NO. 07-05-0092-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D DECEMBER 30, 2005

______________________________ SABRINA

E. CYPH ERS, Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2004-404,739; HON. JIM B. DARNELL, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Sabrina E. Cyphers appeals from a judgment convicting her of possessing, with the intent to deliver, more than four but less than 200 grams of cocaine. The conviction was founded upon her open plea o f guilty . The two issues before us concern the trial cou rt’s refusal to allow her to withdraw her plea an d the admission i nto evidence (during the punishmentphase of the trial) of an ex hibit co ntaining seven pl us gramsof cocai ne. We affirm thejudgment.2

Issue One – Withdrawal of Plea Appellant

initial ly conten ds that th e trial court erred in refus ing to al low her to withdrawher plea. The request was made through appe llant’s pro se lett e r to the co urt. Furthermore, the letter

was sent

approximately two months after appellant pled gui lty and the trial court accepted theplea. We overrulethe issu e. A defendant may withdraw his plea of guilty as a matte r of right until judgment is pronounced or the ca se is taken under adviseme nt. Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004). Once the cause is taken under advisement, howeve r, t he decision to permit

the with drawal o f the ple a lies w ithin the trial co urt’s dis cretion. Jackson
v. State, 590 S.W.2d 51 4, 515 (T ex. Crim . App. 19 79); Stone v. State, 951 S.W.2d 205, 206-07 (Tex. App.–Houston [14 th Dist.] 19 97, no pe t.). Furthermore, the requestmust be timely. If belated, then it is no t an abus e of disc retion to deny it. See Jackson v. State, 590 S.W.2d at 515 (s tating th at t he request to withdraw the plea was untimely when it was made six wee ks after th e matter h ad been ta ken unde r advisem ent); Cano v. State, 84 6 S.W.2d 525, 52 7 (Tex. App.–Co rpus Chri sti 1993 , no pet.) (holdin g that therequest to withdrawthe defendant ’s plea ma de almost four weeks after the case was taken under adviseme nt came to o late). Appellant

does not dispute that the cause had been taken under advisement when she sought to withdraw her plea. Consequently, the decision to grant or deny the request lay in the trial court’s discretion. And, given ap pellant’s two-month del ay in ma king the request, t he trial court did not abus e its dis cretion i n denyin g it.
Issue Two – Admissibility of Exh ibit3

Next, appellant

contends

that the trial cou rterred in admitting into evidence, during the punishment phase, State’s Exhibit 1(b). It consisted of over seven grams of cocaine found in a search of appellant’s residence. A ppellant believed the exhibit to be inadmissible because the Statefailed to prove the requisite chain of custody. Furthermore, it allegedly

did so by neglecting to have the officer who acqui red the cocaine at appellant’s home ide ntify it. We overru le the is sue. Texas Rule of Evidenc e 901(a) states tha t the requir ement of authentication or identification “is satisfied by evidence sufficient to support a findi ng that the matter in question is what i ts p roponent claims.” And, thi s can be done thro ugh “testi mony that a matter is what it i s claime d to be.” T EX
. R. E VID
. 901(b)(1 ). The record be fore us i llustrate s that theoffi cer w ho originally found or seized the cocai ne at issuedid not testify or otherwis e authen ticate th e substan ce prior to it s admission into evidence. Nonet heless, the officer who conducted the initial buy from appellant

at her home, who acquired 2. 6 ounc es of the same substance from her, and whose purchaseculmina ted in th e search of the lo cation d id testi fy. Furth ermore, when asked if he recognized both the 2.6 ounces he acquired (State’s Exhibi t 1(a)) as well as the
seven co mprising Exhibi t 1(b), hereplied :

I had packaged the narcotics. It was the cr ac k cocaine that I had pur chased and that was also found later after the search of the res idenc e had been conducte d.1 The Sta te m ista ke nly argues t hat t he off icer said he “r eceive d the crack cocai ne from an office r wh ile at the Ap pellan t’s resid enc e.” Inde ed, h is testim ony wa s tha t he left with o nly the 2.6 ou nc es he pe rso na lly acq uired from app ellant. 4 Then, he stated t hat he forwarded the exhibits “to the DPS l aboratory” for analysis. 1 No
one objected to this testimony; thus, it was admissible for all purp oses. See Poindexter v. State, 153 S.W.3d 402, 406-07 (Tex. Crim. App. 2005). Given this uncontradi cted testim ony, evid ence appears of record sufficient to support a finding that the contents of Exhibit 1(b) wer e wh at its pro ponents c laimed i t to be, i.e. cocaine within the possession of appel lant. Th us, we fi nd no err or in theadmissi on of theexhibi t. Having o verruled each iss ue, we af firm the ju dgment of

the trial court.

Brian Quinn Chief Justice
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