NO. 07-07-0501-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 15, 2009
______________________________
LARRY WILSON, SR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;
NO. 3423; HONORABLE DAVID MCCOY, JUDGE 1
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
On January 23, 2006, Appellant, Larry Wilson, Sr., plead guilty to arson and was
placed on deferred adjudication for five years. On January 4, 2007, the State filed a
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Although the Honorable David M. McCoy presided at the pretrial hearings and the
hearing on the State’s motion to adjudicate, the Honorable John T. Forbis presided over
the hearing on Appellant’s motion for new trial.
motion to adjudicate guilt based upon three alleged violations of the terms and conditions
of community supervision. Appellant’s defense was based upon a theory that Desman
Mace had laced his food with marihuana2 and, therefore, he did not knowingly ingest a
controlled substance in violation of the terms and conditions of his community supervision.
On October 1, 2007, Judge McCoy found that Appellant had violated the condition of his
community supervision that he abstain from the use of narcotics or any controlled
substance and adjudicated him guilty. Punishment was then assessed at fourteen years
confinement. Appellant timely filed a motion for new trial and, on December 13, 2007,
Judge Forbis conducted a hearing on that motion. Without ruling on the motion for new
trial, the motion was overruled by operation of law and this appeal followed.3
By three points of error, Appellant maintains the trial court abused its discretion in
(1) failing to grant his motion for new trial as previously agreed to on the record and in light
of new evidence; (2) failing to grant his motion for continuance based on the unavailability
of a material witness; and (3) finding that he violated a condition of community supervision
because the State failed to meet its burden of proof. We affirm.
2
The Texas Controlled Substances Act refers to “marihuana;” the record refers to
“marijuana.” We will use the statutory spelling throughout this opinion except in quoted
material. See Tex. Health & Safety Code Ann. §§ 418.001 - .314 (Vernon 2003 & Supp.
2008).
3
Effective June 15, 2007, the Legislature amended article 42.12, § 5(b) of the Texas
Code of Criminal Procedure to permit an appeal from the trial court’s determination to
adjudicate guilt in the same manner as a revocation hearing. See Tex. Code Crim. Proc.
Ann. art. 42.12, § 5(b) (Vernon Supp. 2008).
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I. Procedural and Factual Background
On December 4, 2006, while Appellant was on deferred adjudication, a urine sample
was taken from him for the purpose of conducting a urinalysis. The sample tested positive
for marihuana. As a result, on January 4, 2007, the State filed its motion to adjudicate
guilt. On April 3, 2007, Appellant filed a motion seeking continuance of a hearing
scheduled April 9th. On August 2, 2007, Appellant filed a motion seeking continuance of
a hearing scheduled August 7th. On August 30, 2007, Appellant filed a motion for
continuance seeking a continuance of a hearing scheduled that day. That motion was
supported by Appellant’s affidavit averring that “Desman Mace is a material witness whose
presence is required because he will testify that he put marijuana in my food without my
knowledge.” The revocation hearing commenced on August 30th, however, after hearing
testimony from witnesses for both the State and Appellant, that hearing was recessed in
order to allow Appellant’s counsel an opportunity to secure Mace’s attendance. On
September 28, 2007, Appellant filed a “second” motion seeking continuance of the
recommencement hearing scheduled October 1st. On October 1, 2007, the trial court
conducted a pretrial hearing on that motion before recommencing the hearing on the
State’s motion to adjudicate.
A. Pretrial Hearing on Motion for Continuance
During the pretrial hearing conducted October 1, 2007, Appellant’s counsel argued
that he had requested a subpoena for Mace several weeks earlier, but it had been returned
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undelivered. Counsel informed the court that he believed the witness was in the Denver,
Colorado area but he was unable to locate him. The court noted that an affidavit by Mace
had been admitted, without objection, during the August 30th hearing for the purpose of
showing what his testimony would have been if he were available. The affidavit provided,
in part, “I, Desman Mace, put marijuana in Larry Wilson, Sr.’s food (turnip green) without
him noing [sic] on 12-3-06 Amarilo, [sic] Tx, because Larry Wilson has a girlfriend that I
wanted to be with . . . .” Noting that the record contained the substance of Mace’s
proffered testimony, the court denied the motion for continuance and proceeded with the
motion to adjudicate.
