Albert Alexander v. State

• Court: Court of Appeals of Texas
• Decided: July 19, 2007
• Docket: 06-06-00169-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00169-CR

ALBERT ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 76th Judicial District Court

Morris County, Texas

Trial Court No. 9105

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Albert Alexander was convicted in the 76th Judicial District Court of Morris County of two counts of delivery of a controlled substance (cocaine) in an amount less than one gram (count one) and in an amount of one gram or more but less than four grams (count two). Alexander appeals those convictions.

On two occasions a week apart in the late summer of 2004, Alexander sold cocaine to a "cooperating individual," Stephanie McCoy, who was "working off" her own hot check cases by helping law enforcement gather information to prosecute Alexander. Alexander's points of error on appeal allege that:

1) the trial court erred when it denied Alexander's motion for a mistrial, following the State's alleged comment on Alexander's failure to testify at punishment;

2 ) the trial court erred when it denied Alexander's motion for a mistrial, after a State witness violated the motion in limine by mentioning alleged extraneous offenses;

3 ) the evidence is factually insufficient (as to the weight of cocaine) to support conviction on count two;

4) the trial court erred in overruling the objection that the proper predicate was not laid for admission of the crack cocaine from the count two sale; and

5) the trial court erred in allowing testimony regarding Texas Department of Public Safety (DPS) chemist Reuben Rendon's report, evidence which Alexander alleges was hearsay.

After our review of the record and applicable law and having listened to oral arguments from the parties, we affirm the judgment.

Where appropriate, we present the applicable facts as we address each of Alexander's issues.

Relevant to all issues, on August 24, 2004, and on September 1, 2004, cooperating individual McCoy purchased crack cocaine from Alexander on McReynolds Street in Daingerfield. The investigating officer at whose behest McCoy was acting was Lance Cline; the DPS chemist who testified at trial was Chance Cline (who, despite the similarity of names, is not a relative of Lance Cline).

I. Comment on Failure to Testify

Alexander complains that the trial court erred when it overruled Alexander's motion for a mistrial, following a statement by the State which Alexander claimed was a comment on his right not to testify. In the State's closing argument at the punishment phase of the trial, after recommending to the jury that it assess a sentence of twenty years' incarceration (the maximum for the second-degree felony for the one-to-four-gram charge), the State said:

This is not a possession case. This is not a user case, and he's caught with a little bit of marijuana or a little bit of crack in a pipe or a little bit of methamphetamine or a couple of pills. This is a guy who made his living on the streets of Daingerfield selling drugs.

You could drive up in open daylight, him not even know you, him come out to your car, and buy $140.00 worth of cocaine just like that. You saw it for yourself.

He's expressed no remorse in this case. You've seen no remorse.

(Emphasis added.)

Alexander interjected an objection that this argument was a comment regarding Alexander's failure to testify; ⁽¹⁾

the trial court instructed the jury to disregard the State's last comment. Alexander then requested the trial court to declare a mistrial, a request which was denied.

The State's statement was improper because it referred to evidence (remorse) which could only be supplied by the defendant. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). "It is settled law that neither the trial judge nor the prosecution may comment on the defendant's failure to testify, and that any such comment violates the Fifth Amendment privilege against self-incrimination." Cruz v. State, No. PD-0404-05, 2007 Tex. Crim. App. LEXIS 689, at *3 (Tex. Crim. App. June 6, 2007) (citing Griffin v. California, 380 U.S. 609, 614 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); see Tex. Code Crim. Proc. Ann. art. 38.08). Whether this comment by the State amounts to reversible error is another matter. When the trial court sustains an objection to jury argument and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue on appeal becomes whether the trial court abused its discretion in denying the requested mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). As with other matters in which abuse of discretion is the issue, we will uphold the trial court's ruling if it was within the "zone of reasonable disagreement." Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)).

A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake. Here, the trial court sustained the defense objection and granted the requested instruction to disregard. The only adverse ruling--and thus the only occasion for making a mistake--was the trial court's denial of the motion for mistrial. Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.

Hawkins, 135 S.W.3d at 76-77 (footnotes omitted).

