### 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. 03-13-00128- CR

RobertLeBlanc, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 699 69, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

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

A jury convicted appellant Robert L eB lanc of the offe nse of manufa cture or delivery

o f a controlled substance, methamphetamine, in an amount more than one g ram but l es s t h an four g rams. Punishm ent, enhanc ed by three prior convictions for the offe nse of posses s i o n o f a

1 controlled substance, was assess ed at 6 0 y ear s’ imprisonment. I n two points of err or on appea l, L eB lanc asser

ts that he was denied the rig ht to confe r with counsel prior to the start of trial and that the district court abused its discr etion in a dmitti ng into evidence an audio r ecor ding of the alleg ed drug transac tion that resulted in L eB lanc’ s arr est. We will affirm the judg ment of convic tion.

BACK GR OUND The jury hear d evidenc e that on May 31, 2 0 1 2 , L eB lanc sold methamphetamine
to a paid informant for the Kil l ee n P o l i ce Depar tment. The S tate’s witnesses at t rial i ncluded the

See Tex. Health & Safety Code § 481.112(c)

. 1detec tive who had led t he operation, Carl Perg ande of the Killeen Police De partment’s O rg anized Crime Unit, and the informant who had, acc ording to the State, purcha sed the drug s from L eB lanc. Perg ande testified t hat on the day of the operation, the informant had met with office rs in the unit and was wired for the purpose of rec ording a “contr olled buy ” of drug s from sever al suspected drug deale rs, one of whom was L eB lanc. Ac co rdi ng to Perg ande, the informant had made a telephone call to L eB lanc, asking to buy an “eig ht ball” of methamphetamine; rea ched an ag ree ment 2 with L eB lanc conce rning the price ; arr ang ed to meet L eB lanc at a specifie d location to purcha se the methamphetamine; and then trave led to that location and wa i ted for L eB lanc to arr ive. Perg ande testified that he and another office r had stationed themselves in an unmarke d police vehicle a short distance awa

y from the informant’s location. A maroon Mitsubis hi Galant eventua lly arr ived at the location, and Perg ande observe d the informant approa ch the vehicle and make the exchang e. Perg ande testified that althoug h he was unable to visually observe the entire transac tion from wher e he was stationed, he could hear the exchang e throug h the wire that the informant was wea ring

. An audio rec ording of the interac tion betwee n the informant and the suspect was admitted into evidenc e. After the Galant drove awa y , the informant approa ched the p o l i ce v eh icle and turned over the methamphetamine that he had pur chase d.

The sus pect vehicle was stopped shortly there afte r. The driver of the vehicle, identified as L eB lanc, was found in possession of $160 in cash, and Perg ande testified that the cash found on L eB lanc contained the same serial numbers as the cash the office rs had gi v en t o the

Perg ande testifi ed that an “eig ht ball” ref ers to one-e ighth of an ounce of 2 methamphetamine, w hich, he a dded, “is a bout three a

nd a half g rams, g ener ally

speaking .” 2informant for the purpose of purchasing the drugs. Also found on L eB lanc was a ce ll phone that 3 was later determined to be the s am e p h o n e t h at the i nformant had called to arr ang e the drug deal. Upon L eB lanc’ s arr est, the informant identified L eB lanc to the office rs as the person who had sold him the narc otics. The informa nt subsequently

identified L eB lanc in cour t as the dea ler. The jury found L eB lanc g uilty as char g ed and assessed punishment as noted above. The district cour

t sentence d L eB lanc in ac corda nce w ith the jury ’s ver dict. This appea l followed.

ANALYSIS Right to confer with coun sel

I n his first point of err or, L eB lanc asser ts that he was denied the rig ht to confe r with counsel prior

to trial. “The F eder al and Texas Constit utions, as we ll as Texas statute, gua rante e a defe ndant in a criminal proce eding the rig ht to have assistance of counsel.” This constitutional and 4 statutory require ment includes the defe ndant’s “rig ht to have sufficie nt time to advise with counsel

an d p re p are his defe nse” prior to trial. When a defe ndant believes that he has not been affo rd ed 5

