### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00354- CR
Kyle Wayne F rasier , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 33RD J UDICIAL DI STRICT NO. 351 64, H ONO RAB LE GUILF ORD L. JO NES II I, J UDGE P RESIDING

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

A jury convicted appella n t Ky l e Way ne Fr asier of the offe nse of possession of

a controlled substance, methamphet am i n e, i n t he amount of four g rams or more but less than 200 g rams, with intent to deliver. See Tex. Hea lth & Safety Code Ann. § 481.112(d) (West 2010). Punishm ent was assessed at thirty y ear s’ imprisonment. I n two issues on appea l, Fr asier asser ts that the chain of custody for t h e controlled substance was not established and that the district court abused its discre tion in deny ing F rasier ’s motion for continuanc e. We will affir m the judgme nt.

BACK GR OUND The jury hear d evidenc e that in the ear ly morning hours of Marc h 5, 2008, Offic er Ricky Bindseil of the Marble Fa lls Police Depa rtment observe d Fr asier’ s vehicle speeding and initiated a traff

ic stop. Bi n d s ei l t es t i fi ed that during the stop, he asked Fr asier, who was a suspect in an ongoing narc otics investiga tion, and two other occupants t o s t ep out of t he vehicle.Bindseil then direc ted his narco tics-sniffing police dog , Ringo, to sniff the exterior of the vehicle

for drug s. Acc ording to B indseil, Ring o g ave a “positive aler t” for the prese nce of narc otics at the front passeng er side of the vehicle, wher e Fr asier had been sitti ng . Bindseil then sear ched that are a of t he vehicle and found a brown bag located on the floorboard. I nside the b ag, Bindseil testified,

wer e a c ontainer of

“Wet Ones,” a ca

mouflag e bag , three digital scale s, a bag of bag g ies, a pouc h, a lig hter, a

knife, a nd a small spoon. Bindseil testified that he delivere d the bag “straig ht to Serg eant [Brent] Nichols” of the Marble Fa lls Police Depa rtment, who was leading the narc otics investiga tion and who had since

arr ived at the scene . Nichols testified that he opened the “Wet Ones” container and found two bag s i nside containing a white, cry stalline substance that he suspected was methamphetamine. Aft er examining the evidenc e, Nichols then secur ed and delivere d the items to the Special Oper ations Unit in Marble Fa lls and “droppe d them in evidenc e lockup to secur e them overnig ht until I could proce ss them the next day .” Acc ording to Nichols, the ev idence had not been in the custody of any body

o t h er t han himself and Bindseil prior to Nichols “dropping it throug h the chute” at lockup. The
next d ay , Ni ch ols rec alled, the two bag s containing the suspected methamphetamine wer e seale d for transport to t h e DP S cr ime lab. Acc ording to Nichols, the evidenc e was delivere d to the crime lab by Offic er Homer Wallace, who did not testify at trial. At the crime lab, the substance in the bag s was tested by DPS che mist Joel B udg e. Budg e testified that the substance tested positive for methamphetamine and that the net weig ht of the substance was 27.63 g rams in one bag and .10 g rams in the other

.

2Other evidenc e admitted at trial tended to show that Fr as i er h ad intent to deliver

the methamphetamine, including the testimony of Deputy Kevin Nea l of the Bur net County Sheriff’ s Offic e. Nea l, who had transporte d Fr asier from the Bur net County jail to the Comanche County jail in May 2008, testif

i ed t h at during the transport, he had overhe ard a conver sation betwee n Fr asier and another inmate, Z acha ry Hoffma

n. Acc ording to Nea l, Fr asier was arg uing with Hoffma n about “who c ould sell the most dope around Mar ble Fa lls.” The jury convicted Fr asier of possession of methamphetamine with intent to deliver, and, following a punishment hear ing, Fr asier was sentenc ed t o thirty y ear s’ imprisonment. This appea l followed.

ANALYSIS Chain of custody I n his fi rs t i s s u e, Fr asier contends that the State “fa iled to establish a complete chain of custody for the controlled substance involved in this case in that no items wer e marke d by the Officer who first retrie ved them.” Fr as i er specifica lly complains of t he S tate failing to call as

a witness Homer Wallace, the police office r who had delivere d the evidenc e to the crime lab. Fr asier

asser ts that “the State failed to establish that evidenc e seized by Offic er Bindseil was the

same evidenc e that wa s t ak en to the lab by Homer Wallace.” Acc ording ly , in Fr asier’ s view, the district court should not have admitted the evidenc e. Fr asier further contends that the district court should have permitted him to cross-e x amine Offic er Ni chols on “alleg ations of numerous irreg ularities in the evidenc e locke r at the Ma rble F alls Poli ce D epar

tment.”

