Jackson, Darryl G. v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed April 3, 2003

Affirmed and Memorandum Opinion filed April 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00619-CR

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DARRYL G. JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 894,792

M E M O R A N D U M O P I N I O N

Darryl Jackson appeals a conviction for possession of cocaine on the grounds that the trial court erred in denying his request for an instruction on a lesser included offense and the evidence is legally and factually insufficient to support his conviction. We affirm.

Background

On November 24, 2001, Houston Police Officer John Thornberg responded to a call about a possible stolen vehicle in a ditch near the 5100 block of South Wind. After he had been at the scene for some time, Thornberg needed to use the restroom, so he walked toward a convenience store. As he walked to the convenience store, he saw appellant standing nearby. Appellant appeared to be studying something in his hands, which Officer Thornberg suspected were rocks of cocaine. When Officer Thornberg asked appellant what he was doing, appellant looked at the officer, then began to run. As appellant ran away, he threw the rocks from his hands. Officer Thornberg caught up with appellant, arrested him, then returned to the area where the rocks had been thrown. Thornberg discovered seven rocks, which field-tested positive for cocaine.

Sharmista Patel, a chemist with the Houston Police Department crime lab, testified that when she obtained the evidence envelope, she found no evidence of tampering. She and Officer Thornberg both testified that the chain of custody had been maintained. When Patel received the substance, she visually checked it and determined that all the rocks were the same. To test the substance, Patel scraped a small amount from each rock, combined the scrapings, and analyzed the material. The substance tested positive for cocaine. Patel testified that she does not count rocks when they are brought to her because they can easily break and the count would not be accurate. Patel further testified the total weight of the rocks was 1.1 grams. She also stated that water tends to evaporate from crack cocaine and it decreases in weight the longer it is stored.

Lesser Included Offense Instruction

In his first issue, appellant contends the trial court erred when it denied his request for a lesser included offense instruction of possession of less than one gram of cocaine. When reviewing such a contention, we apply a two-pronged test. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 919 (1993). Second, there must be some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1079 (1998). Appellant=s first issue concerns application of the second prong of the test. In applying this prong, we must examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000). The evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2000).

Appellant contends he was entitled to a lesser included offense instruction because there was evidence at trial that he possessed less than one gram of cocaine. He first argues that it was possible that two rocks of crack cocaine were added to the evidence bag between the time it was secured by Officer Thornberg and tested by Patel. Officer Thornberg testified that he recovered seven rocks of crack cocaine from the location where appellant threw the rocks. The evidence bag at trial contained nine rocks. When Thornberg identified the evidence at trial, he stated, AThey have been a little busted up, but it appears to be the same ones, yes.@ Both Thornberg and Patel testified that crack rocks are fragile and prone to breaking apart.

In support of his contention that the record supports an instruction on the lesser offense, appellant cites the following cross-examination testimony of Officer Thornberg:

Q. Isn=t it a possibility if you B because somehow we have gone from 7 rocks to 9 rocks. Is there possibly a chance that somewhere down the line someone with access could have added 2 rocks? A possibility?

A. A very very slim possibility. If someone was going to tamper with something, I would imagine that they would be taking instead of adding in.

Q. But is that a possibility?

A. It=s a very remote one, yes.

Contrary to appellant=s assertion, Officer Thornberg=s testimony is not evidence that appellant could have possessed less than one gram of cocaine; it is merely an acknowledgment of a very remote possibility. Appellant offered no evidence that cocaine was added to the evidence bag.

Second, appellant contends he is entitled to a lesser included offense instruction because Patel presented evidence that appellant possessed less than one gram of cocaine. Patel testified that she scraped each rock of cocaine, combined the scrapings, and tested them. She did not count the rocks because they could easily break and the count would not be reliable. She also visually checked the rocks of cocaine and stated they all looked alike.

Appellant argues that because Patel combined the scrapings from all the rocks, it is possible one or more of the rocks does not contain cocaine. To the contrary, there was no evidence from any source that one or more of the rocks did not contain cocaine. The only fact issue Patel=s cross-examination testimony arguably raises is that she did not independently test each substance. See Enriquez, 21 S.W.3d at 280. Chemical analysis of contraband by testing representative samples does not, by itself, constitute evidence that the defendant possessed a lesser quantity of the contraband. Id.

Viewing the record as a whole, we find no evidence upon which the jury could have rationally found appellant guilty only of possession of less than one gram of cocaine. Appellant=s first issue is overruled.

Sufficiency of the Evidence

In his second issue, appellant contends the evidence is legally and factually insufficient to support the conviction. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance and the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams. Tex. Health & Safety Code Ann. '481.1158).

In support of his insufficiency claim, appellant contends the evidence was sufficient to show he possessed one gram of cocaine, but not more than one gram. First, appellant contends the evidence shows that two rocks of cocaine were added to the evidence bag after the cocaine was recovered from appellant. Second, he contends the chemist took scrapings from all the rocks of cocaine, so she could not determine if one or more of the rocks did not contain cocaine.

Absent evidence of tampering, most questions concerning the care and custody of a substance go to the weight of the evidence, not its admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 917 (1997). Here, the chain of custody was proved from the scene to the laboratory, and to the courtroom. The record does not reflect that rocks were added to the evidence bag. Patel testified that crack cocaine is fragile and often breaks up between the time it is recovered and the time it is tested. Further, Officer Thornberg testified the rocks appeared to be Abusted up.@With regard to the testing method used by the chemist, Patel testified she visually checked the rocks and determined they were the same. Testing substances by random sampling goes to the weight the jury may give to the tested substance in determining whether the untested substance is the same as the tested substance. Gabriel v. State, 900 S.W.2d 721, 722 (Tex. Crim. App. 1995). Viewing the evidence in the light most favorable to the verdict, we find sufficient evidence to support the conviction.

Appellant next contends the evidence is factually insufficient to support his conviction. In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Appellant presented testimony from David Luther, a former police officer. Luther weighed the cocaine and found that it weighed one gram. Luther weighed the evidence after Patel tested the substance and after the evidence had been stored for six months. During her testimony, Patel testified that crack cocaine tends to decrease in weight due to water evaporation. Luther also testified there were nine rocks in the bag. David Greer testified that he saw appellant in the area and that appellant pointed out the stolen truck in the ditch. Officer Mark Stewart of the Houston Police Department testified he was dispatched to take fingerprints from the stolen truck. He found no drugs in the truck. Lanelle Gadison testified she was in the area that day and saw appellant standing near the convenience store holding a beer bottle.

The jury, as the trier of fact, Awas the sole judge of the credibility of witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury could choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).By its verdict, the jury chose to believe the State=s witnesses. Having reviewed all of the evidence, we find it is not so weak as to render the jury=s verdict manifestly unjust, nor is it greatly outweighed by contrary evidence. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed April 3, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish CTex. R. App. P. 47.2(b).