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Date: 02-21-2021

Case Style:

Dustin Aaron Hubbard v. The State of Texas

Case Number: 07-20-00183-CR

Judge: Per Curiam

Court: Court of Appeals Seventh District of Texas at Amarillo

Plaintiff's Attorney: Alexander Hunn

Defendant's Attorney:

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Amarillo, TX - Criminal defense attorney represented Dustin Aaron Hubbard with a Delivery of a Controlled Substance charge.

We begin with appellant’s contention that the evidence was legally insufficient to
support conviction. Allegedly, the State failed to prove he delivered the controlled
substance as either the primary actor or as a party. We overrule the issue.1
1 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
The standard of review we apply here is that discussed in Braughton v. State, 569
S.W.3d 592 (Tex. Crim. App. 2018). Next, a person commits an offense if he knowingly
delivers a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West
2017). Delivery means to transfer, either actually or constructively, a controlled
substance to another person. Id. § 481.002(8) (West Supp. 2020). Culpability may be
either as the primary actor or a party to the act of another. Regarding the latter, one is
criminally responsible for an offense committed by another if, while acting with intent to
promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person commit the crime. TEX. PENAL CODE ANN. § 7.02((a)(2)
(West 2011). That said, we turn to the evidence of record.
The transaction at bar involved a sting. That is, an informant was asked to acquire
methamphetamine and marijuana on behalf of law enforcement officials. He began that
endeavor by calling Dotson and informing her that it was his birthday, he wanted to
celebrate it with drugs, did not want to search for them himself, and asked if she would
do it for him. While discussing the transaction on the phone, Dotson agreed and offered
to leave “collateral.” The offer of “collateral” was made to assure her bona fides as she
planned to take the informant’s money prior to beginning her search. Appellant was
among the items of “collateral” offered by Dotson.
Eventually, Dotson arrived at the informant’s apartment. Accompanying Dotson
were appellant and Griffin. The informant gave Dotson money, and Dotson, along with
appellant and Griffin, left. Instead of leaving appellant behind, she allowed the informant
to hold her cell phone as collateral. The three returned several hours later, entered the
apartment, sat across from the informant, and started discussing the drugs acquired. All
present spoke at one time or another during the negotiations. And, during their verbal
exchanges (which a law enforcement officer described as “conducting a drug deal”),
Dotson handed appellant a baggie containing what appeared to be a white substance.
Appellant held it momentarily then handed it back to Dotson, who then passed it to the
informant. At that point, law enforcement officers hiding in the apartment effectuated
arrests of those present. They also seized two bags containing a white powdery
substance (methamphetamine), one of which was that handed to and possessed by
appellant. Finally, in a post-arrest interview, appellant described how the group travelled
to Brownwood to acquire the drugs from a person named Jason Brown.
It is clear that Dotson arranged for the acquisition of the drugs and directly handed
them to the informant once acquired. Yet, appellant was present when the informant
gave Dotson the money to buy the drugs, was offered-up as collateral to assure Dotson’s
performance, was privy to the conversation between Dotson and the informant since he
wished the informant a happy birthday, travelled with Dotson to the location at which the
drugs were bought, knew the identity of the person from whom they were acquired,
returned with Dotson to the informant’s apartment, spoke during the drug negotiations,
and physically held the drugs before they were passed to the informant. Moreover, an
officer testified that it was not unusual for female dealers to take males with them for
protection when transacting drug deals. Given this, the jury had before it some evidence
upon which it could rationally conclude that appellant, acting with intent to promote or
assist the drug sale, aided or attempted to aid Dotson commit the crime. His involvement
was more than just mere presence, contrary to his suggestion otherwise.
Issue Two – Confrontation Clause
Next, appellant complains that he was denied the right to confront witnesses when
the trial court admitted into evidence the drug analysis report. His right was so denied
because the individuals who actually conducted the analysis were not called to testify, but
rather a surrogate was called in their stead. We overrule the issue.
The purported surrogate was the person who signed the actual report, i.e., Deiss.
It was generated after other analysts performed the legwork of removing a quantum of
substance from the baggies and placing it in the machines that conducted the analysis.
The process utilized by the machines generates waveforms, which waveforms the
machine memorializes and compares to a library of known waveforms. Different drugs
have different waveforms and comparing the generated waveforms to the library of known
ones identifies the particular controlled substance involved. Rather than simply rely on
the machine generated match, Deiss undertook her own comparison of the waveforms
generated by the machine to the library of known waveforms. Through it she confirms
the accuracy of the machine’s assessment, checks the steps undertaken to obtain the
waveforms, and executes the ultimate report. This process likens to that used in Paredes
v. State, 462 S.W.3d 510 (Tex. 2015).
DNA instead of drugs was being analyzed in Paredes. And the analyst issuing the
report in question did so after conducting an independent review of raw data generated
by a computer. Though others were involved in preparing the blood sample and inserting
it in a machine (computer) that performed the actual analysis, the computer itself simply
generated raw data that the testifying expert had to analyze to form the opinion within the
ultimate report. The Paredes court observed that the Confrontation Clause does not
mandate that everyone whose testimony may be relevant in establishing the chain of
custody, the authenticity of the sample, or the accuracy of the testing device must actually
testify. Paredes, 462 S.W.3d at 518 (quoting Melendez-Diaz v. Massachusetts, 557 U.S.
305, 311 n.1, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)). It also distinguished the