The Hawkins court approved the balancing of three factors for this kind of situation: (1) the severity of the misconduct (i.e., its prejudicial effect on the jury), (2) the curative measures which were taken, and (3) the certainty of the punishment which would have been assessed absent the misconduct (i.e., in this case, the likelihood of the same punishment being assessed if the statement had not been made and the instruction to disregard had not been necessary). Id. at 77. ⁽²⁾ While Hawkins involved statements made by the prosecutor regarding parole eligibility, in Archie v. State, the Texas Court of Criminal Appeals used the same analysis where the prosecutor's statement arguably referenced Archie's failure to testify ("You heard no evidence to the contrary as to . . . the second victim. You heard no denial. That was just accepted."). Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007).

A. Prejudice, severity of misconduct

In Hawkins, the Texas Court of Criminal Appeals points out that even a violation of a "mandatory statute" does not, by itself, necessarily warrant a reversal. Hawkins, 135 S.W.3d at 82 (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). Violation of even those to which reference is made as a "mandatory statute" "has no place in our current harmless error scheme." Id. Accordingly, even if the State's argument in the instant case violated Article 38.08, that error alone does not necessarily warrant reversal. Rather, the standard applied by the Texas Court of Criminal Appeals seems to require a determination of whether the violation is an "extreme [case] where the language complained of is manifestly improper, harmful and prejudicial," and possibly where "some new and harmful fact [is] injected into the case." Id. at 81. The Texas Court of Criminal Appeals goes on to say that, "We are not aware of any decision reversing a case solely because the error involved a violation of a 'mandatory' statute without regard to whether the error had any influence upon the jury's decision." Id. at 82.

In the instant case, the State's comment was brief and was not repeated; the brevity of the offending statement and the fact that it was not repeated are factors noted by the Texas Court of Criminal Appeals in Archie which mitigate against reversal. In light of recent Texas Court of Criminal Appeals' cases addressing these situations, we cannot say that the State's comments about Alexander's apparent lack of remorse was an "extreme [case] where the language complained of is manifestly improper, harmful and prejudicial," nor was "some new and harmful fact injected into the case." Id. at 81.

B. Curative Measures

In Hawkins and Archie, the Texas Court of Criminal Appeals next looked to the curative measures taken by the trial courts after the incidents (as in this case, instruction to the juries to disregard). An instruction to disregard normally cures error, except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and where the conduct is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987); Carter v. State, 614 S.W.2d 821 (Tex. Crim. App. [Panel Op.] 1981). When counsel asks for a particular instruction and the trial court accedes to the request, that instruction will in most cases be considered effective to cure the harm from an improper argument. Hawkins, 135 S.W.3d at 84.

Here, the trial court instructed the jury to disregard the State's statement immediately upon Alexander's objection, an objection which followed on the heels of the utterance itself. As this situation is very similar to that in Archie, we find that the trial court's instruction was sufficient to ameliorate any potential harm from the State's argument. ⁽³⁾

C. Certainty of Punishment Assessed

With regard to the improper statement to the jury mentioned above, we now consider the sentence received by Alexander. Here, it is true that Alexander received the maximum sentence for each count (a two-year sentence for the state-jail felony and twenty years for the second-degree felony). This can well be attributed to the other evidence regarding Alexander's history. Evidence was adduced that Alexander was only twenty-five years old at the time of trial, but that he had already amassed an extended "rap sheet." He had a juvenile adjudication for burglary; he had previously entered a guilty plea to the state-jail felony offense of theft of a firearm; he had been placed on community supervision for five years; and he was later again placed on community supervision for a state-jail felony offense of delivery of a controlled substance, but his community supervision had been revoked, resulting in his having been sentenced to incarceration. In addition to his criminal history, the two drug sales happened within one week of each other and Alexander was actively pursuing further illicit drug sales, handing out his business card to McCoy so she could reach him easily for repeat business. In Archie, the court pointed out that while Archie, like Alexander, received the maximum available sentence, the State provided evidence of several previous convictions. In contrast, although most of Archie's convictions were for misdemeanors, Alexander had three felony convictions (including one juvenile adjudication) in addition to the two crimes for which he had just been convicted. Taking into account all of the evidence, we can see no significant likelihood that Alexander would have received a different sentence if the comment had never been made.

After evaluating the situation during Alexander's trial under the framework established by the Texas Court of Criminal Appeals in Archie and Hawkins, we hold that the trial court did not abuse its discretion in denying Alexander's requested mistrial.

The first point of error is overruled.