The office rs had g iven the informant $260 to purcha se the narc otics. Another individual, 3 identified as Anthony Gug ino, was also inside the vehicle at the time of the stop and was found with $100 cash, which Perg ande suspected but could not confirm was the additional mon ey t h at the office rs had g iven to the informant. No c harg es we re f iled ag ainst Gug ino. Gonzalez v. State , 117 S.W .3 d 831, 836 (Tex. Crim. App. 2003) (citing U.S. Const. 4 amend. VI ; Tex. C onst. art. I , § 10; Tex. C ode Crim. Proc. ar t. 1.05). See Powell v. Alabama , 287 U.S. 45, 59 (1932); see also Tex. Code C ri m . Proc. 5 art. 1.051(a) (“The ri gh t t o be repr esente d by counsel includes the rig ht to consult in private with counsel sufficie ntly in advanc e of a proce eding to allow adequate prepa ration for the proce eding .”). 3sufficie nt time to confe r with counsel prior t o t ri al , t he appropr iate proce dure is to file a motion

for c ontinuance. 6

I n t his case , L eB lanc argues that he was unable to confe r with his co u n s el immediately befor e his tria l be g an, when the proce eding s wer e interrupted to a ddress another case that was pending on the district court’s docket that day

. L eB lanc’ s trial counsel was also serving as counsel in this other case. After some preliminary matters in L eB lanc’ s case wer e discussed, the 7 interruption to addre ss the other c ase oc curr ed as f ollows:
[Trial counsel]: On the rec ord, Your Honor, I don’t know how I ’m g oing to be

able to s p en d an y time with the family law matter that y ou have reque sted that beg in inste ad of prepa ring for this case and visiti ng wi t h m y client, but that would be

. . . cause number 261,835. That’s also in y our ver y court. [The Court] : All rig ht. That appa rently has bee n set for howlong? [Trial counsel]: Not very long.

. . . . [The Court] : All rig ht.

. . . We’ve been working on this L eB lanc c ase, tha t

is schedule d t o g o this morning

. Whenever we g et a jury we’ ll be rea dy to g o. That means [ o p p o s i n g counsel in the family -law matter] and [t rial counsel] , y ou all have a few minutes to talk and see what’s in dispute and we’ ll g et on the rec ord on that case in just a moment as soon as we c onclude the cr iminal case.

See Tex. Code Crim. Proc. art

. 2 9

. 0 3 ; He i selbetz v. State , 906 S.W .2d 500, 511-12 6 (Tex. Crim. App. 1995); Guye v. State , 501 S.W .2d 675, 675 (Tex. Crim. App. 197 3 ); s ee also Hooper v

. State , No. 03-08-00125-CR, 2009 Tex. App. L EXI S 7880, at *7-8 (Te x . App.—Austin Oct. 9, 2009, pet. r ef’ d) (mem. op., not desig nated f or publication). We note that trial counsel is not the same attorney who is repr esenting L eB lanc on appea l. 7 4[Trial counsel]: Your Honor, at this time I would l i k e t o h av e permission to confe r with Mr. L eBl an c in private befor e the jury trial beg ins. [The Court] : You’ll have that opportunity in just a moment.

The district court then rec essed the pro ce ed i ng s. The rec ess occur red at 9:31 a.m. The case

rec onvened on the rec ord at 10:25 a .m. A t that time, trial counsel announc ed that he w as re ady to
proce ed, and shor

tly there afte r, trial beg an. I nitially , we observe that L eB lanc’ s complaint that the district court denied him the opportunity to c onfer with counsel is be ing raised for the first time on appea l. At no point pr ior to

o r fo l lowing the rec ess did L eB lanc move for a continuance , object to the resumption o f t h e p roce eding s, indicate that he had lacke d sufficie nt time to confe r, or reque st additional time to confe r. To the contra

ry , afte r the rec ess had conclude d, counsel announce d that he wa s re ad y to
proce ed. Ac cording ly , L eB lanc ha s failed to pre serve err or, if any , in the court be low. 8

Additionally , even if err or had been prese rved, we could not conclude on this rec ord that the district court’s actions on the morning of trial denied L eB lanc the opportunity to confe r with c ounsel. This is not a case in which counsel was appointed to repr esent the defe ndant shortly befor e trial beg an. Trial counsel was appointed to repr esen t L eB lanc on J une 4, 2012. His trial beg an over eig ht months later, on F ebrua ry 11, 2013, and ther e is nothing in the r ecor d to indicate that L eB lanc did not confe r with counsel during that time. To the contra ry , at a pretria l hear ing held

