Dustin Aaron Hubbard v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00183-CR

DUSTIN AARON HUBBARD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 35th District Court Mills County, Texas Trial Court No. 3379, Honorable Stephen Ellis, Presiding

February 11, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Dustin Aaron Hubbard appeals his conviction for delivering a controlled substance.

Five issues pend for review. Upon considering them, we affirm the judgment.

Issue One –Sufficiency of the Evidence

We begin with appellant’s contention that the evidence was legally insufficient to

support conviction. Allegedly, the State failed to prove he delivered the controlled

substance as either the primary actor or as a party. We overrule the issue.1

1 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3. The standard of review we apply here is that discussed in Braughton v. State, 569

S.W.3d 592 (Tex. Crim. App. 2018). Next, a person commits an offense if he knowingly

delivers a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West

2017). Delivery means to transfer, either actually or constructively, a controlled

substance to another person. Id. § 481.002(8) (West Supp. 2020). Culpability may be

either as the primary actor or a party to the act of another. Regarding the latter, one is

criminally responsible for an offense committed by another if, while acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person commit the crime. TEX. PENAL CODE ANN. § 7.02((a)(2)

(West 2011). That said, we turn to the evidence of record.

The transaction at bar involved a sting. That is, an informant was asked to acquire

methamphetamine and marijuana on behalf of law enforcement officials. He began that

endeavor by calling Dotson and informing her that it was his birthday, he wanted to

celebrate it with drugs, did not want to search for them himself, and asked if she would

do it for him. While discussing the transaction on the phone, Dotson agreed and offered

to leave “collateral.” The offer of “collateral” was made to assure her bona fides as she

planned to take the informant’s money prior to beginning her search. Appellant was

among the items of “collateral” offered by Dotson.

Eventually, Dotson arrived at the informant’s apartment. Accompanying Dotson

were appellant and Griffin. The informant gave Dotson money, and Dotson, along with

appellant and Griffin, left. Instead of leaving appellant behind, she allowed the informant

to hold her cell phone as collateral. The three returned several hours later, entered the

apartment, sat across from the informant, and started discussing the drugs acquired. All

2 present spoke at one time or another during the negotiations. And, during their verbal

exchanges (which a law enforcement officer described as “conducting a drug deal”),

Dotson handed appellant a baggie containing what appeared to be a white substance.

Appellant held it momentarily then handed it back to Dotson, who then passed it to the

informant. At that point, law enforcement officers hiding in the apartment effectuated

arrests of those present. They also seized two bags containing a white powdery

substance (methamphetamine), one of which was that handed to and possessed by

appellant. Finally, in a post-arrest interview, appellant described how the group travelled

to Brownwood to acquire the drugs from a person named Jason Brown.

It is clear that Dotson arranged for the acquisition of the drugs and directly handed

them to the informant once acquired. Yet, appellant was present when the informant

gave Dotson the money to buy the drugs, was offered-up as collateral to assure Dotson’s

performance, was privy to the conversation between Dotson and the informant since he

wished the informant a happy birthday, travelled with Dotson to the location at which the

drugs were bought, knew the identity of the person from whom they were acquired,

returned with Dotson to the informant’s apartment, spoke during the drug negotiations,

and physically held the drugs before they were passed to the informant. Moreover, an

officer testified that it was not unusual for female dealers to take males with them for

protection when transacting drug deals. Given this, the jury had before it some evidence

upon which it could rationally conclude that appellant, acting with intent to promote or

assist the drug sale, aided or attempted to aid Dotson commit the crime. His involvement

was more than just mere presence, contrary to his suggestion otherwise.

3 Issue Two – Confrontation Clause

Next, appellant complains that he was denied the right to confront witnesses when

the trial court admitted into evidence the drug analysis report. His right was so denied

because the individuals who actually conducted the analysis were not called to testify, but

rather a surrogate was called in their stead. We overrule the issue.

The purported surrogate was the person who signed the actual report, i.e., Deiss.

It was generated after other analysts performed the legwork of removing a quantum of

substance from the baggies and placing it in the machines that conducted the analysis.

The process utilized by the machines generates waveforms, which waveforms the

machine memorializes and compares to a library of known waveforms. Different drugs

have different waveforms and comparing the generated waveforms to the library of known

ones identifies the particular controlled substance involved. Rather than simply rely on

the machine generated match, Deiss undertook her own comparison of the waveforms

generated by the machine to the library of known waveforms. Through it she confirms

the accuracy of the machine’s assessment, checks the steps undertaken to obtain the

waveforms, and executes the ultimate report. This process likens to that used in Paredes

v. State, 462 S.W.3d 510 (Tex. 2015).

DNA instead of drugs was being analyzed in Paredes. And the analyst issuing the

report in question did so after conducting an independent review of raw data generated

by a computer. Though others were involved in preparing the blood sample and inserting

it in a machine (computer) that performed the actual analysis, the computer itself simply

generated raw data that the testifying expert had to analyze to form the opinion within the

ultimate report. The Paredes court observed that the Confrontation Clause does not

mandate that everyone whose testimony may be relevant in establishing the chain of

4 custody, the authenticity of the sample, or the accuracy of the testing device must actually

testify. Paredes, 462 S.W.3d at 518 (quoting Melendez-Diaz v. Massachusetts, 557 U.S.