II. State's Witness Violates Motion in Limine by Disclosure of Extraneous Offenses

Evidence from the State's witnesses made repeated reference to Alexander living in and dealing drugs out of a residence at 421 McReynolds Street in Daingerfield, Texas. Both of the transactions in which McCoy testified she bought crack cocaine from Alexander happened near this house. During his cross-examination questions and also during his case-in-chief, Alexander attempted to establish that he did not live at this address. In this effort, he attempted to show that his driver's license listed an address in Hughes Springs as his residence address. Alexander's mother testified as his only called witness; during her testimony, she related that he lived with her (at least some of the time) and that the address on his driver's license was that of her home in Hughes Springs.

Johnny Phillips, an investigator with the Ark-La-Tex Task Force, assisted the primary investigator, Lance Cline, in working with McCoy on the controlled drug buy from Alexander on August 24, 2004 (the date McCoy purchased a rock of crack cocaine from Alexander with $40.00 of Task Force funds). On cross-examination, Alexander's attorney asked Phillips whether Phillips "believe[d] [Alexander's] address to be 421 McReynolds Street." Phillips replied in the affirmative. The following exchange then occurred:

Q If his driver's license indicates 2305 South 12th in Hughes Springs or if there's testimony that that's where he lived most of the time, do you know whether that's true or not?

A Be false because I've dealt with Mr. Alexander for years, bought dope from him from McReynolds Street on different occasions as well as other locations.

(Emphasis added.) Alexander's objection to the answer as being nonresponsive to the question was sustained. Alexander then requested that the jury be instructed to disregard the witness's statement; that request was granted, and the jury was thus instructed. Alexander then moved that a mistrial be declared; that motion was denied.

Phillips's statement was clearly inadmissible. We find it especially troubling as it was made by a member of law enforcement, and would appear to have been an intentional interjection of an inadmissible statement. Further, Alexander had done all that procedure would permit to prevent such an inadmissible statement by having requested and been granted a motion in limine to exclude any reference to inadmissible extraneous offenses. By our reading of the record, Alexander assiduously avoided opening any doors to such evidence by inadvertent questions which might allow such a thing to occur. The response was clearly unsolicited and was wrongly volunteered, in spite of the motion in limine. A question about whether a witness knows where the defendant lives would certainly not be expected to elicit an answer indicating the defendant's alleged history for dealing in narcotics beyond those instances on trial, especially where the testifying witness is a law enforcement officer, presumably having been given training in testifying in court. In addition, Alexander's indictment originally had four counts: the first two alleged the sales to McCoy, which were included in the jury charge and upon which Alexander was ultimately convicted. The last two counts alleged a third sale to McCoy and a fourth sale to a different person. Only the first two counts, though, were read to the jury (the record is silent as to why the last two counts were not pursued). Because by this point the State had obviously decided to limit itself to proving the allegations in counts one and two, there was no reason for the officer to have made any mention of these extraneous offenses.

However, instructions to juries to disregard statements such as this have been found adequate to cure error, even when witnesses have violated a motion in limine or referenced an extraneous offense. "A prompt instruction to disregard will usually cure any prejudice resulting from improper testimony regarding an extraneous offense, even if given in violation of a motion in limine." Austin v. State, 222 S.W.3d 801 (Tex. App.--Houston [14th Dist.] 2007, pet. filed); Rogers v. State, 200 S.W.3d 233 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd); Martinez v. State, 844 S.W.2d 279, 284 (Tex. App.--San Antonio 1992, pet. ref'd) (extraneous offense in violation of motion in limine); see also Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (State's witness testified to extraneous offenses by defendant; instruction to disregard held sufficient to cure any harm). While the officer's unsolicited statement is troubling, it was brief and isolated. It does not appear so "clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds" that a proper instruction to the jury would not cure it. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). The trial court promptly instructed the jury to disregard, in accord with Alexander's prompt request.

We find that the trial court did not abuse its discretion in denying Alexander's requested mistrial, as the instruction to disregard was sufficient to cure any potential harm.

The second point of error is overruled.

III. Factually Sufficient Evidence to Support Second-Degree Felony Conviction

In his third point of error, Alexander complains the evidence is factually insufficient to support a conviction for count two of the indictment, which alleged delivery of one gram or more of cocaine but less than four grams. Count two involved the drug transaction of September 1, 2004. Alexander claims that, at most, the evidence supported a finding the drugs involved in that buy weighed .95 grams, and therefore, he is at most guilty of a state-jail offense for count two. ⁽⁴⁾

For a factual sufficiency review, we look at all the evidence in a neutral light, and consider whether the evidence is so weak that the jury's determination was clearly wrong and manifestly unjust, or that a different result would have been appropriate. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006).