3W e re v i ew a trial court’s decision to admit or exclude evidenc e for an abuse

of discretion. Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App. 2008). “The sufficie ncy of the predic ate [for admitting evidenc e] is also within the sound discretion of the trial court.” Davis

v. State , 992 S.W .2 d 8 , 1 1 (Tex

. Crim. App. 1996). The trial court does not abuse its discretion unless its ruling lies “outside the zone of rea sonable disag ree ment.” W alters v. State , 247 S.W .3d 204, 217 (Tex. Crim. App. 2007).

“[A]l though the evidentiar y rules do not specific ally addre ss proper chain of custody , they do s t at e that identification for admissibili ty purposes is satisfied if the evidenc e is sufficie nt to support a finding that the matter i n q u es t i on is what its proponent claims.” Druery v. State , 225 S.W .3d 491, 503 (T ex . C rim. App. 2007) (citing Tex. R. Evid. 901(a) ); Lagrone v. State , 942 S.W .2d 602, 617 (Tex. Crim. App. 1997). This can be acc omplish ed b y t es timony from a witness with knowledg e that an item is what it is claimed to be. See Tex. R. Evid. 901(b)( 1). I f the party seeking admission of evidenc e is not able to identify the “phy sical evidenc e throug h distinctive marking s or the like, or i f t h e ev i d en ce is fung ible, as are drug s or test results,” proof of chain of custody is require d. Davis , 992 S.W .2d at 10-11. When the State shows the beg inning and the end of a chain of custody , any intermediate g aps g o to the weig ht rathe r than the admissi b i l i t y o f the evidenc e, particula

rly if the chain of custody ends at a labora tory
. Martinez v. State , 186 S.W .3d 59, 62 (Tex. App.—Houston [1s t Dist.] 2005, pet. re f’d)

.

I n this case , Offic er Bindseil testified that he did not place any identify ing marks

on the evidenc e afte r he had seized it. At that point, the district court sustained Fr asier’ s objection
to the chain of custody

. Howeve r, Bindseil also testified that he had delivere d the evidenc e “straig ht

4to Se rge an t Ni chols,” and the district court allowed the State to establish the chain of custody

throug h that witness. Nichols testified that afte r Bindseil g ave him the container that contained the suspected methamphetamine, he “took the suspected narc otics from it, packa g e d th e m s e p a rate ly and dropped the m in the special ope rations unit evidence lockup.” This was done, Nichols e x plained, “to secur e [t he suspected narc otics] o v er night until I could proce ss them the next day .” Prior to dropping the evidenc e in lockup, Nichols testified, the evide n ce h ad not been in the custody of any one other than himself and Bindseil. An d , alt houg h Nichols testified that he did not place

an y identify ing marks on the “external packa g e” in which the suspected methamphetamine

was transporte d to the crime lab, he explained that he had marke d wit h h i s i n i t i als “the packa g e that contain[ed] the suspected methamphe tamine.” When this packa g e was offe red into e vidence , Nichols testified that he rec og nized it as the “bag

. . . that contains suspected methamphetamine to be submitt ed to DPS for analy sis.” On the d ay afte r he had dropped the evidenc e into lockup, Nichols rec alled, he “re quested the evidenc e back from [t he evidenc e custodian] so I could proce ss it to be sent to the lab.” Nichols then seale d the bag containing the suspected narc otics, place d the “proper d o cu m en t s on it, and place d it back into the evidenc e lockup.” The evidenc e was then transporte d by Offic er Wallace to the DPS Crime L ab, wher e it was analy zed, and then returne d to evidenc e lockup. Nichols confirme d that he had r etrieve d the evidenc e fr om lockup that morning prior to his testimony

. When Nichols identified the evidenc e bag in court, he ob s er v ed t h at the “lab a naly sis number [on the bag ] i s L -372016.” N ichols’s identification wa s consistent with that of t he DPS chemist, Budg e, who testified t hat he had performe d an analy si s o n the s ubstance that

5had been assig ned the labora tory case number of “L -372016.” The substance, Budg e testified, tested

positive for methamphe tamine.

