NO. 07-09-00295-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 15, 2011

HERBERT FRANKLIN GARZA, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 100TH DISTRICT CO URT OF CHILDRESS COUNTY; NO. 5192; HONORABLE STUART MESSER, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION Presenting ten points of e rror, appellant Herbert Frank lin Garza appeals from his conviction by jury of the o ffense of delivery of a controll ed substance to a child and the resulting sentence of sixty-five years of imprisonment in the Institutional Division of the Texas Department of Crimi nal Justice. We affirm.2 Background
Appellant was indicted for delivery of a controlled substance, methamphetamine, to Q.M., a minor. 1 The indictment included two enha ncement paragraphs setting forth appellant’s two previous felony convictions. 2

Evidence showed that Q.M ., then fifteen years old, he lped appellant with some work at an address in Childress, Texas. Q.M ., who is related to appellant, testified he expected to be paid in cash for his wo rk, but appellant instead paid him with methamphetamine. Q.M. told the jury he had used methamphetamine in the past so he knew what appellant gave him. He said he smoked the drug with appellant and another individual. A few hours later, Q.M. went to the home of Dustin Dann.
Q.M.’s mother called police after she found Q.M. coming out of Dann’s house. She saw Q.M.’s eyes were very “low,” he was sweating profusely, and his chin was moving back and forth erratically. She knew Q.M. was “real” high, so she called an ambulance and police. Q.M. told his mo ther he was high because he had been smoking “ice.” Over objection, the mother further testified appella nt later told her he gave the methamphetamine to Q.M.
The officer who responded to the call testified Q.M.’s mother was “frantic, appeared to be scared, and co ncerned about her son.” 3 Asked to describe Q.M.’s

1 See Tex. Health & Safety Code Ann. § 481.122 (West 2003).

2 Appellant plead “not tr ue” to each of the two enhancement paragraphs. After hearing punishment stage evidence, the jury f ound the allegations in each to be true. Those findings are not challenged on appeal.3 behavior, he said Q.M. “was sitting on a co uch with his head hung, having a hard time keeping his eyes open. His jaw was moving back and forth erratically. He was very incoherent. Almost on the verge of passing out.” Concluding Q.M. showed signs of a possible overdose, the officer called emergen cy medical services. Over appellant’s objections, the officer testified Q.M.’s mot her told him Q.M. was “overdosing” on methamphetamine, and testif ied Q.M. told him he had smoked a “30 bag” of methamphetamine. 4
Q.M. was transported to the hospital. A physician testified without objection Q.M.’s mother told him Q.M. was there because he had smoked methamphetamine. Q.M.’s medical files were admitted into evi dence. The hospital lab results indicated Q.M.’s urine tested positive for “cannabinoids and opiates.” The doctor testified that was a mistake and should have read “cannabi noids and amphetamines.” Because of the positive drug finding, a sample of the ur ine also was sent to a Dallas commercial laboratory. That report confirmed Q.M.’s ur ine was positive for methamphetamine and marijuana.

3 During an earlier hearing outside the ju ry’s presence, the officer described Q.M.’s mother’s demeanor as “very distraugh t,” “seemed . . . really worried about her son,” “shaking, trembling, just scared.”

4 The officer testified a “30 bag” was approximately .5 grams of methamphetamine.4 Analysis Sufficiency of the Evidence
In appellant’s first, second, third and four th points of error, he contends the only evidence that showed the substance was me thamphetamine was the testimony of Q.M. According to appellant, the testimony is contr adictory in nature and provides conflicting times and events. Appellant asserts Q.M.’s te stimony is legally and factually insufficient to prove appellant delivered me thamphetamine to Q.M.