After McCoy made the second drug buy, on September 1, she gave the drugs to Lance Cline. Cline weighed them at his office on a set of digital scales; the cocaine showed to be three grams. He agreed that these scales were not as accurate as the measuring devices at the DPS crime laboratory, and these scales were not "calibrated . . . or anything." Some time in December 2004, Rendon, at the time a DPS chemist, performed his chemical analysis and weighed the cocaine at 1.69 grams. Rendon subsequently transferred to a laboratory in Corpus Christi and received a promotion. Rendon's successor at the DPS laboratory, Chance Cline, retested the cocaine in February 2006; it weighed .95 grams. Obviously, if the last measure were used, Alexander would have been guilty only of a state-jail felony.

Both Lance Cline and Chance Cline testified offering explanations for the change in weight. Lance Cline testified that when crack cocaine is manufactured, it contains significant amounts of moisture, which increases its weight. Over time, the cocaine dries out and it takes the familiar rock shape. Lance Cline explained that many things can affect this kind of weight change. He explained that the quality or purity of the drug will affect whether any adulterants present in the tested drugs attract water. Chance Cline testified that based on his training, education, and experience, the weight obtained by Rendon would differ from that obtained when Chance Cline tested the drugs fourteen months later. However, he also said that he believed the drugs would have weighed more than one gram when Rendon tested the drugs in December 2004 (three months after the transaction). Chance Cline also acknowledged that his analysis was done after Rendon had performed his analysis and had used at least some portion of the drugs to do that analysis.

When evidence both supports and conflicts with the verdict, we must assume that the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Conflicts or inconsistencies in the evidence do not render the evidence factually insufficient. Dornbusch v. State, 156 S.W.3d 859, 872 (Tex. App.--Corpus Christi 2005, pet. ref'd) The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

The only evidence that does not support a finding of a sufficient amount of cocaine for a second-degree felony was Chance Cline's analysis, putting the weight at less than one gram. There was, however, testimony offering an explanation for the different weights obtained by three different witnesses. Examining all the evidence in a neutral light, we cannot say the evidence is so weak that the jury's determination was clearly wrong and manifestly unjust. Nor can it be said that a different result would have been appropriate. Watson, 204 S.W.3d at 414-15, 417. Accordingly, we hold the evidence of the weight of the cocaine purchased in the charge alleged in count two is factually sufficient to support the jury's verdict. We overrule Alexander's third point of error.

IV. Admission of Evidence Over Alexander's Objection

Alexander also complains that the State failed to establish the proper chain of custody for the drugs involved in the September 1, 2004, transaction, and takes the position that the trial court erred in admitting said narcotics into evidence over Alexander's objection.

Where the State shows the beginning and the end of the chain of custody, any gaps in the chain of custody go to the weight of the evidence rather than to its admissibility, particularly where the chain of custody goes inside the laboratory. Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981); Beck v. State, 651 S.W.2d 827, 829 (Tex. App.--Houston [1st Dist.] 1983, no pet.). We use an abuse of discretion standard when reviewing the trial court's decision to admit evidence. Shuffield v. State, 189 S.W.3d 782, 792 (Tex. Crim. App. 2006); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Burden, 55 S.W.3d at 615. The trial court does not abuse its discretion in admitting evidence where it believes that a reasonable juror could find that the evidence has been authenticated or identified. Schneider v. State, 951 S.W.2d 856, 863 (Tex. App.--Texarkana 1997, pet. ref'd). If the article of evidence has no distinctive features or is fungible, the item must be proven by showing a chain of custody, typically from the scene of the crime to the courtroom. Hartsfield v. State, 200 S.W.3d 813, 818 (Tex. App.--Texarkana 2006, pet. ref'd). Authentication of such an article may be accomplished by marking the item and identifying it at trial as the same, so long as there is no evidence of tampering or alteration. See Garcia v. State, 537 S.W.2d 930, 934 (Tex. Crim. App. 1976). The chain of custody is conclusively proven if the officer is able to identify that he seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989) (citing Elliott v. State, 450 S.W.2d 863, 864 (Tex. Crim. App. 1970)).

In the case of the cocaine from the September 1 buy (State's Exhibits 2 and 2-A), investigator Lance Cline testified that after McCoy purchased the cocaine, she delivered it to him and then he marked the envelope and mailed it to the DPS laboratory. However, Lance Cline made a mistake in his labeling, which we will discuss below.