B. Hearing on State’s Motion to Adjudicate
The court heard testimony on August 30, 2007, however, it did not rule on the
motion until October 1, 2007. During the August 30th hearing, Appellant’s community
supervision officer testified that Appellant was required to submit to a urinalysis test on
December 4, 2006. Dr. John Laseter, whose expert qualifications include a Ph.D. in
biochemistry, testified that the results of Appellant’s urinalysis showed 210 nanograms per
milliliter of the THC metabolite found in marihuana. According to Dr. Laseter, a result of
15 nanograms per milliliter is the “cut off” for a positive confirmation of marihuana use. He
also testified that eating marihuana would not necessarily elevate the THC level in the
body. He explained that ingesting marihuana would have little or no effect on a person
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unless the quantity consumed was large because digestive enzymes would break it down
and absorption takes place very slowly.
Appellant denied using marihuana and testified that his positive urinalysis was
because Mace had laced his food with marihuana over a dispute involving a woman. At
the conclusion of the August 30th hearing, the court recessed further proceedings for the
sole purpose of allowing Appellant the opportunity to compel Mace’s attendance and
testimony. When the hearing resumed on October 1st, Mace remained unavailable. The
court noted that if Mace was to testify to the matters already contained in his previously
admitted statement, there was nothing more to hear.
Appellant then argued that unidentified persons at a drug lab had contradicted Dr.
Laseter’s testimony regarding the effect of consuming food laced with marihuana.
Following that argument, the trial court made the following ruling:
I am willing to complete this case today, and depending on how I rule on this
case – if I revoke Mr. Wilson’s probation or deferred, whatever it is, I’m
willing, if he will give you names and you can get affidavits from properly
qualified doctors at either one of these two places, that will say that the
ingestation by eating in cooking materials, will give you much higher readings
than Dr. Laseter had said they would, then I am willing to reconsider and
grant a motion for new trial, if it’s done within the proper new trial time.
The court added “[t]he guy needs to be qualified. He needs to be qualified to do the things
that Dr. Laseter is qualified to do.” The ruling continued:
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If that doctor or whatever he would be classified, Ph.D., says, “[i]n my
medical professional opinion, if you ingest certain sums of marijuana through
cooking–“ like with the case here– “–then the reading could well be as high
or higher than the reading was in your test that Dr. Laseter testified to.” Then
I’m willing to grant a motion for rehearing as long as it’s done in a timely [sic],
so I don’t lose jurisdiction.
The court then ruled that the evidence was sufficient to establish by a
preponderance of the evidence that Appellant violated the condition that he abstain from
using narcotics or any controlled substance in any form at any time unless taken under the
direction of a physician. Appellant was adjudicated guilty of arson and sentenced to
fourteen years confinement.
II. Discussion
A. Motion for New Trial
Appellant contends the trial court abused its discretion in failing to grant his motion
for new trial as previously agreed to on the record and in light of new evidence. We
disagree. The trial court has discretion to decide whether to grant a motion for new trial
based on newly-discovered evidence, and its ruling will not be disturbed absent an abuse
of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002).
The hearing on Appellant’s motion for new trial was presided over by the Honorable
John T. Forbis. He expressed concern about Judge McCoy’s “agreement” to reconsider
Appellant’s revocation if new evidence became available to support his contention that he
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did not knowingly use a controlled substance in violation of the terms and conditions of his
community supervision. Appellant’s new evidence consisted of an affidavit from Steve
Harris, a scientist employed by One Source Toxicology. Harris averred in relevant part:
I am an employee for One Source Toxicology Laboratory, Inc. I was the
certifying scientist for the reconfirmation marijuana testing for Larry Wilson
performed on August 16, 2007. It is my professional opinion that it is
possible for an individual to ingest marijuana that has been cooked, either by
baking or boiling, and test positive for marijuana consumption at a level of
150-250 ng/mL. The heat involved in the cooking process releases the THC
in much the same way igniting the marijuana to smoke it does. The amount
of marijuana placed in the food could be small enough that a person eating
the food in which the marijuana was contained would not detect the presence
of the marijuana, this is true because the THC content in marijuana plants
greatly varies.
Noting that this was a very serious matter, Judge Forbis deferred his ruling to review things
“word-by-word.” The motion for new trial, however, was overruled by operation of law.