As an initial consid eration, we observ e that appellant's appea l contends that the evidence is both legally and factually insuffi cient. Appellant's brief was prepared and filed before the Texas Court of Crim inal Appeals issued its opinion in Brooks v. State , 323 S.W.3d 893 (Tex.Crim.App. 2010), wherei n the court held that there is no distinction between a claim of le gal, as opposed to factual, insufficiency of the evidence. Further, the court expressly overruled Clewis v. State , 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported applicati on to factual sufficiency questions. Id. We will review appellant's claims of evidentiary sufficiency under the standard of re view set forth in Jackson v. Virginia

. 5 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

5 The previously-applied factual sufficiency standard considers whether the evidence supporting guilt, though legally sufficien t, is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s verdict is against the great weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.A pp. 2006). Under that standar d, the ultimate question is whether, considering all the evidence in a neutral light, the ju ry was rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we applied such a standard of re view of the evidence, we could not sustain appellant’s sufficiency contentions. From our review of the entire record, the finding of appellant’s5 In assessing the sufficiency of the evidence, we review all the evidence, both proper and improper, in the light most favorabl e to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Ross v. State , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). When reviewi ng all of the evidence under the Jackson standard of review, the ultimate question is whethe r the jury's finding of guilt was a rational finding. See Brooks, 323 S.W.3d at 906-07 (discussing Judge Cochran's dissent in Watson v. State , 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006), as outlining the proper application of a single evidentiary standard of review). Under the Jackson standard, it is the jury’s role to reconcile conflicts, contra dictions, and inconsist encies in the evidence, and to judge the credibility of witnesses. Brooks, 323 S.W.3d at 900.
A person commits an offense if the per son knowingly delivers a controlled substance . . . to a . . . ch ild." Tex. Health & Safety Code Ann. § 481.122 (West 2003). Not disputing that Q.M. was a child at t he time of the offense, appellant argues there is no evidence to show he deliver ed methamphetamine to Q.M. We disagree. Although Q.M.’s testimony may not have been free from inconsis tencies, it was the role of the jury to reconcile any inconsis tencies, conflicts or contradictions. Brooks, 323 S.W.3d at 900. Q.M. testified appellant gave him methamphet amine and smoked it with him. He told his mother and the officer he had used methamphetamine. Appellant’s mother testified appellant told her he gav e the methamphetamine to Q.M. Lab tests confirmed appellant had ingeste d methamphetamine. Viewed in the proper light, we guilt was neither clearly wrong and manifest ly unjust nor against t he great weight and preponderance of the evidence.6 conclude the evidence allowed a rational trier of fact to find, beyon d a reasonable doubt, appellant knowingly delivered methamphetamine to Q.M.
The evidence is sufficient to support the verdict. We overrule appellant’s first, second, third and fourth issues. Admission of Hearsay Statements
In appellant’s fifth and sixth points of error, he challenges the admission of hearsay statements. He first complains of the testimony by the officer of statements made to him by Q.M.’s mother when he res ponded to the call concerning Q.M. She told the officer she thought her son had overdosed on methamphetamine.
We review a trial judge's decision to admit or exclude evi dence under an abuse of discretion standard. Oprean v. State , 201 S.W.3d 724, 726 (Tex .Crim.App. 2006); Janecka v. State , 937 S.W.2d 456, 468 (Tex .Crim.App. 1996). On ly if the trial judge's decision to admit evidence was outside the zone of reas onable disagreem ent will we overrule the trial court's ruling. Montgomery v. State, 810 S.W.3d 372, 378 (Tex.Crim.App. 1991) (op on reh’g). The State argues the mother ’s statement was admissibl e as an excited utterance under Rule of Evidence 803( 2), and we agree. Tex. R. Evid. 803(2). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). To determine whether a statement is an excited utterance, trial courts should determine "whether the declarant wa s still dominated by the emotions,7 excitement, fear, or pain of the event or c ondition" when the statement is made. Factors that the trial court may consider include t he length of time between the occurrence and the statement, the nature of t he declarant, whether the stat ement is made in response to a question, and whether the statement is self-serving. Apolinar v. State, 155 S.W.3d 184, 190 (Tex.Crim.App. 2005).

