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Opinion filed April 27, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00002-CV
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IN THE MATTER OF J.R.L.G.
On Appeal from the County Court at Law No. 1
Midland County, Texas
Trial Court Cause No. J05267
M E M O R A N D U M O P I N I O N
This appeal stems from a motion to modify a juvenile disposition and a commitment to the Texas Youth Commission. Appellant raises three issues on appeal. We affirm.
Background Facts
On July 16, 2004, the trial court placed appellant on probation for a period of one year for the offenses of evading arrest/detention with a vehicle, possession of marihuana less than two ounces in a drug-free zone, possession of marihuana less than two ounces, and escape from custody. The conditions of his probation included submitting to electronic monitoring; avoiding the use of alcohol, drugs, marihuana, or inhalants; reporting to the juvenile probation officer at least twice a week; abiding by a curfew; submitting to periodic urinalysis screening; and not operating a motor vehicle. On October 19, 2004, the State moved to modify appellant=s disposition, alleging that appellant had engaged in conduct that violated his conditions of probation by testing positive for T.H.C., twice testing positive for cocaine, twice failing to report to the probation officer, failing to follow curfew regulations, and operating a motor vehicle. Appellant pled not true. After hearing the evidence, the court found all the allegations to be true except for one of the curfew violations. After a separate disposition hearing, the court sentenced appellant to the Texas Youth Commission. This appeal followed. We affirm.
Issues On Appeal
Appellant asserts in his first and second issues that the trial court erred in admitting his lab results in violation of his Sixth Amendment Right of Confrontation. In appellant=s third issue, he asserts that the trial court abused its discretion by sentencing him to the Texas Youth Commission.
Sixth Amendment Right of Confrontation
The United States Constitution provides a right in both federal and state prosecutions to confront and cross-examine adverse witnesses. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). The Sixth Amendment provides: AIn all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him. The United States Supreme Court has held that out-of-court testimonial evidence is barred under the Confrontation Clause unless the witness is unavailable and the accused had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). The threshold question is whether the evidence is testimonial or non-testimonial. We review this question of law de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
In the case before us, State=s Exhibit Nos. 3 and 4 were the positive lab results from appellant=s urinalysis screening. Dennis Shaughnessy testified that he is a medical review officer with Drug Screen Compliance. Through his testimony, the State established the chain of custody of appellant=s lab results and that the results were prepared and kept in the regular course of business. When the State sought to introduce the records, appellant objected on the grounds that the records were inadmissible hearsay and that admitting them would violate appellant=s Right of Confrontation. The State argued that the records were admissible under the business records exception to the hearsay rule. The court denied appellant=s objections. On appeal, appellant does not complain of the trial court=s ruling on his hearsay objection. Therefore, we only address appellant=s Confrontation Clause claim.
In Crawford, the Supreme Court did not provide a comprehensive definition of testimonial evidence. However, the Court stated that the term Atestimonial@ Aapplies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.@ 541 U.S. at 68. The Court also stated that the traditional hearsay exceptions, such as business records, were non-testimonial in nature. Id at 56.
Texas courts have addressed what is testimonial and what is non-testimonial. Where records are involved, courts have distinguished between objective or historical information and subjective observations germane to the accused. In Mitchell v. State, No. 04-04-00885-CR, 2005 WL 3477857 (Tex. App.CSan Antonio Dec. 21, 2005, pet. ref=d), and Moreno Denoso v. State, 156 S.W.3d 166, 182 (Tex. App.CCorpus Christi 2005, pet. ref=d), the courts held that autopsy reports were non-testimonial in nature and, therefore, that the rules promulgated in Crawford did not apply.
In Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals found that discipline reports and incident reports from a prisoner=s file containing written statements made by correctional officers of their own observations were testimonial and subject to the Sixth Amendment Right of Confrontation. The Fourteenth Court of Appeals, distinguishing Russeau, held that jail records not containing statements or observations made by correctional officers were non-testimonial. Ford v. State, 179 S.W.3d 203 (Tex. App.CHouston [14th Dist.] 2005, pet. filed). The records admitted in Ford only recited the prisoner=s offenses and the punishments he received for the offenses. The records did not contain statements that were testimonial in nature. Id. at 209.
The case before us is similar to Ford. The lab reports do not contain out-of-court statements providing observations of a declarant. The lab reports merely contain the results of the tests. The reports are not testimony given at a preliminary hearing, before a grand jury, or at a former trial. The reports are not statements given in response to a police interrogation. The reports are more akin to general business records, which the Supreme Court has characterized as non-testimonial. Crawford, 541 U.S. at 56. Moreover, we note that the United States Supreme Court has held that blood tests and the results of those tests are not testimonial for purposes of the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 765 (1966). We hold, therefore, that the lab reports are non-testimonial evidence. The Sixth Amendment Confrontation Clause is not implicated, and the trial court did not err in admitting the reports. We overrule appellant=s first and second issues.
Did The Trial Court Abuse Its Discretion?
In his third issue, appellant asserts that the trial court abused its discretion by sentencing him to the Texas Youth Commission. A court may modify a prior felony disposition and commit a juvenile to the Texas Youth Commission upon a finding by a preponderance of the evidence that the juvenile violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. ' 54.05(f) (Vernon Supp. 2005). We review the trial court=s modification of a juvenile disposition under an abuse of discretion standard and reverse only when the trial court has acted in an unreasonable or arbitrary manner. In re K.B., 106 S.W.3d 913, 915 (Tex. App.CDallas 2003, no pet.).
Appellant contends that Tex. Fam. Code Ann. ' 54.05(k) (Vernon Supp. 2005) applies in his case and that, if the positive lab results are excluded, the trial court lacked the discretion to sentence him to the Texas Youth Commission. However, Section 54.05(k) applies only when the prior disposition is for a misdemeanor. Appellant was placed on probation for evading arrest with a vehicle which is classified as a felony. See Tex. Pen. Code Ann. ' 38.04(b)(1) (Vernon 2003). Even in the absence of the positive lab results, the trial court found that appellant violated five conditions of his probation. This is sufficient basis for the court=s decision. We overrule appellant=s third issue.
Conclusion
The trial court did not err in admitting appellant=s lab results. The trial court did not abuse its discretion by sentencing appellant to the Texas Youth Commission. The trial court=s judgment is affirmed.
RICK STRANGE
JUSTICE
April 27, 2006
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.