Opinion
No. 09-02-307 CR
Submitted on August 18, 2003.
Opinion Delivered August 27, 2003. Do Not Publish.
On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 85449
Before McKeithen, C.J., Burgess, and Gaultney, JJ.
MEMORANDUM OPINION
A jury found appellant guilty of Possession of a Controlled Substance. Appellant pleaded true to enhancement allegations and was sentenced by the trial court to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of fifteen years. After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978), concluding there was no arguable error to support an appeal. Appellant then filed a pro se brief. Appellant's lone issue for review contends the trial court abused its discretion by allowing into evidence a supervising chemist's non-expert testimony based on a laboratory report prepared by her subordinate. The State's brief agrees with appellant's assessment and not only concedes error but also harm. We have examined the governing case cited by both parties, Cole v. State, 839 S.W.2d 798 (Tex.Crim.App. 1990), in light of the testimony contained in the reporter's record. We agree with the parties that the holdings in Cole precluded the admissibility of Ms. Bates' testimony as to the results of the laboratory testing of the suspected contraband which was the basis for appellant's prosecution. We also agree with the State that in light of the evidence elicited at trial, the holding in Caw v. State, 851 S.W.2d 322, 324 (Tex.App.-El Paso), pet. ref'd, 864 S.W.2d 546 (Tex.Crim.App. 1993), is not applicable. We also find the circumstances present in Martinez v. State, 22 S.W.3d 504 (Tex.Crim.App. 2000), are not present in the instant record. Ms. Bates' testimony that the suspected contraband was cocaine was not based upon her personal expert opinion. The record indicates that Ms. Bates was merely reading from the laboratory report that was prepared by her subordinate, Melissa Taylor. This was not, therefore, "the present opinion of a testifying witness[.]" Id. at 508. We also agree with the State that appellant's substantial rights were affected by the introduction of the testimony as the gravamen of the offense was the possession of a contraband substance, to-wit: cocaine. See Tex.R.App.P. 44.2(b); Tex. Health Safety Code Ann. § 481.115(a),(b) (Vernon 2003). Proof of the contraband nature of the substance allegedly possessed by appellant came in from no other source. We therefore sustain appellant's lone issue for review. The judgment of the trial court is reversed and the cause remanded to the trial court for further proceedings.4 REVERSED AND REMANDED .