This Court recently held that a chain of custody was proper where there was evidence the defendant gave the drugs to an officer, who in turn gave the drugs to another officer who put the drugs in an evidence locker, a DPS officer took the drugs to the Tyler crime laboratory, and a supervising forensic scientist later delivered the drugs to court. Ingram v. State, 213 S.W.3d 515, 520-21 (Tex. App.--Texarkana 2007, no pet.). The instant case is very similar: McCoy said she got the cocaine from Alexander; she gave it to Lance Cline, who placed it into an envelope containing his return address and sent it by certified United States Postal Service mail addressed to the DPS laboratory; the DPS laboratory received the envelope containing those markings and the certified mail number with the substance enclosed, and marked it with a unique identifier. These identifying marks stayed with it during the processing in the laboratory, and it was returned by a laboratory chemist to Lance Cline in open court.

Alexander's argument is centered on investigator Lance Cline's mix-up in labeling the items he put in the envelope to ship to the crime laboratory. Lance Cline said that it was his practice to include a submission form in the envelope with the drugs which he sends to the crime laboratory. On the September 1 buy, he originally sent one of these forms, which referred to the drugs as his "Exhibit 3." The laboratory tested this "Exhibit 3." However, on a copy of the form he had sent with the drugs, he subsequently realized he had four exhibits (not three) from that buy: the video, the compact disc recording of the buy, the drugs, and a business card Alexander had given McCoy with his contact information. So Lance Cline changed the exhibit number for the drugs, now referring to them as Exhibit 4, rather than Exhibit 3. Lance Cline said he thought he probably called the laboratory office to change the number, but there was no evidence that the change was made. Chance Cline said his file showed no evidence that anyone called the laboratory to change the exhibit number, but if anyone had called, office procedures would dictate that such a note would be present in the laboratory's file. Further complicating the matter, when Lance Cline opened the sealed envelope from the DPS crime laboratory in open court, his usual submission form was not in the envelope as he had expected it would be. This surprised Lance Cline; and he thought it unusual that the DPS laboratory had not returned the form to the envelope. He did say he could identify the contents by use of the certified mail label on the envelope as being the same ones which were submitted by him. Additionally, upon this Court's examination of the exhibits, the envelope addressed to the DPS crime laboratory and the smaller package containing the cocaine both bore several corresponding numbers, notations, and initials.

It is within the trial court's discretion to determine the sufficiency of a predicate. Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984). Absent an abuse of discretion, we will not disturb the trial court's finding. Id. When the State shows the beginning and the ending of the chain of custody, any gaps in between go to the weight, rather than the admissibility, of the evidence, particularly if the chain of custody from seizure to the laboratory is shown. Id.

Alexander also argues that the record does not show that McCoy identified the drugs admitted at trial as those which she bought from Alexander on September 1. However, he offers no authority to suggest that such evidence is required in order to be admissible. Where the proffered evidence is a fungible item, such as crack cocaine, a chain of custody from the scene of the crime to the courtroom is usually required. Hartsfield, 200 S.W.3d at 818. All of the cases we have reviewed addressing challenges to chains of custody commence with the officer taking possession of the drug either from the defendant or from the cooperating buyer. See, e.g., Young v. State, 183 S.W.3d 699 (Tex. App.--Tyler 2005, pet. ref'd); Foster v. State, 101 S.W.3d 490 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

We have examined State's Exhibit 2 (the envelope in which Lance Cline sent the September 1 cocaine to the DPS laboratory) and State's Exhibit 2-A (the cocaine, contained in a plastic bag). Both of these have several markings of corresponding laboratory identification numbers, and each bears the initials RAR and the date "12/17/04." Chance Cline testified that according to Rendon's report, Rendon tested the drugs on or about December 20, 2004. We find the trial court did not abuse its discretion in admitting State's Exhibit 2-A.

We deny this point of error.

V. Testimony that Another DPS Chemist Initially Weighed and Tested the Cocaine

Alexander's fifth point of error complains the trial court erred in admitting testimony that Rendon, Chance Cline's predecessor at the DPS laboratory, had weighed the cocaine before Chance Cline did. Rendon had been the chemist who first tested and weighed the cocaine from both drug sales. Alexander's appellate complaint is that testimony about Rendon's report on the September 1 drug buy lacked the proper predicate for admission as a business records exception. Therefore, argues Alexander, Rendon's report was hearsay and the trial court erred in allowing its admission.