situation before it from those where the testifying expert simply relies on conclusions from
another analyst’s report in forming his or her own conclusion. Id. Instead, the testifying
expert in Paredes reviewed raw data generated by the computer and extrapolated an
opinion from it. Id. That independent analysis of raw data by the testifying expert
removed the circumstances from the throes of the Confrontation Clause. That raw data
was not the functional equivalent of live testimony, according to the court, because it “did
not come from a witness capable of being crossed-examined” but “from a computer.” Id.
at 519. The same is no less true here.
Though humans were involved in preparing the substance for analysis, the
analysis was done by a machine. That machine derived raw data, i.e., waveforms, which
were independently compared to known waveforms of specific controlled substances.
Deiss conducted that independent comparison after checking upon the propriety of the
steps leading to the machine developing the raw data. So, like the trial court in Paredes,
the trial court at bar also had before it a testifying expert whose report was derived by
independent analysis of raw data generated by a machine. Consequently, we have no
basis to conclude that the trial court abused its discretion in overruling the Confrontation
Clause objection directed at Deiss’s report. Colbert v. State, No. 03-17-00558-CR, 2019
Tex. App. LEXIS 1720, at *6 (Tex. App.—Austin Mar. 7, 2019, pet. ref’d) (mem. op., not
designated for publication) (applying the abuse of discretion standard to review a decision
overruling a Confrontation Clause objection).
Issue Three – Charge Error
Next, appellant asserts that the trial court erred in failing to define “with intent” in
the jury charge. We overrule the issue.
No one objected to the absence of the definition. Assuming arguendo that the
definition was law of the case necessitating definition, its omission was reversible only if
appellant suffered egregious harm. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim.
App. 2019). Such harm occurs when the default deprived the appellant a fair and impartial
trial. Id.; accord Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020) (stating
that one suffers egregious harm when the omission affects the very basis of the case,
deprives the defendant of a valuable right or vitally affected a defensive theory). We
conducted the requisite valuation here and cannot conclude that the omission affected
the very basis of the case or otherwise denied appellant a fair and impartial trial.
As previously mentioned, ample evidence supported a finding that appellant acted,
at the very least, as a party to the delivery. He was offered up as collateral by his
compatriot as she sought to complete the transaction, knew of Dotson’s purpose, went
with her on a multi-hour drive to secure the drug, participated in the negotiations while
seated inside the apartment, possessed the drug before giving it to Dotson for actual
delivery to the informant, and even wished the informant a happy birthday. Appellant
knew the plan, travelled with Dotson to effectuate it, and was actually a link in the chain
of delivery to the informant. We have no doubt that he aided in the commission of the
crime with the conscious desire or objective to assist Dotson commit the crime. See TEX.
PENAL CODE ANN. § 6.03(a) (West 2011) (stating that a person acts intentionally, or with
intent, with respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result). So, omitting
the definition of “with intent” from the charge did not deprive him of a fair trial by allowing
the jury to convict him as a party without the requisite evidence of intent to assist. The
jury may not have been told what “intent” meant but they nonetheless had the requisite
basis to find his actions were coupled with such intent.
Issue Four – Charge Error
Appellant next complains of supposed charge error by contending that the trial
court’s reference to direct and circumstantial evidence were comments on the weight of
the evidence. We overrule the issue.
The alleged error consisted of the trial court stating in its charge that 1) a “fact may
be established by direct evidence or by circumstantial evidence, or both”; 2) a “fact is
established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heard the words spoken”; and, 3) a “fact is established by
circumstantial evidence when it may be fairly and reasonably inferred from other facts
proved.” (Emphasis added). Like the alleged charge error addressed in the previous
issue, this one too appeared without complaint by anyone. Thus, it is reversible only if it
denied appellant a fair and impartial trial, Chambers, supra, or affected the very basis of
the case. Gonzalez, supra. It did neither. Indeed, a like instruction was found to be
nothing more than a “mild, neutral, and an obvious common-sense proposition.” Barron
v. State, No. 08-12-00184-CR, 2016 Tex. App. LEXIS 8811, at *24 (Tex. App.—El Paso
Aug. 12, 2016, pet. ref’d) (not designated for publication) (quoting Brown v. State, 122
S.W.3d 794, 803 (Tex. Crim. App. 2003)). This was especially so because the instruction
was accompanied by another informing the jurors that they were the exclusive judges of
the facts proved, the credibility of the witnesses, and the weight to be given the testimony.
Id. at *22. Such an additional instruction appeared in the charge at bar. We find no denial
of a fair trial or impact on the very basis of the case; that is, we find no egregious harm.
Issue Five – Charge Error
Appellant levied one final attack upon the charge. It concerned another purported
comment on the weight of the evidence. We overrule the issue.
The supposed comment occurred when the court charged the jury that 1) “[w]hile
you should consider only the evidence, you are permitted to draw reasonable inferences
from the testimony and exhibits that are justified in the light of common experience”; and
2) “[i]n other words, you may make deductions and reach conclusions that reason and
common sense lead you to draw from the facts that have been established by the
evidence.” The Austin Court of Appeals, whose precedent we must follow, considered a
like argument, viz., a like instruction and held its inclusion was not error. “[T]hese
instructions are not ‘special instructions’ and do not focus the jury’s attention on a specific
type or piece of evidence that may support an element of the offense.” Lerma v. State,
No. 03-18-00578-CR, 2020 Tex. App. LEXIS 2478, at *8 (Tex. App.—Austin Mar. 26,
2020, pet. ref’d) (mem. op. on reh’g, not designated for publication).

Outcome: We affirm the judgment of the trial court.

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