The court heard the officer describe Q.M.’s mo ther as “frantic,” “very distraught,” “scared,” and “concerned about her son” at the time she made the challenged statement. The trial court reasonably could have considered the mother’s statements related to her son’s startling symptoms of drug overdose, and were made while she was under the stress of excitement caused by her observation of his symptoms. They were statements made by a mother relating to her son’s condition, were not self-serving on her part and do not appear to have been made in response to questions from the officer.
Appellant contends only that these statements did not qualify as excited utterances because of the “significant” amount of time that passed from Q.M.’s mother’s observation of her son to the statements. However, the passage of time, standing alone, is not determinative. See Sadler v. State, No. 10-07-00323-CR, 2009 Tex.App. LEXIS 2962, at * 11-12 (Tex.App.—Waco April 29, 2009, no pet.) (mem. op., not designated for publication) (statement m ade ten or eleven hours after assault admissible as excited utterance); Mayfield v. State , No. 04-02-00635-CR, 2003 Tex.App. LEXIS 7660, at *5-6 (Tex.App.--San Anto nio Sept. 3, 2003, pet. ref'd) (mem. op., not designated for publicat ion) (statement made after ten hours was admissible).8 See also Snellen v. State , 923 S.W.2d 238, 242-43 (Tex .App.--Texarkana 1996, pet. ref'd) (statement made after 12-13 hours admissible). Whil e the exact timeline is not clear here, we see no abus e of discretion in t he trial court’s admitting the statements of Q.M.’s mother concerning his use of metham phetamine, even if the statements were made several hours after Q.M. smoked the subst ance. From the officer’s testimony, it seems clear Q.M. still was displaying symptom s of his ingestion of methamphetamine at the time of the mo ther’s statements.
Appellant makes similar arguments with re gard to Q.M.’s statement to the officer that he smoked a “30 bag” of methamphetamine. Q.M. testified that after smoking methamphetamine and marijuana, 6 he “felt weird in [his] arms and I left. I started walking to my house and my mother picked me up.” He described the “weird” feeling in his arms as “freezing up, going up.” Although he said he had smoked methamphetamine before, he had never before experienced su ch feelings. The trial court reasonably could have determined the sym ptoms of overdose were startling to him, and that the challenged st atement was made under the st ress of his condition. There was nothing self-serving about the st atement in that cont ext and was not in response to an interrogation. The admission of Q.M.’s statement was within the range of reasonable disagreement, and so not an abuse of discretion. Montgomery, 810 S.W.2d at 389. Alternatively, Q.M.’s statement was admissible under Rule 803(24), as a statement against interest. Under that provision, such a st atement is one which was “at

6 He testified he smoked the methamphetam ine and then went to Dann’s house and smoked marijuana for about ten minutes.9 the time of its making...so far tended to subj ect the declarant to civil or criminal liability...that a reasonable person in decla rant’s position would not have made the statement unless believ ing it to be true.” 7 Q.M. admitted to using .5 grams of methamphetamine, ther efore admitting to a criminal offense. See Tex. Health & Safety Code Ann. § 481.115(b)) (West 2010) (providi ng possession of a controlled substance in an amount less than one gram is a state jail felony).
We overrule appellant’s fifth and sixth points of error.
Objection to Witness and Motion for Continuance
Appellant contends in his sev enth point of error that the trial court erred when it overruled his objection and denied his motion for continuance in connection with the presentation of Mark McCain, an employee of the Dallas commercial laboratory, as a witness by the State. Appellant asserts the State failed to properly disclose McCain as a witness, and by failing to do so, operated to surprise appellant and prevented him from seeking his own expert to assist him in cross-exami nation. McCain’s testimony was used to establish Q.M. had me thamphetamine in his urine.
In criminal prosecutions, "[n]otice of the State's witnesses shall be given upon request." Martinez v. State , 867 S.W.2d 30, 39 (Tex.Crim. App. 1993). If the trial court allows a witness who does not appear on the State's witness lis t to testify, then we must determine whether the prosec utor's actions constitut ed bad faith and whether the

