## NO. 12

- 20

- 00015

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JOSUE TALAVERA , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FRO M THE 7 TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM O PINION
Josue Talavera appeals the trial c ourt ’ s judgment adjudicating him guilty of money laundering. In two issues, Appellant argues that the trial court abused its discretion by adj udicating him guilty and revoking his community supervision. We affirm.

B ACKGROUND Appellant was indicted in 20 17 for the first

- degree felony offense of engaging in organized criminal activity. 1 Ultimately, pursuant to a plea agreement, Appellant pleade d “guilty” to the lesser

- included third

- degree felony offense of money la undering, and in September 2019, the tri al court placed him on deferred adjudication community supervision for two years. 2 The State filed a motion to adjudicate Appellant ’ s guilt in December 2019 alleging that he failed to abide by the terms of his comm unity supervision. Specifically, the Sta te alleged that Appellant used or consumed marijuana and that he attempted to alter or falsify his drug test results by providing a diluted uri ne specimen. Appellant pleaded “not true” to the allegations in

1 See T EX

. P ENAL C ODE A NN

. § 71.02 (West Supp. 2020 ).

2 See id

. §§ 34.02 (West 2016 ); 71.02(a)(10) (offense of money lau ndering is a lesser

- included offense of engaging in organized criminal activity).2 the Sta te ’ s motion. After a hearing, the trial court adjudicated Appellant ’ s guilt and found the
State ’ s allegations to be “true.” Accordingly, it found Appellant “guilty” of the underlying offense, revoked his community supervision, and assessed his punishment at confinement in a state jail facility for two years. This appeal followed. Appellant ’ s initial appellate counsel made a professional evaluation of the record and
concluded that th ere was no reversible error. Accordingly, counsel filed a motion to wit hdraw as
counsel as well as an Anders bri ef. A ppellant thereafter filed a pro se brief as part of the Anders procedure. In the interim, Appellant ’ s appellate counsel was elected to s erve as Judge of the 114th Judicial District Court, Smith County, Texas, and we granted his motion to withdraw. We subsequently remanded the case for appointment of new counsel. The trial court appointed new counsel, who made her own evaluation of the re cord, and filed a brief raising a single issue challenging the constitutionality of the “time payment” fee assess ed against Appellant. Appellant expressed his dissatisfaction with the issue raised in his newly appointe d counsel ’ s brief, indicating that he wished to proceed pro se on his appeal, and that we address the issues
raised in his earlier pro se brief he fil ed as part of the Anders procedure.
We remanded the matter for a hearing advising Appellant of the danger s and disadvantages of self

- represent ation and to determine whether he knowingly and intelligently
made the decision for self

- representation on appeal

. 3 After the hearing, the trial court found that Appellant knowingly and intell igently decided to proceed pro se on appeal

. Accordingly, we

g ranted Appellant ’ s newly appointed counsel ’ s motion to withdraw her amended bri ef and her
motion to withdraw as c ounsel. We likewise have granted Appellant ’ s motion for pro se representation on appea l and will proceed only on the issues raised in his earl ier filed pro se
brief. 4

3 Since the matter arose in the tr ial court where Appellant’s original appellate counsel became J udge, the trial court transferred the matter to the 7 th Judicial Dis trict Co urt in Smith County, Texas.

4 Appellant is acting pro se; however, pro se litigants are held to the same standards a s li censed attorneys and must comply with all applicable rules of procedure; otherwise, pro se litigants would benefit from an unfair advan tage over parties represented b y counsel. See Morgan v. State , No. 12

- 06

- 00226

- CR, 2009 WL 2767300, at *1 n.1 (Tex. App.

— Tyler Sept. 2, 2009, pet. ref ’ d, untimely filed) (mem. op., not designated for publication) (citing Perez v. State , 261 S.W.3d 760, 76 3 n.2 (Tex. App.

