Full Opinion

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-25-00404-CR JOHN EDWARD MICKEY-HARRIS IV, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 47th District Court Potter County, Texas Trial Court No. 87906-A-CR, Honorable Dee Johnson, Presiding September 28, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ. Following a plea of not guilty, Appellant, John Edward Mickey-Harris IV, was convicted by a jury of manufacture and delivery of methamphetamine in an amount of four hundred grams or more and assessed punishment at confinement for 21 years.1 By three issues, Appellant maintains (1) the trial court reversibly erred in allowing the State to refer to whether he cooperated in the investigation which amounted to a comment on 1 TEX. HEALTH & SAFETY CODE § 481.112(f). his Fifth Amendment invocation of privilege; (2) the trial court reversibly erred in refusing to allow him to question the forensic scientist regarding the presence of adulterants or dilutants; and (3) the judgment should be modified to delete any provision for prospective recovery for costs and attorney’s fees. We affirm the judgment and modify the Bill of Cost. BACKGROUND During a routine drug interdiction operation at the Greyhound bus terminal, law enforcement conducted a search on a bus arriving from Arizona. Per procedure, passengers were offloaded and the bus was taken to the maintenance barn for routine service. When Appellant got off the bus with the other passengers, he asked the bus driver about his black bag to ensure it would remain where he left it. According to Officer Skaggs, while the bus was being serviced, he boarded and used a K-9 to conduct a free-air sniff. The K-9 alerted on Appellant’s black bag in the “very rear seat.”2 The officer searched the bag and found five vacuum-sealed bags of what appeared to be methamphetamine inside a pair of sweatpants. He conducted a presumptive test and verified it was methamphetamine. He secured the methamphetamine and replaced it with similar-weight concrete to mimic the weight of the narcotics. He then contacted Corporal Huerta—the on-call narcotics agent. Corporal Huerta testified he and Officer Skaggs devised a ruse to identify the owner of the black bag. After the bus returned to the terminal, Corporal Huerta posed as 2 The seat was near the bus restroom and the defense theorized that many passengers walk past that seat during a long journey to use the restroom. 2 a Greyhound employee, announced there was a mechanical issue, and asked passengers to re-enter the bus and collect their belongings until the repair was completed.3 Body cam footage showed Appellant boarding with the other passengers and upon exiting, he was carrying the black bag on his shoulder.4 Corporal Huerta described Appellant to Officer Skaggs as a “black male, gray hoodie, black pants.” Officer Skaggs and another officer then entered the foyer of the terminal and saw Appellant near a vending machine. He had the bag over his shoulder but dropped it on the floor when he noticed the officers approaching. Officer Skaggs arrested Appellant and handcuffed him. When Appellant asked, “what’d I do?” he was told everything would be explained later. A different officer walked him to a patrol vehicle to transport him to the police station. ISSUE ONE—FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION Appellant asserts the State was permitted to question Corporal Huerta on Appellant’s lack of cooperation during the investigation. He argues this is tantamount to a comment on an accused’s post-arrest silence which violates the privilege against self- incrimination. We disagree. Questioning a witness in the jury’s presence about a defendant’s lack of cooperation during an investigation may constitute a comment on the defendant’s post- 3 The passengers were told belongings had to be removed to avoid any liability for items that might be reported missing. 4 During the punishment phase, Appellant testified the bag was given to him in Phoenix by a man named Armani Johnson, but Appellant insisted he was unaware of the contents of the bag. According to Appellant, Johnson did not pay him anything but did purchase him a bus ticket to Detroit. 3 arrest silence in violation of his Fifth Amendment right against self-incrimination. Myers v. State, No. 06-12-00156-CR, 2013 Tex. App. LEXIS 5489, at *11–12 (Tex. App.— Texarkana May 13, 2013, pet. ref’d) (mem. op., not designated for publication) (citing Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995)). Such a comment does not, however, result in automatic reversal. Id. An instruction to disregard generally cures admission of improper evidence except in extreme cases. Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988). The door to a defendant’s failure to testify is closed to the prosecution and the power to open it lies with the defendant. Hunter v. State, 956 S.W.2d 143, 145 (Tex. App.—Amarillo 1997, pet. ref’d). Also, under the doctrine of invited error, an appellant cannot complain on appeal about testimony elicited by his counsel. Prytash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). During Corporal Huerta’s cross-examination by defense counsel, he was asked if, during the ruse to identify the owner of the black bag, there was a method for determining if Appellant was aware of the contents of the bag. He answered “[n]o.” The jury was then released for lunch. In the jury’s absence, the trial court held a discussion initiated by the State on whether defense counsel opened the door to questioning the witness on Appellant’s awareness of the contraband and if he refused to answer. Defense counsel countered that her queries were related solely to investigative procedure and did not open the door to show Appellant refused to cooperate which would implicate his right not to be questioned without counsel. After more discussion, the trial court agreed with the State that Appellant’s defensive theory was his unawareness of the contraband and that the 4 State should be allowed to question Appellant on whether he was aware the methamphetamine was in the black bag. The State noted it was only going to ask “[w]as [Appellant] cooperative with the investigation?” The court replied, “I think you can ask that.” The court did not equate such a question with invocation of the Fifth Amendment right against self-incrimination and announced it would not allow questions on Miranda or invocation of privilege. After further discussion on other matters, the State asked Corporal Huerta, “[w]as the defendant cooperative in the investigation?” He answered “[n]o, he was not.” On recross-examination, Corporal Huerta expressed confusion regarding the timing of Appellant’s uncooperativeness. Defense counsel rephrased and asked [w]as that point when you determined that you felt he was not being cooperative, was