We conclude that the above evidenc e is sufficie nt to support a findin g b y the district court that the suspected methamphetamine was what the State claimed it to be. See Tex. R. Evid. 901(a)

. There wer e some potential problems with the chain of custody , including, as Fr asier observe s , Offic er Bindseil’s failure to place identify ing marks on the evidenc e and the fac t that the office r who had transporte d the evidence to the crime lab, Homer Wallace, did not testify

. Howeve r, absent evidenc e of tampering or other fra ud, which was not pr esente d here , problems in the chain of custody do not aff ect the admissibili ty of the evidenc e. See Druery , 225 S.W .3d at 503. I nstead, such prob l em s af fe ct the weig ht that the fac tfinder should g ive the evidenc e, which may be broug ht out and arg ued by the parties, as was done in this case . See id

. at 503-04. On this rec ord,

we c annot conc lude that the district cour t abused its discretion in admitting the e vidence

. As for the district court’s decision not to p er m i t Fr asier to cross-e x amine Nichols

conce rning alleg ed irreg

ularities at the evidenc e locker , i t i s well settled that a trial court has wide discretion in limit ing the scope and extent of cross-e x amination. See Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986) (“tria l judge s reta in wide latitude” under Confrontation Clause to impose restric tions on cross-e x amination base d o n such criter ia as “har assment, prejudice , confusion of the issues, the witness’ safe ty , or interrog ation that is repe titive or only marg inally rele vant”) ; Castle

v. State , 748 S.W .2d 230, 233 (Tex. Crim. App. 1988) (“G ener ally , the scope of cross-e x amination is within the control of the trial court and in the exercise of its own discretion.”)

. Fr asier’ s counsel wanted to question Nichols conce rning counsel’s “under standing that Homer Wallace [had] acc used

6Br ent Nichols of taking drug s from the evidenc e locker .” Be fore ruling on counsel’s req uest, the

district court asked counsel, “Do y ou have any information that it had any thing to do with this case ? ” Counsel responded, “ They ’re not going to let me g o looking a round in the Marble Fa lls PD. That information, p l u s t h e fac t that there was this fede ral lawsuit filed which I believe mentions that, that’s all the information I have.” The State then rema rked, “Tha t just seems far too remote to try to go into,” and, “I just don’t think it’s specific enoug h.” The district c ourt ag ree d, and did not allow counsel to proce ed with t hat l ine of questioning. L ater , at t he close of t he S tate’s evidence , counsel re- urg ed his reque st. Counsel claimed that he had asked a repor ter from KXAN “wha t she had on the investiga tion.” Acc ording to counsel, the repor ter “fa x ed me her notes and her story —or email that—and in there , there wer e al l ega t ions by Homer Wallace that Br ent Nichols had taken drug s out of the eviden ce l o ck er . I ’m g oing to ask him about that.” The district court ag ain 1 denied the r equest.

We cannot conclude that the district court’ s d ec i s ion was outside the zone of

rea sonable disag ree ment. Whatever acc usations Wallac e may have made ag ainst Nichols, there is

n o i n d i cation in the rec ord that the acc usations rela ted to the evidenc e in this case or that t h e
acc usations had any merit. The dist rict court could have also found t hat allowing t he questioni ng could have needle ssly delay ed the trial, as the State likely would have felt comp el l ed t o p re sent contra ry evidenc e ref

uting the acc usations

. T h u s , the district court would not have abused its discretion in concluding t h at wh atever marg inal rele vance the questioning may have had was

Whatever information may have been provided to counsel by the repor ter, it d o es n ot 1 appea r in the re cord be fore us. 7substantially outweig hed by the dang er of unfair prejudice , confusing the issues, misleading the jury ,

or consider ations of undue de lay

. See Tex. R. Evi d. 403.

We overrule Fr asier’ s first issue.

Motion for continu ance

I n his second issue, Fr asier asser ts that the d i s t ri ct court abused its discretion in deny ing Fr asier’ s reque st during trial for a continuance

. Fr asier cl ai m s that a continuance was neede d “bec ause of the State’s failure to reve al the exis tence of potential witnesses, Kevin Nea l and Z ach Hoffma

n, within ten day s prior to trial” as require d by local rules. Acc ording to Fr asier, “he 2

was surprised by the testimony of Nea l a nd did not have enoug h time to locate Z ach Hoffma n as a potential witness to rebut Ke vin Neal’ s testimony .”

I t is undisputed that Fr asier was notified of “additional discovery ,” including the testimony of Nea l, via fax at 4:56 p.m. on May 15, 2009, the Fr iday befor e trial. I n response , Fr asier’ s counsel filed a motion asking the district court to exclude the evidenc e or, in the alterna tive, “g rant a continuance in this matter so that the defe ndant can g et this i n fo rm at i o n and have ample time to revie w this new evidenc e.” I n a hear ing on May 18, the day the trial was schedule d to beg in, the di strict court denied the motion to ex clude but agr eed to “dela y the t rial for a day .” Howeve r, the district court a dded, “I ’m not g oing to just continue it to a whole ne w trial setting .” 3

See 33rd and 424th (Tex.) Dist. Cts. Standing Orde r on Criminal Case Docke t Control, 2 p. 5 o f 8 , a v a il a b le a t h tt p :/ /d c o u r t. o r g/f o r u m/ f il e s /d o w n lo a d s /S ta

n d in g Orde rCrimDocke tControl.pdf (last visited J uly

8, 2010). On appe al, Fr asier doe s not complain of the district cour t’s pretria l ruling. 3

