TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00743-CV
In the Matter of D. A. S.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-12,136, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
Appellant, D.A.S., seeks a reversal of a juvenile court order, committing her to custody of the Texas Youth Commission ("TYC"). The judgment was rendered after a hearing on the state's motion to modify probation, due to appellant's violation of the condition that she not use alcohol, inhalants or illegal drugs.
Appellant claims that there is no evidence or insufficient evidence that she violated the terms of her probation because the court erred in admitting the results of urinalysis tests. She also asks that the matter be reversed and remanded because an inaudible tape recording is equivalent to the loss or destruction of the court reporter's notes. We will affirm the order modifying disposition.
BACKGROUND
On May 25, 1994, the juvenile court found that appellant had engaged in delinquent conduct (the unauthorized use of a motor vehicle) and placed her on probation with her guardian, Pearl Gomez. On August 2, 1994, the court signed an order modifying probation to commit her to the custody of Lena Pope in Fort Worth. On August 30, 1994 appellant tested positive for THC, a chemical found in marihuana. On October 20, 1994, the juvenile court found beyond a reasonable doubt that appellant had violated a lawful court order; the court revoked probation and committed her to TYC for drug treatment. See Tex. Fam. Code Ann. § 54.05(f) (West Supp. 1995).
URINALYSIS RESULTS
At the October 20, 1994 hearing, appellant's probation officer, Sonia Hartman, was the only witness. Hartman testified that she administered and read the results of a urinalysis test that indicated the presence of THC in appellant's urine; a second test was positive for opiates. Appellant objected that Hartman was not qualified to testify as to the results of the urinalysis tests. The court overruled the objection and based on the positive test results, revoked probation and ordered appellant committed to TYC.
In her first four points of error, appellant complains that there is no evidence or insufficient evidence because the urinalysis test results were improperly admitted. Her first two points of error assert that the State failed to establish that the urinalysis test was generally accepted as reliable by the scientific community. Because this complaint differs from the one that appellant raised at trial, she has failed to preserve error. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 85 (1985). We overrule the first two points of error.
At trial, appellant did complain that Hartman was not qualified to read the results of the urinalysis test. After questioning Hartman about the test itself, the court overruled the objection and found Hartman qualified. We will overturn a ruling on the admissibility of expert testimony only if the trial court abused its discretion. Amos v. State, 819 S.W.2d 156, 163 (Tex. Crim. App. 1991), cert. denied, __ U.S. ___, 112 S. Ct. 1959 (1992). Hartman testified that she had been trained for eight hours in administering such tests, including one and one-half hours of training for reading the test results. She further testified that she had meticulously followed the instructions in administering this test. In response to the court's questioning, Hartman described the simplified nature of the urinalysis test in which urine is collected, then dropped into the test receptacle which has a window that reveals two vertical lines if the test is negative, one vertical line if the test is positive. The court did not abuse its discretion in admitting the positive test results of the urinalysis. We overrule points of error three and four.
INAUDIBLE TAPE RECORDING
In her fifth point of error, appellant asks this court to reverse and remand this cause because certain portions of the tape recording of the hearing are inaudible. See Tex. R. App. P. 50(e) (appellant entitled to new trial when court reporter's notes and records have been lost or destroyed through no fault of appellant and parties are unable to agree on statement of facts). There may be times when an inaudible tape recording will require us to remand for a new trial, but this is not one of them. In Born v. Virginia City Dance Hall & Saloon, the court distinguished a claim based on inaudible tapes from a claim that the record has been lost or destroyed. Born v. Virginia City Dance Hall & Saloon, 857 S.W.2d 951, 954 (Tex. App.--Houston [14th Dist.] 1993, writ denied). Additionally, Born established that when seeking a remand because of an inaudible tape, an appellant must (1) attempt to correct any inaccuracies by the method provided in Rule 55(a), and (2) show that the parties cannot agree on a statement of facts. Id. This appellant has done neither. Furthermore, we have reviewed the complete written transcription of the taped hearing and find no gaps substantial to appellant's argument on appeal, which distinguishes this matter from the case relied upon by appellant. See In the Matter of I.A. v. State, 587 S.W.2d 538, 540 (Tex. Civ. App.--Corpus Christi 1979, no pet.) (virtually all testimony of two crucial witnesses inaudible). The only point of error preserved below is one we have been able to review based on the tape as transcribed. We overrule point of error five.
Because we find no error, we affirm the trial court's order modifying disposition revoking probation and committing appellant to TYC.
Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Jones and B. A. Smith
Affirmed
Filed: October 25, 1995
Do Not Publish
appellant's urine; a second test was positive for opiates. Appellant objected that Hartman was not qualified to testify as to the results of the urinalysis tests. The court overruled the objection and based on the positive test results, revoked probation and ordered appellant committed to TYC.
In her first four points of error, appellant complains that there is no evidence or insufficient evidence because the urinalysis test results were improperly admitted. Her first two points of error assert that the State failed to establish that the urinalysis test was generally accepted as reliable by the scientific community. Because this complaint differs from the one that appellant raised at trial, she has failed to preserve error. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 85 (1985). We overrule the first two points of error.
At trial, appellant did complain that Hartman was not qualified to read the results of the urinalysis test. After questioning Hartman about the test itself, the court overruled the objection and found Hartman qualified. We will overturn a ruling on the admissibility of expert testimony only if the trial court abused its discretion.