7 Additionally, in criminal cases, a statement tending to expose the declarant to criminal liability is not admi ssible unless corroborating circum stances clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803(24). The medical evidence provided corroboration indicating the trustworthine ss of Q.M.’s statement to the officer.10 defense could have reasonab ly anticipated the witness' testimony. Id . In considering whether the State acted in bad faith, reviewing courts hav e considered the following three areas of inquiry: (1) whether the defense shows that t he State intended to deceive; (2) whether the Stat e's notice left the defense adeq uate time to prepare; and (3) whether the State freely prov ided the defense with information ( e.g. , by promptly notifying the defense of new witnesses , by providing updated witness lists, or by maintaining an open file policy). Martinez v. State , 131 S.W.3d 22, 29 (Tex. App.--San Antonio 2003, no pet.).
We review the granting or denial of a motion for continuance under an abuse of discretion standard. Heiselbetz v. State , 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). To show the trial court abused it s discretion in refusing to gr ant a motion for continuance, the defendant must show he was prejudiced by his c ounsel's inadequate preparation time. Id.; Duhamel v. State , 717 S.W.2d 80, 83 (Tex.Crim.App. 1986).
Here, more than a month before trial, the St ate provided notice it intended to rely on documents from the Dallas lab, LabCorp. Nineteen days before trial, the State supplemented its witness list to include an unnamed LabCorp technician. Four days before trial, the State provided to appellant the name of the technician, Mark McCain. At trial, the court found no undue surprise because appellant was timely notified a LabCorp technician would testify, and offered appel lant the opportunity to take time to interview McCain. Prior to McCain’s te stimony, appellant informed the court he had visited with McCain. Appellant also conducted a complete cross-examination of McCain.11 There was no showing or allegation the pros ecutor acted in bad fa ith. As the trial court found, appellant could hav e reasonably anticipated the testimony of McCain. The trial court offered appellant the opportunity to take time to interview McCain before cross examining him and appel lant did so. We see no abuse of discretion in the trial court’s denial of appellant’s motion for continuance or its permitting McCain to testify. We overrule appellant’s seventh point of error.
Rule of Evidence 403 objections
In his last three points of error, appell ant argues the trial court erred in permitting the hearsay testimony of the responding officer and Q.M.’s mother over his objection that the testimony violated Ru le 403 of the Rules of Eviden ce. Two of the challenged statements are the same as were addressed in appellant’s fifth and sixth points of error: the responding officer’s testimony Q.M.’s mo ther told him “she thought her son had overdosed on methamphetamine”; and the offi cer’s testimony Q.M. told him “he had smoked a 30 bag of methamphetamine.” T he trial court overruled both Rule 403 objections, based on the Rule 403 balancing test.

Whether evidence is admissible under Evid ence Rule 403 is a decision within the sound discretion of the trial court. Montgomery, 810 S.W.2d at 386, 389. Rule 403 allows for the exclusion of otherwise relevant evidence when its probat ive value "is substantially outweighed by th e danger of unfair prejudice, c onfusion of the issues, or misleading the jury, or by considerations of undue delay, or needl ess presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that rele vant evidence will be more probative than12 prejudicial. Montgomery , 810 S.W.2d at 389. A trial court must balance (1) the inherent probative force of the proffe red item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to eval uate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 879-880 (Tex.Crim.App. 2007).
Here, the probative value of the evidenc e was not substantia lly outweighed by the danger of unfair prejudice. Te x. R. Evid. 403. “Unfair pr ejudice does not, of course, mean that the evidence injures the opponent's case -- the central point of offering evidence. Rather it refers to an undue te ndency to suggest decision on an improper basis, commonly, though not nece ssarily, an emotional one.” Cohn v. State , 849 S.W.2d 817, 820 (Tex.Crim.App. 1993) (quoting G OODE, ET. AL., TEXAS PRACTICE: TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL, § 403.2 (1988)). The challenged testimony was evidence the victim i dentified the substance he received as methamphetamine. The evidence was str ongly probative of elem ents of the State’s case, and we see little risk it would suggest a decision on an improper basis . The court did not abuse its discretion in its rulings on the Rule 403 objections.
Appellant raises the same contention wit h regard to the mother ’s testimony that appellant told her he did not sell me thamphetamine to Q.M. but he did smoke13 methamphetamine with the boy. This stat ement was apparently made the Sunday before trial at Q.M.’s grandmot her’s house. The statemen t, an admission by appellant, 8 also had strong probative value, both as to appellant’s conduct and hi s culpable mental state. Unquestionably it prej udiced appellant’s defense, but t he trial court was correct to find its prejudice was not unfair.
We overrule appellant’s eighth, ninth and tenth points of error.
Having overruled each of appellant’s c ontentions, we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.

8 See Tex. R. Evid. 801(e)(2) (admission by party opponent).