Judge McCoy’s “agreement” on the record that he would reconsider or grant a new
trial was conditioned on Appellant providing an affidavit from an expert with credentials
similar to those of Dr. Laseter’s, i.e., Ph.D. Harris’s affidavit does not provide any
information establishing his expert qualifications “to do the things that Dr. Laseter is
qualified to do” as required by Judge McCoy’s ruling. Thus, we conclude the affidavit is
insufficient to satisfy the condition imposed by Judge McCoy for granting a new trial. See
Tex. R. Evid. 702. Without deciding whether such an “agreement” is enforceable, we find
the trial court did not abuse its discretion by failing to grant Appellant’s motion for new trial
based upon any agreement in the record.
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Furthermore, motions for new trial based upon newly discovered evidence are
controlled by article 40.001 of the Texas Code of Criminal Procedure which provides: “A
new trial shall be granted an accused where material evidence favorable to the accused
has been discovered since trial.” Keeter, 74 S.W.3d at 36. This provision has been
interpreted as requiring the satisfaction of a four-part test: (1) the newly discovered
evidence was unknown or unavailable to the movant at the time of trial; (2) the movant’s
failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new
evidence is admissible and is not merely cumulative, corroborative, collateral, or
impeaching; and (4) the new evidence is probably true and will probably bring about a
different result on another trial. Id. at 36-37. Nothing in the record supports a finding that
the testimony of Harris met these requirements at the time of the hearing on the motion to
proceed. Point of error one is overruled.
B. Motion for Continuance
Appellant contends the trial court abused its discretion in failing to grant his second
motion for continuance based on the unavailability of a material witness. We disagree.
Whether to grant or deny a motion for continuance is within the sound discretion of
the trial court. Janeka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). When
reviewing the trial court’s denial of a motion for continuance, we examine the
circumstances present in every case, particularly the reasons presented to the trial court
at the time the motion is denied. Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.
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1982). Where the continuance is requested because of a missing witness, if the evidence
does not indicate a probability that the witness can be secured by a postponement, or if
it appears that a continuance due to the absence of the witness would delay the trial
indefinitely, the motion may be properly denied. Rodriguez v. State, 21 S.W.3d 562, 565-
66 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d) (citing Varela v. State, 561 S.W.2d 186,
191 (Tex.Crim.App. 1978)).
The record establishes that Appellant had already been granted several
continuances, including a continuance from August 30th to October 1st, solely for the
purpose of finding Mace. When Mace was still unavailable, the trial court denied the
motion for continuance, noting that Mace’s written statement to the effect that he had
placed marihuana in Appellant’s food without his knowledge was already before the court.
Appellant did not establish that an additional continuance to locate Mace would have
contributed anything further to his defense. The trial court was not required to continue the
case indefinitely to locate a witness, the substance of whose testimony was already known.
We conclude the trial court did not abuse its discretion in failing to grant Appellant’s motion
for continuance. Point of error two is overruled.
C. Revocation of Community Supervision
By his third and final point, Appellant asserts the trial court abused its discretion in
finding that he violated a condition of community supervision because the State failed to
meet the burden of proof. We disagree.
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When reviewing an order revoking community supervision imposed under an order
of deferred adjudication, the sole question before this Court is whether the trial court
abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006);
Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Jackson v. State, 645
S.W.2d 303, 305 (Tex.Crim.App. 1983). In a revocation proceeding, the State must prove
by a preponderance of the evidence that the probationer violated a condition of community
supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874
(Tex.Crim.App. 1993). If the State fails to meet its burden of proof, the trial court abuses
its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494. In
determining the sufficiency of the evidence to sustain a revocation, we view the evidence
in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421
(Tex.Crim.App. 1979).
The State’s expert witness, Dr. Laseter, testified that Appellant’s urinalysis tested
positive for marihuana in an amount much higher than if the marihuana had been ingested
by eating food laced with marihuana. Even if Appellant had been able to present evidence
from a qualified expert refuting Dr. Laseter’s testimony, the court was free to accept or
reject that testimony. The State proved by a preponderance of the evidence that Appellant
violated the terms and conditions as found by the trial court. Thus, the trial court did not
abuse its discretion in adjudicating Appellant guilty of the charged offense and revoking his
community supervision. Point of error three is overruled.
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Consequently, the trial court’s order adjudicating guilt is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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