NO. 07-05-0092-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 30, 2005

______________________________

SABRINA E. CYPHERS, 

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 140TH 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 of guilty. The two issues before us concern the trial court’s

refusal to allow her to withdraw her plea and the admission into evidence (during the

punishment phase of the trial) of an exhibit containing seven plus grams of cocaine. We

affirm the judgment.
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Issue One – Withdrawal of Plea

Appellant initially contends that the trial court erred in refusing to allow her to

withdraw her plea. The request was made through appellant’s pro se letter to the court.

Furthermore, the letter was sent approximately two months after appellant pled guilty and

the trial court accepted the plea. We overrule the issue. 

A defendant may withdraw his plea of guilty as a matter of right until judgment is

pronounced or the case is taken under advisement. Mendez v. State, 138 S.W.3d 334,

345 (Tex. Crim. App. 2004). Once the cause is taken under advisement, however, the

decision to permit the withdrawal of the plea lies within the trial court’s discretion. Jackson

v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Stone v. State, 951 S.W.2d 205,

206-07 (Tex. App.–Houston [14th Dist.] 1997, no pet.). Furthermore, the request must be

timely. If belated, then it is not an abuse of discretion to deny it. See Jackson v. State, 590

S.W.2d at 515 (stating that the request to withdraw the plea was untimely when it was

made six weeks after the matter had been taken under advisement); Cano v. State, 846

S.W.2d 525, 527 (Tex. App.–Corpus Christi 1993, no pet.) (holding that the request to

withdraw the defendant’s plea made almost four weeks after the case was taken under

advisement came too 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 appellant’s two-month delay in making the

request, the trial court did not abuse its discretion in denying it.

Issue Two – Admissibility of Exhibit
3

Next, appellant contends that the trial court erred 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. Appellant believed the exhibit to be

inadmissible because the State failed to prove the requisite chain of custody. Furthermore,

it allegedly did so by neglecting to have the officer who acquired the cocaine at appellant’s

home identify it. We overrule the issue. 

Texas Rule of Evidence 901(a) states that the requirement of authentication or

identification “is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” And, this can be done through “testimony that a

matter is what it is claimed to be.” TEX. R. EVID. 901(b)(1). 

The record before us illustrates that the officer who originally found or seized the

cocaine at issue did not testify or otherwise authenticate the substance prior to its

admission into evidence. Nonetheless, the officer who conducted the initial buy from

appellant at her home, who acquired 2.6 ounces of the same substance from her, and

whose purchase culminated in the search of the location did testify. Furthermore, when

asked if he recognized both the 2.6 ounces he acquired (State’s Exhibit 1(a)) as well as the

seven comprising Exhibit 1(b), he replied: 

I had packaged the narcotics. It was the crack cocaine that I had

purchased and that was also found later after the search of the residence

had been conducted. 
1

The State mistakenly argues that the officer said he “received the crack cocaine from an officer while

at the Appellant’s residence.” Indeed, his testimony was that he left with only the 2.6 ounces he personally

acquired from appellant.

4

Then, he stated that he forwarded the exhibits “to the DPS laboratory” for analysis.1 No

one objected to this testimony; thus, it was admissible for all purposes. See Poindexter v.

State, 153 S.W.3d 402, 406-07 (Tex. Crim. App. 2005). Given this uncontradicted

testimony, evidence appears of record sufficient to support a finding that the contents of

Exhibit 1(b) were what its proponents claimed it to be, i.e. cocaine within the possession

of appellant. Thus, we find no error in the admission of the exhibit.

Having overruled each issue, we affirm the judgment of the trial court.

Brian Quinn 

 Chief Justice

 

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