The State urges (and it is correct) that numerous references were made to Rendon's report without Alexander having objected. Investigator Lance Cline made at least three references to the first report from the DPS laboratory which had listed a weight of 1.69 grams. Chemist Chance Cline made numerous references to Rendon's report to which Alexander did not object.

Additionally, although Alexander claims the State offered no adequate predicate for admission of testimony about Rendon's report (the report itself was not offered into evidence), late in the State's questioning, on re-direct examination, the State asked Chance Cline if, based on the "business records that you have that have been regularly kept by your department in the regular course of their business that were made by someone at or near the time that the events were recorded in those records" if such records indicated Rendon tested the drugs from the September 1 buy, and if such drugs weighed 1.69 grams. Chance Cline answered in the affirmative. Without having to determine whether the business records exception to the hearsay rule predicate is even necessary, so long as the document itself was not offered into evidence, we find that this testimony served as a sufficient predicate for admission of evidence regarding Rendon's test.

Finally, we point out that a testifying expert who did not analyze a substance may testify to his opinion about the substance and, in doing so, may rely upon the report of the chemist (as an expert) who performed the analysis so long as the report is not offered into evidence. Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000). Here, while Chance Cline did in fact test the cocaine in question, no report was offered into evidence. It was proper for him to base his opinion on Rendon's test results.

We affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: June 21, 2007

Date Decided: July 19, 2007

Do Not Publish

1.

This would be a violation of Article 38.08 of the Texas Code of Criminal Procedure, which states, "Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause." Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005) (emphasis added).

2. The court originally enunciated this analysis in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

3. However, the curative instruction by the trial court in Archie was much more obscure than the one made by this trial court. In Archie, the curative instruction was simply: "Instruct the jury that they will--I sustain the objection and instruct the jury they will follow the Court's instructions"--the jury charge having been a document which contained nineteen paragraphs--without specificity regarding which instruction in the charge applied to the comment. Archie, 221 S.W.3d 695.

4. See Tex. Health & Safety Code Ann. § 481.112(b), (c) (Vernon 2003).

, the period in which she continued to see the doctor for other unrelated problems. Id. We held there was a fact question concerning whether, by words or conduct, either party terminated the treatment of the patient's breast condition. Id. at 335.

On appeal, the Texas Supreme Court affirmed our judgment, but not our reasoning. Chambers, 883 S.W.2d at 157. The court focused on the date the breach or tort occurred. The court held the evidence, when viewed in the light most favorable to the patient, showed the cause of action accrued January 19, 1988, the last date on which the doctor could have but failed to provide appropriate follow-up examinations after his earlier tests on the patient's breast. Id. at 158. Significantly, the court held this Court erred in concluding there was a fact question because "determining when treatment has concluded . . . simply amounts to deciding when a plaintiff's cause of action accrues, [a] question . . . of law and not fact." Id. at 159.

It is difficult to reconcile the Texas Supreme Court's holdings in Delgado and Chambers, and its statement in Murray that "when . . . there is no outright denial of a claim, the exact date of accrual of a cause of action becomes more difficult to ascertain and should be a question of fact to be determined on a case-by-case basis." Murray, 800 S.W.2d at 828 n.2. After considering these cases, however, we conclude the summary judgment proof does not establish Williams' and Agnor's entitlement to summary judgment on Tri-State Exploration's and Tri-State Well's negligence claims based on the running of the statute of limitations.

First, the summary judgment proof shows that, at best, Southern County did not deny Tri-State Well a complete defense until May 25, 1997, the day when Tri-State Exploration and Tri-State Well agreed to Southern County's offer to pay half their attorney's fees. Second, though Southern County indicated by July 24, 1995, it was denying a defense to Tri-State Exploration, the summary judgment proof indicates that position was subject to negotiation, as Southern County eventually agreed to pay one half of Tri-State Exploration's attorney's fees, which would have included any attorney's fees Tri-State Exploration had already expended in defense of the Rice Appellants' negligence suit.

Conclusion

The trial court rendered judgment in the Rice Appellants' negligence suit July 11, 1997. This was the date on which Appellants had sufficient facts available to seek a judicial remedy against Williams and Agnor. Appellants filed suit against Williams and Agnor June 3, 1999, within the two-year statute of limitations for negligence and the four-year statutes of limitations for breach of fiduciary duty and breach of contract. Therefore, summary judgment was inappropriate on their claims.