8The trial beg an the following day

. Howeve r, the State did not prese nt the testimony

of Nea l until the second d ay o f t ri al , on May 20. During a bench confe renc e prior to Nea l’s testimony , Fr asier’ s counsel ag ain soug ht a continuance

. This time, counsel arg ued that in order to ref ute Nea l’s testimony reg arding the conver sation betwee n Fr asier and Hoffma n that Nea l had alleg edly overhe ard, he neede d to call Hoffma n (who was appar ently an inmate in TDCJ at the time of trial) as a witness. The district court denied the reque st for a continuance

. Counsel then reque sted “per mission to try to g et Z ach Hoffma n on the telephone and let him testify b y p h o n e i n fr o n t of the jury .” The district court ag ree d to this re quest, and the trial resumed. After the defe nse rested, counsel informed the d i s t ri ct co urt that he had been unable to contac t Hoffma n and reque sted “per mission to reope n and to continue the case so that I can locate that important, cruc ial witness.” The district cour

t ag ain denied the reque st for a c ontinuance. We first o b s er ve that Fr asier’ s reque st for a continuance during trial was oral. No written motion was filed. The code of criminal proce dure provides that “[a] criminal action may be

co n t i n u ed on the written motion of the State or of the defe ndant, upon sufficie nt cause shown; which cause shall b e fu l l y set forth in the motion.” Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006). Addi t i o n al l y , “all motions for continuance must be sworn to by a person having persona l knowledg e of the fac ts relied on for the continuance .” Id

. art. 29.08 (W es t 2 006). The
court of criminal appea ls has construed these provisions to requ i re a s wo rn written motion to prese rve a

ppellate r eview f

rom a trial judg e’s de nial of a motion for a continuance

. See A nderson

v. State , 301 S.W .3d 276, 279 (Tex. Crim. App. 2009). “T h u s , i f a p arty makes an unsworn oral m o tion for a continuance and the trial judge denies it, the party forf eits the rig ht to complain

9about the judge ’s ruling on appea l.” Id

. We conclude that Fr asier has failed to prese rve err or on the

district court’s ruling

.

Moreove r, even if err or had been prese rved, we revie w a t ri al co urt’s ruling on a motion for continuance for abuse of di scre t i o n . Ga l l o v. Stat e , 239 S.W .3d 757, 764 (Tex. Crim. App. 2007); Janec ka v. State , 937 S.W .2d 456, 468 (T ex . Crim. App. 1996); Barney v. State , 698 S.W .2d 114, 127 (Tex. Crim. App. 1985). To establish an ab u s e o f discretion, there m ust be

a showing that the defe ndant was “ac tually prejudice d” by the denial of h i s m o t i o n . Janec ka , 937 S.W .2d at 468; see also Tex. Code Crim. Proc. Ann. art. 29.13 (West 2006) (providing that afte r trial has b egu n , co n t i n uance or postponement “may be g rante d

. . . when it is made to appea r to the satisfac tion of the court that b y s o m e u nexpected occur renc e since the trial beg an, which

no rea sonable diligenc e could have anticipated, the applicant is so taken by surprise that a fair trial

ca n n ot be had”)

. When the appellant contends that he was prejudice d due to the absenc e o f a witness, there must be a showing as to what evidenc e would have been produce d had a continuance been g rante d. See Peak v. State , 522 S.W .2d 907, 909 (Tex. Crim. App. 1975); see also Tex. Code Crim. Proc. Ann. art. 29.06 (West 2006) (providing that motion for continuance based on a

bsence of witness must state, among other things, “the fac ts which are expected to be proved by the witness, and it must appea

r to the court that they are materia l”). Fr asier has failed to make such a showing

. There i s n o i n d i cation in the rec ord as to whether Hoffma n would have ref

uted Nea l’s testimony

re gar ding what Fr asier had alleg edly told him, or how Hoffma n’s testimony would have b ee n materia l to Fr asier’ s case in any other way . On this rec ord, we cannot conclude that the district court abused its discretion in deny ing Fr asier’ s oral motion fo r continuance

. See Ramirez v. State ,

10976 S.W .2d 219, 224-25 (Tex

. App.—El Paso 1998, pet
. ref ’d) (expl aining that proper proce dure following denial of motion for continuance is to “make a bill of exception or file a motion for new trial to explain how, if at all, Appellant was prejudice d by counsel’s inadequa te prepa ration time”). We overrule Fr asier’ s second issue.

CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Aug ust 5, 2010 Do Not Publish

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