See Tex. R. App. P. 33.1; Anderson v. State , 301 S.W .3d 276, 280 (Tex. Crim. App. 2009); 8 Dewberry v. State , 4 S.W .3d 735, 755 (Tex. Crim. App. 1999); see also Moya v. State , No. 13-11-00591- CR, 2013 T ex . App. L EXI S 4406, at *3-4 (Tex. App.—Corpus Christi Apr. 4, 2013, no pet.) (mem. op., not de signated for publication) (holding that appellant “ waived his rig ht to challeng e trial court’s action” in allowing trial to proce ed when counsel “cle arly indicated that she was re ady to proce ed at the time of

trial”). 5approximately one wee k prior to trial, the subject of which was a plea offe r by the State, trial counsel

made a rec ord perta ining t o discussions he had with L eB lanc conce rning the offe r, confirming that L eB lanc had in f

act c onfer red w ith counsel prior to trial to discuss his de fense

. Moreove r, on the morning trial beg an, prior to the r ece ss, the district c ourt informed c ounsel that he would have

an opportunity “in just a moment” to further confe r with L eB lanc, and there is nothing in the rec ord
to ind i cate that during the recess, which lasted approx imately 54 minutes, L eB lanc did not confe r with counsel. We overrule L eB lanc’ s first point of err or.

Adm issib ility of

audi o rec ording I n his s ec o nd point of err or, L eB lanc asser ts that the district court abused its discretion in admitting into evidenc e the audio rec ording of the drug transac tion. The State offe red the re cording into evidence during the testimony of De tective Per g ande:
Q [H] ave y ou had the opportunity to listen to State’s Ex hibit Number 2,

the audio re cording ? A Yes. Q And was the rec ording equipment oper ating corr ectly that day ? A Yes. Q All rig ht. Does this fairly and acc urate ly repr esent what was re corde d

that day ? A Yes. Q Have there been any additions or deletions or chang es or any thing, to y our knowledg e? A No, not to my knowledg e.

6Q Okay

. And did y ou provide a copy of this to the State and the def ense in the course of this case ? A I provided a copy to the State, and I

believe the y

provided a copy to the def ense. Q Okay . State would offe r Exhibi t 2.

L eB lanc then objected to the exhibi t’s admission on the g round that “the proper predic ate still hasn’t been laid.” Following a bench confe renc e, th e St a te asked Perg ande, “De tective Perg ande, on State’s Ex h i b i t Nu m ber 2, did y ou rec og nize any of the voices on this tape? ” Perg ande testified that he

rec og nized the voices of L eB lanc, the informant, and a third individual who Pergan d e identified

as the informant’s uncle. The State ag ain offe red the rec ording i n t o ev i dence , and L eB lanc 9
ag ain obj ecte d without elabora tion that “the proper predicate hasn’t been laid.” The dist rict court

over ru l ed t h e objection. On appea l, L eB lanc argues that the State failed to proper ly authentica te L eB lanc’ s voice on the r ecor ding. 1 0

I n response , the State first argues that L eB lanc failed to prese rve err or on this point. We ag ree . “As a prer equisite to prese nting a complaint for appellate revie w, the rec ord must show that the complaint was ma de to the t rial court by a ti mely reque st, objection, or motion that stated the g rounds for the ruling that the complaining party soug h t fr o m t h e trial court with sufficie nt specific ity to make the trial court awa re of the complaint, unless the specific g rounds wer e appar ent

Earlier in his testimony , Perg ande had explained that the arr ang ed location for the drug buy 9 was a residenc e occupie d by members of the informant’s family and that the informant’s uncle was prese nt at the residenc e and had been conver sing with the informant shortly befor e the transac tion.

See Tex. R. Evid. 901(a) (“The requirem ent of authentication or identification as a 1 0 condition pr ece dent to admissibili ty is satisfied by evidenc e sufficie nt to support a finding that the matter in question is what its proponent claims.”); Angleton v. State , 971 S.W .2d 65, 67 (Tex. Crim. App. 1998) (e x plaining a uthentication re quirements under Rule 901(a) ). 7from the context.” Her e, counsel’s objection on the rec ord was limit ed to a g ener alized objection 1 1 that “the proper predic ate hasn’t been laid.” I t is well established that an objection that “the proper predic ate has not been laid” could encompa ss sever al differ ent objections and is thus too g ener al to
prese rve e rror . There is no other objection in the re cord. 1 2
Moreove r, even if the issue had been prese rved below, we could not conclude on this

rec ord that L eB lanc was harme d by any failure of the State to proper ly authenticate L eB lanc’ s voice

on the rec ording during Perg ande’ s testimony

. A violation of the evidentiar y rules that results in the

err oneous admiss ion of evide n ce i s non-constitutional err or. Such err ors “must be dis reg arde d” 1 3 if they do not aff

ect a defe ndant’s “substantial rig hts.” Substantial righ t s are not aff ecte d by the 1 4

err oneous admiss ion of evidence if the appe llate cour t, after examining the re cord a s a whole, has fair assura

nce that the err or did not influence the jury or had but a slight eff ect. As a g ener al rule, 1 5