We need not consider Appellants' contentions that the trial court abused its discretion in overruling their motion for a continuance and their objections to certain statements contained in Williams and Agnor's summary judgment proof.

We reverse the trial court's judgment and remand this case to that court for further proceedings.

Donald R. Ross

Date Submitted: May 16, 2002

Date Decided: September 13, 2002

Publish

1. Appellants later nonsuited Southern County.

2. Compare McGuire v. Kelley, 41 S.W.3d 679, 682 (Tex. App.-Texarkana 2001, no pet.) (four years when combined with fraud cause of action); Chandler v. Chandler, 991 S.W.2d 367, 394 (Tex. App.-El Paso 1999, pet. denied) (four years); In re Estate of Herring, 970 S.W.2d 583, 587 (Tex. App.-Corpus Christi 1998, no pet.) (four years); Rowe v. Rowe, 887 S.W.2d 191, 201 (Tex. App.-Fort Worth 1994, writ denied) (four years); Spangler v. Jones, 797 S.W.2d 125, 132 (Tex. App.-Dallas 1990, writ denied), with Maxson v. Travis County Rent Account, 21 S.W.3d 311, 319 (Tex. App.-Austin 1999, pet. dism'd by agr.) (two years); Hendricks v. Thornton, 973 S.W.2d 348, 364 (Tex. App.-Beaumont 1998, pet. denied) (two years); Farias v. Laredo Nat'l Bank, 985 S.W.2d 465, 471 (Tex. App.-San Antonio 1997, no pet.) (two years); Dickson Constr., Inc. v. Fid. & Deposit Co., 960 S.W.2d 845, 849 (Tex. App.-Texarkana 1997, no pet.) (two years); Smith v. Little, 903 S.W.2d 780, 786 (Tex. App.-Dallas 1995), aff'd in part & rev'd in part on other grounds, 943 S.W.2d 414 (Tex. 1997) (two years); Smith v. Chapman, 897 S.W.2d 399, 402 (Tex. App.-Eastland 1995, no writ) (two years); Redman Indus., Inc. v. Couch, 613 S.W.2d 787, 789 (Tex. Civ. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.) (two years).

3. An examination of Williams v. Khalaf, 802 S.W.2d 651 (Tex. 1990), does not buttress the Legislature's apparent conclusion. In Williams, the Texas Supreme Court was not confronted with the issue of the appropriate limitations period for breach of fiduciary duty claims, but only with the question of the appropriate limitations period for fraud claims. At that time, there was no statute of limitations directly applying to fraud claims, just as there was no statute of limitations directly applying to breach of fiduciary duty claims before 1999. See id. at 654.

Citing Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40, 41-42 (1909), the court characterized a fraud claim as an action on a debt not evidenced by a writing, which at the time Gordon was written was governed by a two-year statute of limitations, but at the time Williams was written was governed by a four-year statute of limitations. Williams, 802 S.W.2d at 654, 657. Therefore, the court held a four-year statute of limitations applied to fraud claims. Id. at 657.

Those courts before Williams that held breach of fiduciary duty claims were governed by a two-year statute of limitations did so on the theory that those claims are actions in tort rather than actions for a debt not evidenced by a writing. See Black v. Wills, 758 S.W.2d 809, 814 (Tex. App.-Dallas 1988, no writ); Redman Indus., Inc. v. Couch, 613 S.W.2d 787, 789 (Tex. Civ. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.). Arguably, the Texas Supreme Court's reasoning in Williams-that fraud is an action for a debt not evidence by a writing-would apply to breach of fiduciary duty.

However, the court did not extend its reasoning regarding fraud claims to breach of fiduciary duty claims. In fact, the court cautioned, "The process of making analogies to common law forms of action to select a general limitation provision to apply is imperfect at best, and also has produced different limitation periods for very similar causes of action." Williams, 802 S.W.2d at 656.

The court may have made an oblique reference to breach of fiduciary duty in Williams in discussing the continued vitality of its holding in Gordon. See Williams, 802 S.W.2d at 654. In Williams, the court cited the Houston court's use of Gordon as authority in Andes v. Cagle, 468 S.W.2d 513 (Tex. Civ. App.-Houston [14th Dist.] 1971, writ ref'd n.r.e.). In Andes, a husband sued his former wife and an investment company, claiming they deprived him of his interest in two investment accounts the couple established. Andes, 468 S.W.2d at 514-15. Citing Gordon, the court held the claim against the investment company was barred because "misconduct of an agent" was governed by Article 5526, a predecessor to Section 16.004. Id. at 516-17.