that before or after his arrest?” The witness answered simply “[b]efore.” The critical portion of Corporal Huerta’s testimony was that Appellant was uncooperative before being arrested. The spirited discussion leading to the court’s ruling occurred outside the jury’s presence. The Fifth Amendment protection against self- incrimination applies post-arrest. Thus, the right against self-incrimination was not triggered. The trial court did not err in permitting the State to ask whether Appellant was cooperative under the circumstances presented. Issue one is overruled. ISSUE TWO—EXCLUSION OF EVIDENCE OF ADULTERANTS AND DILUTANTS Appellant contends the trial court committed reversible error in refusing to allow him to question the forensic scientist regarding the presence of adulterants or dilutants. He asserts information on adulterants or dilutants “cut[s] to the heart of the matter” and 5 deprived him of a critical defensive theory to undermine an element of the State’s case. We disagree. We review a trial court’s ruling excluding evidence for abuse of discretion. State v. Heath, 696 S.W.3d 677, 703 (Tex. Crim. App. 2024). The court’s decision will not be overturned on appeal unless it falls outside of the zone of reasonable disagreement. Id. (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)). State’s Exhibit 21, the crime laboratory report, shows one of the plastic bags contained “451.46 grams (+/- 0.09 grams) net weight” of methamphetamine.5 The report also shows the four other bundles containing a white crystalline substance were not analyzed “in view of other exhibits.” The forensic scientist testified the crime laboratory only “tests the minimum number of items necessary to reach the highest felony offense.” The single bundle she tested exceeded 400 grams classifying it as the highest first degree felony with a minimum punishment of 15 years. TEX. HEALTH & SAFETY CODE § 481.112(f). During cross-examination, Appellant sought to question the scientist on quantitative versus qualitative analysis to assist the jury in determining the actual amount of methamphetamine present. She was asked whether she analyzed the methamphetamine to determine its purity. She explained she only conducts a qualitative analysis to identify the substance but does not conduct a quantitative analysis to determine purity. At a bench conference, the State objected to any questions on adulterants or dilutants as not being relevant. Defense counsel sought to determine whether the witness 5 The exhibit was admitted over defense counsel’s objection of improper predicate. 6 was aware that dilutants and adulterants may be used in the methamphetamine and whether the other four untested bundles contained methamphetamine or “potentially an adulterant or dilutant to be used separately.” The trial court did not permit further questioning explaining that the law includes adulterants and dilutants in determining the aggregate weight of a controlled substance. The State is no longer required to prove the weight of the controlled substance and the weight of adulterants or dilutants that constitute the mixture for purposes of possession. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003) (emphasis in original). It has to prove only that the aggregate weight of the controlled substance mixture, including adulterants or dilutants, equals the alleged minimum weight. Id. “The Legislature did away with the requirement for this sort of hyper-technical analysis when it amended the definition of ‘adulterant or dilutant.’” Id. (citing TEX. HEALTH & SAFETY CODE § 481.002(49)). “The literal meaning of the legislature’s adulterant and dilutant definition is that any substance that is added to or mixed with a controlled substance, regardless of when, how, or why that substance was added, may be added to the aggregate weight of the controlled substance as an adulterant or dilutant.” See Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005). See also Harris v. State, No. 07-17-00292-CR. 2019 Tex. App. LEXIS 3442, at *9 (Tex. App.—Amarillo April 29, 2019, no pet.) (mem. op., not designated for publication) (noting the State is not required to prove the pure amount of the controlled substance, absent any adulterants or dilutants). In the underlying case, the forensic scientist established the bundle she tested contained at a minimum, an aggregate weight of 400 grams of methamphetamine, including adulterants or dilutants. Once evidence of the highest possible felony was 7 presented, it was unnecessary and irrelevant to question the witness further on adulterants or dilutants. Any testimony by the forensic scientist on the content of the untested bundles would have been speculative and was properly excluded by the trial court. Acevedo v. State, 255 S.W.3d 162, 169 (Tex. App.—San Antonio 2008, pet. ref’d). We conclude the trial court did not abuse its discretion in excluding further questioning on adulterants or dilutants. Issue two is overruled. ISSUE THREE—PROSPECTIVE COSTS AND FEES Appellant requests the Bill of Cost be modified to delete any provision for prospective costs and for attorney’s fees. The State notes the trial court’s Article 42.12 Addendum declares Appellant indigent and waives the fine and all costs. Thus, it does not oppose deletion of any language regarding future payment of costs and attorney’s fees. Neither does the State object to deletion of a charge of $290 in court costs and a credit of the same amount. At the bottom of the Bill of Cost, are the following notes:6 “[O]ther fees may be applied at a later date: Upon this office reviewing the Judgment, Probation Order, Order Deferring, and Order to Pay court appointed attorney. By Statute other fees may apply. Transaction fee of $2.00 may be assessed on each payment toward the fine and court costs assessed. Time Payment Fee-Shall be waived, if the full payment is made on or before the 31st day after the pleading date. Attorney fees are not collected until the court finds the defendant able to pay, pursuant to TXCCP Art. 26.05 section (g). 6 We note Appellant was not assessed a fine. 8 We agree with Appellant that any references to future payments for costs and fees be deleted. Fugett v. State, 721 S.W.3d 120, 123 (Tex. App.—Amarillo 2025, no pet.). Issue three is sustained. CONCLUSION The trial court’s judgment is affirmed. The Bill of Cost generated on December 16, 2025, is modified to delete any reference to payment of future costs and attorney’s fees. The district clerk is directed to prepare and file an amended bill of cost reflecting the modifications made herein and provide copies to this Court, Appellant, and the Institutional Division of the Texas Department of Criminal Justice. This modification order extends to any order to withdraw funds from Appellant’s inmate account. Alex Yarbrough Justice Do not publish. 9