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Click here for the full text of this decision FACTS:Police arrested the defendant for possession of cocaine, more than one gram, but less than four grams. At trial, the state chemist was qualified as an expert and testified that a drug analysis report reflected that the substance seized from the defendant weighed roughly 2.08 grams and contained cocaine. The defendant was convicted and sentenced to 10 years’ in prison. On appeal, the defendant challenges the state chemist’s testimony. The defendant says: 1. that the trial court abused its discretion by allowing hearsay testimony; 2. that the trial court abused its discretion in admitting an expert’s opinion over a hearsay objection; and 3. that the trial court erred in permitting the testimony of a witness not named on the state’s pretrial witness list. HOLDING:Reversed and remanded. The court points out that, contrary to the state’s assertion, the expert in this case was not asked for an opinion. He was asked what the report itself said about the weight of the cocaine submitted for analysis, which was hearsay if it was offered to prove the weight. The trial court erred in allowing the testimony. The error was not harmless. Excluding the erroneously admitted evidence, there is no evidence of the amount of cocaine the defendant possessed. Because there is a lower offense — possession of less than one gram of cocaine — the evidence of the defendant’s guilt in the charged offense is not overwhelming. OPINION:Chew, J.; Larsen, McClure and Chew, JJ. CONCURRENCE: McClure, J. The concurrence finds the expert’s testimony amounted to an out-of-court statement offered for the truth of the matter asserted, and falls outside the two cases — Martinez v. State, 993 S.W.2d 751 (Tex.App.–El Paso 1999) and Aguilar v. State, 887 S.W.2d 27 (Tex.Crim.App. 1994) — cited by the majority, which the concurrence says were not hearsay case.

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