X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Kaufman police officer Jeremy Mack stopped Curtis Deener for a faulty brake light and arrested him on an outstanding warrant for parole violations. During book-in at the police station, Mack asked Deener to empty his pockets for an inventory search. Deener removed a pack of cigarettes from his pocket and placed it on the table. Mack testified he looked inside the pack and found an off-white, rock-like substance he believed to be crack cocaine. Deener was charged with illegal possession of a controlled substance in an amount less than one gram. Pursuant to Texas Code of Criminal Procedure Arts. 38.41 and 38.42, the state timely filed and served notices of chain of custody affidavits and of a certificate of analysis relating to the alleged contraband. The chain of custody affidavits traced the custody of the cigarette pack and its contents from when it was retrieved by the police to when it was delivered to the Texas Department of Public Safety (DPS) Garland Crime Lab. The certificate of analysis, signed by an employee of the DPS Crime Lab in Garland, contained the information required by Art 38.41, �3. It stated that the substance weighed 0.07 grams and contained cocaine. Deener did not file a written objection to the affidavits or the certificate of analysis. Deener’s first trial began Feb. 28, 2005. During this trial the chain of custody affidavits and certificate of analysis were admitted without objection. The jury, however, was unable to reach a verdict, and the trial court declared a mistrial. At the second trial two weeks later, Mack was again the only witness for the state. However, when the state again offered the chain of custody affidavits and the certificate of analysis, Deener objected to the documents as hearsay and as violations of his Sixth Amendment right of confrontation. The trial court overruled the objections and admitted the documents. The jury convicted Deener at the second trial. Deener pled true to two enhancement paragraphs. The jury found the enhancement paragraphs true and assessed Deener’s punishment at 14 years of imprisonment. The court concluded that the right of confrontation is a forfeitable right, not a waivable-only right, and it must be preserved by a timely and specific objection at trial. HOLDING:Affirmed. In his first issue, Deener argued that Crawford v. Washington, 541 U.S. 36 (2004), which was decided some six months after the legislature enacted Texas Code of Criminal Procedure Arts. 38.41 and 38.42, effectively struck down the procedures set forth in those statutes on grounds they violate the confrontation clause of the Sixth Amendment. The court concluded the right of confrontation is a forfeitable right, not a waivable-only right, and must be preserved by a timely and specific objection at trial. Crawford, the court stated, does not excuse appellant for failing to make a confrontation claim at trial. Because Deener did not file a written objection to the use of the affidavits and certificate of analysis at least 10 days before trial, his objection at trial was not timely and he forfeited his right of confrontation, the court held. Deener requested a jury instruction on the factors used in reviewing the sufficiency of the evidence to affirmatively link the accused to the contraband, but the trial court refused this instruction. Deener argued the trial court erred in refusing his requested jury instructions, the court stated. The affirmative-links rule, the court stated, is only a shorthand expression for evaluating the sufficiency of the evidence. Therefore, the court stated, instructing the jury on the affirmative-links rule would be improper, because the rule is a technical legal standard of review not meant for use by the jury. The trial court did not err in rejecting Deener’s requested instruction, the court held. OPINION:Moseley, J.; Morris, Moseley and Richter, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.