— Houston [14th Dist.] 2008, pet. ref’d)).3 R EVOCATION OF C OMMUNITY S UPERVISION In his two issues, Appellant contends that the tri al court abused its discretion when it revoked his community supervision.
Standard of Review Appellate review of an order adjudicating guilt an d revoking community supervision is limited to determining whether the trial court abused its discretion in findi ng that the defendant violated the terms of his community supervision. Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The appe llate court views the evidence in the light most favorable to the trial

court ’ s order. Canseco v. State , 199 S.W .3d 437, 439 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref ’ d). To revoke community supervision, the State must prove by a preponderance of the evidence that the defendant violated a condition of his community supervision. Id. at 438. The
State satisfies this burden if the greater weight of credible evidence creates a reasonable belief that the defendant violated a condition of his community sup ervision as alleged. Solis v. State , 589 S.W.2d 444, 447 (Tex. Crim. App. 1979). Proof of a single violation is sufficient to support
revocation. Greer v. State , 999 S.W.2d 484, 486 (Tex. App.

— Houston [14th Dist.] 1999, pet.
ref ’ d).
We review the trial court ’ s decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State , 327 S.W .3d 727, 736 (Tex. Crim. App. 2010). The trial
court does not abuse its discretion unless its decision to admit or exclude the evidence lies

o utside the zone of reasonable disagreement. See id

. Applicable Law
The Texas Code of Criminal Procedure author izes a certificate of analysis and chain of custody affidavit to establish the requisite chain of custody and laboratory analysis results of phys ical evidence without the necessity of the analyst ’s personal appear ance in court to
authenticate the evidence as a predicate to its admissibility

. See T EX

. C ODE C RIM

. P RO C

. A NN

. art s . 38.41 §1 (certificate of analysis), 38.42 §1 (chain of custody affidav it ) (West 2018 )

. However, these mechanisms do not limit the right of a party to summon a witness or to introdu ce admissible evidence relevant to the chain of custody and subsequent results of the analysis. See
id. art s . 38.41 §2 (certificate of analysis) , 38.42 §2 (chain of custody affidavit)

.4 Rule 901 provides that the r equirement of authentication or identifica tion as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the p roponent claims. T EX

. R. E VID

. 901(a). Authentication can be

accomp lished by testimony from a witness with kn owledge that an item is what it is claimed to
be. Id. 901(b)(1). The authentication requirement for admissibility of physical evidence is met

o nce the State has shown the beginning and the end of the chain of custody, particularly when
the chain ends at a laboratory. See Martinez v. State , 186 S.W.3d 59, 62 (Tex. App.

— Houston [1st Dist.] 2005, pet. ref ’ d). Absent evidence of tampering or other fraud, problems in the chain of custody do not affect the admissibility of the evidence. See Druery v. State , 225 S.W.3d 491, 503 (Tex. Crim. App. 2007). Similarly, “because the chain

- of

- custody requirement is not intended to be stringently appl ied, if t he trial court is satisfied that the evidence is what the proponent claims, any purported gaps or theoretical b reaches in the chain of custody go to the weight of the evidence, not its admissibility.” LopezGamez v. State , 622 S.W.3d 445, 458 (Tex

. App.

— Fo rt Worth 2020, pet. ref ’ d)

. Chain of custody links may be proved with circumstantial
evidence. Cain v. State , 501 S.W.3d 172, 175 (Tex. App.

— Texarkana 2016, no pet.). Finally,

t he State need not necessarily admit the specimen itself to prove the results

. See Lake v. State , 577 S.W.2d 245, 246 (Tex. Crim. App. [Panel Op.] 1979)

. Discussion Appellant argues in his first issue that the State must offer the actual lab results and documentation proving the chain of custody , and that te stimony establishing the results of the urinalysis and chain of custody is insufficient in and of itself

. Appellant also contends i n his
second issue that the evidence is insufficient to establish the chain of custody , that he used marijuana, and that he diluted the urine sam ple to justify the trial court’s adjudicating him guilty and revoking his community supervision. Appellant di d not object to the State’s chain of custody evidence or otherwise timely complain to the trial court that the State alleged ly failed to present the requisite evidence establishing a proper chain of custody of the urinalysis specimen. Instead, Appellant’s counsel proclaimed for the first time in his closing argument that the State failed to provide a sufficient
chain of custod y without providing a ny specific information as to how the State failed in this regard. Therefore, Appellant has not preserved this issue for our review. See Stark v. State , No.
12

- 04

- 00311

- CR, 2005 WL 2046425, at *2 (Tex. App.

