact date of calibration or 

when method blanks had been run, he is the laboratory control manager and 

testified that the proper methods of testing were applied at all stages of the testing 

process. While Waller did not know the signal-to-noise ratio, he testified that the 

machine went through the validation process when it arrived at the lab. Appellant 

complains that Waller “could not state how the instrument was calibrated other 

than by an auto tune with a mouse click,” but Appellant did not ask Waller to 
13

explain how the software program worked. Given Waller’s testimony, we cannot 

conclude that the trial court abused its discretion when it admitted the lab report 

and allowed Waller to testify to the results contained therein. See Ellison, 201 

S.W.3d at 723. Accordingly, Appellant’s third point is overruled.

In his fourth point, Appellant argues that the trial court erred when it denied 

his motion for new trial without first conducting a hearing. Appellant’s sentence 

was imposed on May 1, 2012. Appellant’s motion for new trial reflects a file 

stamp of May 31, 2012. A “Certificate of Presentment,” signed by Appellant’s 

attorney, was attached to the motion. In the certificate, Appellant’s attorney 

certified that he had hand delivered the motion to the office of the trial court. The 

motion was overruled by operation of law.

To preserve error from the denial of a motion for new trial, the motion must 

be presented to the trial court. TEX. R. APP. P. 21.6; Thompson v. State, 243 

S.W.3d 774, 776 (Tex. App.—Fort Worth 2007, pet. ref’d). Presentment means 

that the defendant has given the trial court actual notice that he wants the trial court 

to hold an evidentiary hearing and rule on the motion. Carranza v. State, 960 

S.W.2d 76, 78 (Tex. Crim. App. 1998). A defendant must provide actual notice 

and must show that the motion was actually delivered to the trial court or otherwise 

brought to its attention. Thompson, 243 S.W.3d at 776.

Appellant did not show actual notice to the trial court because the 

“Certificate of Presentment” showed only that the motion was hand delivered to 

the trial court’s office. Such a certificate of presentment does not show 

presentment under the rule. See Hiatt v. State, 319 S.W.3d 115, 122 (Tex. App.—

San Antonio 2010, pet. ref’d); Owens v. State, 832 S.W.2d 109, 111–12 (Tex. 

App.—Dallas 1992, no pet.). This is the case even when it is certified in the 

presentment certificate that the motion was presented to the trial court. Hiatt, 319 

S.W.3d at 122; Owens, 832 S.W.2d at 111. Moreover, there is no evidence that 
14

Appellant requested a hearing because Appellant did not request one in the motion 

or include an order for a setting. Because this record does not show that Appellant 

ever presented a motion for new trial that included a request for a hearing and 

because there is no showing that such a request was ever brought to the attention of 

the trial court, we cannot say that the trial court erred when it failed to hold a 

hearing on Appellant’s motion for new trial prior to the motion being overruled by 

operation of law. Rozell v. State, 176 S.W.3d 228, 231 (Tex. Crim. App. 2005). 

Appellant’s fourth point is overruled.

We affirm the judgment of the trial court. 

JIM R. WRIGHT

CHIEF JUSTICE

July 31, 2014

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Wright, C.J., 

Willson, J., and McCall1

Bailey, J., not participating.

 1

Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by 

assignment.