Tex. R. App. P . 33.1(a) (1)( A). 1 1 See Bird v. State , 692 S.W .2d 65, 70 (Tex. Crim. App. 1985); Canada v. St a t e , 1 2 589 S.W .2d 452, 454 (Tex. Crim. App. 1979); Harris v. Stat e , 565 S.W .2d 66, 69-70 (Te x . Crim. App. 1978); Y

oung v. State , 183 S.W .3d 699, 704-05 (Tex. App.—Tyler 2005, pet. ref ’d); Gregory v. State , 56 S.W .3d 164, 182 (Tex. App.—Houston [14t h Dist.] 2001, pet. dism’d); see also Fresch v. State , No. 0 3 -0 5-00845-CR, 2007 Tex. App. L EXI S 6353, at *12 (Tex. App.—Austin Aug

. 6, 2007, no pet.) (me m. op., not designated for publication) (“An obj ection to an im proper predic ate that fails to inform the trial c ourt exactly how the pre dicate is de ficient will not prese rve e rror .”). See King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997); S a n d o va l v. State , 1 3 409 S.W .3d 259, 287 (Tex. App.—Austin 2013, no pet.). Tex. R. App. P . 44.2(b). 1 4 Motilla v. State , 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). 1 5 8the improper admission of evidenc e is rende red harmles s wh en o ther proper ly admitted or

unobjected- to evidence is admitted to prove the same fac t. 1 6

I n this case , there was other proper ly admitted evidenc e tending to authentica t e L eB lanc’ s voice on the audio rec ording

. The informant who had purcha sed the drug s from L eB lanc also identified L eB lanc’ s voice on the audio rec ording during his testimony

. The informant testified that he had known L eB lanc since 2005 and had previously spoken to L eB lanc on the te lephone to

arr ang e the drug purcha se. This evidenc e suppor t s a fi n d i n g that the i nformant was familiar with L eB lanc’ s voice and thus could accurately identify it on the recording. Acc ording ly , any failure 1 7 by the S t at e to proper ly authenticate L eB lanc’ s voice through Perg ande’ s testimony was render ed harmless by the subsequent testimony of the informant proving the same fac t. Additionally , there 1 8

was other evidenc e of L eB lanc’ s g uilt independe nt of the audio rec ording , which mitigates ag ainst

a finding of harm. Perg ande testified that he had visually observe d the info rm ant approa ch the 1 9 vehicle in which the suspected drug transac tion had occur red, and shortly there afte r, office rs stopped

See Lane v. State , 151 S.W .3d 188, 192-93 (Tex. Crim. App. 2004); B r o o ks v. State , 1 6 990 S.W .2d 278, 287 (T ex . Crim. App. 1999); Mitchell v. State , 419 S.W .3d 655, 660 (Tex. App.—San Antonio 2013, pet. ref ’d). See Angleton , 971 S.W .2d at 67 (“The authentication require ment for admissibili ty 1 7 ‘is satisfied by evidenc e sufficie nt to support a finding th at t he matter in question is what its proponent claims.’” (quoting Tex. R. Evid. 901(a) )); W atson v. State , 421 S.W .3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref ’d) (“Courts t ra d i t i o n all y provide a broad rea ding of Rule 901, allowing the jury to weig h the cre dibilit y of the evidenc e, ‘[s] o long as the authenticity of the proff ere d evidenc e was at least within the zone of rea sonable disag ree ment.’” (quoting Campbell v. State , 382 S.W .3d 545, 552 (Tex. App.—Austin 2012, no pet.))).

See Lane , 151 S.W .3d at 193; Leday v. State , 98 3 S

. W

. 2 d 7 1 3 , 718 (Tex. Crim. 1 8 App. 1998).

See M otilla , 78 S.W .3d at 357. 1 9 9the suspect vehicle and found L eB lanc inside. The informant testified that L eB lanc was the person

from whom he had purcha sed the drug s, and he identified L eB lanc both in court and at t h e s ce n e of the arr est as t h e p er s o n wh o had sold him the narc otics. Moreove r, upon his arr est, L eB lanc was found with the s ame cash t hat t he informant had used to purc h as e t h e narc otics and the same cell phone that the informant had called to arr ang e the transac tion. On this rec ord, we cannot conclude that any failure by the State to proper ly authenticate L eB lanc’ s voice on the audio rec ording aff ecte d L eB lanc’ s substantial rights.

We overrule L eB lanc’ s second point of e rror .

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 Field Affir med Filed: De cembe r 10, 2014 Do Not Publish

10