— Tyler Aug. 24, 2005, no pe t.) (mem.5 op., not de signated for publication) (holding defendant waived issue when he did not timely object to State’s alleged fail ure to establish chain of custody) (citing T EX

. R. A PP

. P. 33.1; Aguilar v. State , 26 S.W.3d 901, 905

– 06 (Tex. Crim. App. 2000)). Even if Appell ant had preserved the issue , we conclude the evidence is sufficient t o satisfy the chain of custody requirement

. Contrary to Appellant’s contention, the State need not necessarily provide the lab results in documentary form by such meth od as the certifica te of analysis and chain of custody affid avit. In other words, while those are available methods, they

are not necessary, and the State may establish the results and chain of custody through testimony of relevant witnesses, suc h as the community supervisi on officer administering the test, the community supervision supervisor, and the laboratory analyst performing the analysis. See T EX

. C ODE C RIM

. P RO C

. A NN

. arts. 38.41 §§1

- 2 (certificate of analysis), 38.42 §§1

- 2 (chain of custo dy affidavit) ; Lake , 577 S. W.2d at 246

. At the adjudication hearing, Smith County Community Supervision Officer Halie Melo t testified th at she wa s Appellant’s community supervision officer, he r e port ed directly to her, and
that she is the custodian of record s for all probationers and their records at th e relevant district

court. Officer Melot also testified that when Appellant reported fo r community supervision , Smith County Community Supervision Offic er Edwin Gonzalez administered Appellant a drug

test , which was positive for mar ijuana. Officer Melot explained that the sample itself was not the “correct color,” and that it was very clear , indicating to her that it might contain dilutants or altering s ubstances. Officer Gonzalez testified that he remembered Appellant tested posit ive,
and there were “ faint lines ” in it. He referred the result to his supervisor , who determined that
the sam ple should be sent to the lab for further testing.
Patricia Pizz o, Director of Toxicology at Alere Toxicology Services , then testified that
she tested the same sample , which confirm ed the presence of marijuana

. She explained that she
was the custodian of records , that her lab received the sample from a bonded courier, the exterior package was opened and inspected for damage, and that she confirme d the package was in fact
sealed. She further explained that the interior bag containing the sample was also s ealed and that the pac kage contained a chain of custody document. She testified that she inspected the actual sample container and ensured that the sample wa s sealed and that the recorded information on the container matched the chain of custody form. Sh e testified that there was no violation of protocol, that the chain of custody documents were “ in order, ” and the sample was suitable for6 testing

. This evidence satisfies the chain of custody requirement. See Lake , 577 S.W.2d at 246 (holding officer’s te stimony who made arres t and seizure, along with testimony from chemist who made the analysis, was sufficient to establish chain of custody)

. Pizz o then described the testing procedure and concluded that the sample was positive for marijuana , specifically 1 6 nanograms of marijuana per milligram of creatinine

. She also testified that the sample was diluted because it contained creatinine levels of 9 .1 milligrams per deciliter , and an average male donor should be approximately 190 milligrams per deciliter. P izzo
concluded that the sample was diluted “about twentyfold,” which is “extremely significant

. ”
Pizzo testified that a person such as Appellant would have to drink approximately three liters of
water in thirty minutes for such a result , which could cause a severe e lectrolyte imbalance resulting in serious health issues and possibly even death

. She also stated that exogenous water
could have been added directly to the sample itself. Finally, Pizzo testified that she engages in a “normalization” proce ss to factor in the amount of water consumed

. A fter conducting that process, the result showed that Appellant had approximately 175 nanograms of mar ijuana per milligram of creatinine, resulting in a positive test , which was much more than the already posi tive test of 16 nanograms of marijuana per milligram of creatinine in the un
- normalized sample