305, 311 n.1, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)). It also distinguished the

situation before it from those where the testifying expert simply relies on conclusions from

another analyst’s report in forming his or her own conclusion. Id. Instead, the testifying

expert in Paredes reviewed raw data generated by the computer and extrapolated an

opinion from it. Id. That independent analysis of raw data by the testifying expert

removed the circumstances from the throes of the Confrontation Clause. That raw data

was not the functional equivalent of live testimony, according to the court, because it “did

not come from a witness capable of being crossed-examined” but “from a computer.” Id.

at 519. The same is no less true here.

Though humans were involved in preparing the substance for analysis, the

analysis was done by a machine. That machine derived raw data, i.e., waveforms, which

were independently compared to known waveforms of specific controlled substances.

Deiss conducted that independent comparison after checking upon the propriety of the

steps leading to the machine developing the raw data. So, like the trial court in Paredes,

the trial court at bar also had before it a testifying expert whose report was derived by

independent analysis of raw data generated by a machine. Consequently, we have no

basis to conclude that the trial court abused its discretion in overruling the Confrontation

Clause objection directed at Deiss’s report. Colbert v. State, No. 03-17-00558-CR, 2019

Tex. App. LEXIS 1720, at *6 (Tex. App.—Austin Mar. 7, 2019, pet. ref’d) (mem. op., not

designated for publication) (applying the abuse of discretion standard to review a decision

overruling a Confrontation Clause objection).

5 Issue Three – Charge Error

Next, appellant asserts that the trial court erred in failing to define “with intent” in

the jury charge. We overrule the issue.

No one objected to the absence of the definition. Assuming arguendo that the

definition was law of the case necessitating definition, its omission was reversible only if

appellant suffered egregious harm. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim.

App. 2019). Such harm occurs when the default deprived the appellant a fair and impartial

trial. Id.; accord Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020) (stating

that one suffers egregious harm when the omission affects the very basis of the case,

deprives the defendant of a valuable right or vitally affected a defensive theory). We

conducted the requisite valuation here and cannot conclude that the omission affected

the very basis of the case or otherwise denied appellant a fair and impartial trial.

As previously mentioned, ample evidence supported a finding that appellant acted,

at the very least, as a party to the delivery. He was offered up as collateral by his

compatriot as she sought to complete the transaction, knew of Dotson’s purpose, went

with her on a multi-hour drive to secure the drug, participated in the negotiations while

seated inside the apartment, possessed the drug before giving it to Dotson for actual

delivery to the informant, and even wished the informant a happy birthday. Appellant

knew the plan, travelled with Dotson to effectuate it, and was actually a link in the chain

of delivery to the informant. We have no doubt that he aided in the commission of the

crime with the conscious desire or objective to assist Dotson commit the crime. See TEX.

PENAL CODE ANN. § 6.03(a) (West 2011) (stating that a person acts intentionally, or with

intent, with respect to the nature of his conduct or to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result). So, omitting

6 the definition of “with intent” from the charge did not deprive him of a fair trial by allowing

the jury to convict him as a party without the requisite evidence of intent to assist. The

jury may not have been told what “intent” meant but they nonetheless had the requisite

basis to find his actions were coupled with such intent.

Issue Four – Charge Error

Appellant next complains of supposed charge error by contending that the trial

court’s reference to direct and circumstantial evidence were comments on the weight of

the evidence. We overrule the issue.

The alleged error consisted of the trial court stating in its charge that 1) a “fact may

be established by direct evidence or by circumstantial evidence, or both”; 2) a “fact is

established by direct evidence when proved by documentary evidence or by witnesses

who saw the act done or heard the words spoken”; and, 3) a “fact is established by

circumstantial evidence when it may be fairly and reasonably inferred from other facts

proved.” (Emphasis added). Like the alleged charge error addressed in the previous

issue, this one too appeared without complaint by anyone. Thus, it is reversible only if it

denied appellant a fair and impartial trial, Chambers, supra, or affected the very basis of

the case. Gonzalez, supra. It did neither. Indeed, a like instruction was found to be

nothing more than a “mild, neutral, and an obvious common-sense proposition.” Barron

v. State, No. 08-12-00184-CR, 2016 Tex. App. LEXIS 8811, at *24 (Tex. App.—El Paso

Aug. 12, 2016, pet. ref’d) (not designated for publication) (quoting Brown v. State, 122

S.W.3d 794, 803 (Tex. Crim. App. 2003)). This was especially so because the instruction

was accompanied by another informing the jurors that they were the exclusive judges of

the facts proved, the credibility of the witnesses, and the weight to be given the testimony.

7 Id. at *22. Such an additional instruction appeared in the charge at bar. We find no denial

of a fair trial or impact on the very basis of the case; that is, we find no egregious harm.

Issue Five – Charge Error

Appellant levied one final attack upon the charge. It concerned another purported

comment on the weight of the evidence. We overrule the issue.

The supposed comment occurred when the court charged the jury that 1) “[w]hile

you should consider only the evidence, you are permitted to draw reasonable inferences

from the testimony and exhibits that are justified in the light of common experience”; and

2) “[i]n other words, you may make deductions and reach conclusions that reason and

common sense lead you to draw from the facts that have been established by the

evidence.” The Austin Court of Appeals, whose precedent we must follow, considered a

like argument, viz., a like instruction and held its inclusion was not error. “[T]hese

instructions are not ‘special instructions’ and do not focus the jury’s attention on a specific

type or piece of evidence that may support an element of the offense.” Lerma v. State,

No. 03-18-00578-CR, 2020 Tex. App. LEXIS 2478, at *8 (Tex. App.—Austin Mar. 26,

2020, pet. ref’d) (mem. op. on reh’g, not designated for publication).

We affirm the judgment of the trial court.

Per Curiam

Do not publish.