However, the precise nature of the agent's alleged misconduct in Andes is unclear. Was it fraud (i.e., a debt not evidenced by a writing) or conversion? At the time Andes was written, a cause of action on a debt not evidenced by a writing and a cause of action for conversion were both governed by Article 5526. See Williams, 802 S.W.2d at 656; Andes, 468 S.W.2d at 516. In 1979, the Legislature consolidated the statute of limitations for all actions on debts into Article 5527. See Act of May 27, 1979, 66th Leg., R.S., ch. 716, § 1, 1979 Tex. Gen. Laws 1768 (repealed 1985) (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 16.003, 16.004 (Vernon Supp. 2002)). Article 5527 was later incorporated into Section 16.004. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3252.

Andes itself is unclear on the nature of the agent's alleged wrongdoing. In holding that Article 5526 applied, the court of appeals cited three cases holding Article 5526 barred causes of action for conversion and one case (Gordon) holding Article 5526 barred a cause of action for fraud not evidenced by a writing. Andes, 468 S.W.2d at 516-17 (citing Las Mendozas, Inc. v. Powell, 368 F.2d 445 (5th Cir. 1966) (conversion and, perhaps, breach of fiduciary duty); Gordon, 116 S.W. 40 (fraud); Adams v. San Antonio Life Ins. Co., 185 S.W. 610 (Tex. Civ. App.-Dallas 1916, writ ref'd) (conversion); Mut. Life Ins. Co. v. Garland, 23 Tex. Civ. App. 380, 56 S.W. 551 (1900, no writ) (conversion)).

Nevertheless, to the extent the Texas Supreme Court cited Andes to show Gordon was still good law, it may have suggested "misconduct of an agent," which would encompass breach of fiduciary duty, is governed by the same statute of limitations as that for fraud.

4. See Eiland v. Turpin, Smith, Dyer, Saxe & McDonald, 64 S.W.3d 155, 158-59 (Tex. App.-El Paso 2001, no pet.) (legal malpractice); Brents v. Haynes & Boone, L.L.P., 53 S.W.3d 911, 914-15 (Tex. App.-Dallas 2001, pet. denied) (legal malpractice); Burnap v. Linnartz, 38 S.W.3d 612, 624 (Tex. App.-San Antonio 2000, no pet.) (legal malpractice); Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (legal malpractice); Hall v. Stephenson, 919 S.W.2d 454, 465 (Tex. App.-Fort Worth 1996, writ denied) (legal malpractice); Sutton v. Mankoff, 915 S.W.2d 152, 157 (Tex. App.-Fort Worth 1996, writ denied) (legal malpractice); Bankr. Estate of Rochester v. Campell, 910 S.W.2d 647, 651 (Tex. App.-Austin 1995), rev'd on other grounds sub nom., Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997) (accountant malpractice); Ponder v. Brice & Mankoff, 889 S.W.2d 637, 642-43 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (legal malpractice); Hoover v. Gregory, 835 S.W.2d 668, 673 (Tex. App.-Dallas 1992, writ denied) (professional malpractice); Gulf Coast Inv. Corp. v. Brown, 813 S.W.2d 218, 221 (Tex. App.-Houston [14th Dist.] 1991), rev'd on other grounds, 821 S.W.2d 159 (Tex. 1991) (legal malpractice); Black v. Wills, 758 S.W.2d 809, 816 (Tex. App.-Dallas 1988, no writ) (legal malpractice); Willis v. Maverick, 723 S.W.2d 259, 261 (Tex. App.-San Antonio 1986), aff'd, 760 S.W.2d 642 (1988) (legal malpractice).

5. In fact, the Texas Supreme Court largely repudiated the risk of harm language when, in Murphy, it wrote in response to a dissenting opinion:

[The] dissent mischaracterizes our application of the discovery rule as holding that "an accounting malpractice cause of action accrues when a taxpayer knows or should know of a mere risk of injury." . . . As in all discovery rule cases, a cause of action accrues when the plaintiff knows or reasonably should know that he has been legally injured by the alleged wrong, however slightly.

Murphy, 964 S.W.2d at 273 (quoting Murphy, 964 S.W.2d at 274 (Spector, J, dissenting)).