. Appellant testified that he was initially unabl e to provide a sample, so he followed
instructions , wait ed in the lobby , and drank water until he could urinate , which was approximately 30 to 45 minutes later. He explained that he drank a substantial amount of water during that time. He claimed that th e am ount of water he consumed to force himself to urinate
resulted in th e diluted sample. He denied consuming any illicit substances. After Officer
Gonzalez told Appellant that he tested positive, Appellant claimed that he asked to provide another sample , a request that went unfulfilled. He also testified that the sample li d fell on the bathroom floor, which he theorized could contribute to the dilution

. Later in his testimony, he posited that the sample might have resulted in a positive test due to oth er f luid on the floor he thought could be tainted urine from another per son when he dropped the lid

. Appellant initially
testified that he had never used marijuana, but admitted that declaration was untrue, stating that his last use was three to four year s pr ior to the hearing. He further admitted that he tested positive for methamphetamine in a separate pretrial urinalysis prior to being placed on deferred7 adjudication community supervision. He denied using methamphetamine, alleging that there
were defe cts in the administration of that test as well.
Officer Gonzalez did no t recall Appellant stating that the spe cimen lid container fell on
the floor or request ing a second test. Officer Gonzalez testified that he would have noted in his records Appellant’ s re quest for a second test, but that such a notation was absent, which indicated to him that Appellant did not request another test. The officer stated that if the cup d id not seal properly, then he would have administer ed a second drug test. Officer Go nzal ez did recall that Appellant “pressed hard” on the seal, ripping it, so the officer applied a backup seal,
which he noted in the record. Because a revocation hearing is an administrative, and not a formal, criminal proceeding, the State need only prove its allegations by a preponderance of the evidence and not beyond a

rea sonable doubt. Cobb v. State , 851 S.W. 2d 871, 873 (Tex. Crim. App. 1993). T he trial court, as finder of fact, was free to resolve the issues before it in favor of believing the testi mony of the
State ’ s witnesses and disbelieving Appellant

. See Taylor v. State , 604 S.W.2d 175, 179 (Tex.
Crim. App. [Panel Op.] 1980) (holding that i n a hearing on a motion to revoke community supervision, the trial court is the sole trier of fact, and th e ju dge of the credibility of the witnesses and the weight to b e given their testimony ). Thus, reviewing the r ecord in the light most
favorable to the trial court ’ s decision , the State satisfied its burden to prove by a preponderance
of the evidence the a lleg ations in its motion to adjudicate Appellant’s guilt

. S ee Tamez v. State , No. 13

- 03

- 207

- CR, 2004 WL 547440 1, at *1 (Tex. App.

— Corpus Christi June 24, 2004, no pet.) (op., not designated for publication) (holding testimony of probation officer who took ini tial positive drug screening of defendant on community supe rvision, coupled with testimony from lab analyst who tested defendant’s urinalysis, sufficiently proved chain of custody and result warranting a finding that defendant violated his community su perv ision justifying its revocation). Therefore, we cannot conc lude t hat the trial court abused its discretion by finding at least one of the allegations against Appellant to be true and in subsequently adjudicating his guilt and revoking his community sup ervi sion. See Flournoy v. State , 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979) (noting that the trial court ’ s authority to revoke is “substantially absolute”)

. Appellant’s first and second issues are overruled.8 D ISPOSITION Having overruled App ella nt’s first and second issues, the trial court ’s ju dgment adjudicating him guilty and revoking his community supervision is affirmed

.

G REG N EELEY Justice

Opinion delivered July 7, 2021. Panel consisted of Worthen, C.J., Hoyle, J., an d Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DI STRICT OF TEXAS

JUDGMENT

JULY 7 , 2021

NO. 12

- 20

- 00015

- CR

JOSUE TALAVERA , Appellant V. THE STATE OF TEXAS , Appellee

A ppea l from the 7 th District Court
of Smith County, Texas (Tr.Ct.No. 114

- 1342

- 17 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the jud gmen t. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt below be in all things affirmed , and that this decisi on be certified to the court below
for observance. Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.