In the Matter of J.H.--Appeal from 386th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00464-CV
IN THE MATTER OF J.H., a juvenile

From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-JUV-00757
Honorable Laura Parker, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 21, 2003

AFFIRMED

J.H., a juvenile, was charged with delinquent conduct by committing the offense of possession of marijuana. He originally pled not true to the charge by reason of duress, but then changed his plea to not true. Following a bench trial, the court found the charge to be true and placed J.H. on at-home probation for nine months. (1) On appeal, J.H. claims the evidence was insufficient to find that he knowingly and intentionally possessed the marijuana. He also alleges "damage to the chain of custody" renders the evidence insufficient to support the court's finding. We disagree.

Standard of Review

We review the sufficiency of the evidence under traditional standards of review. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex. Crim. App. 2000) (factual sufficiency). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

Intentional and Knowing Possession

In his first issue, J.H. claims that the State produced legally and factually insufficient evidence of intent. To have engaged in delinquent conduct, J.H. must have "knowingly or intentionally" possessed "a usable quantity of marijuana." Tex. Health & Safety Code Ann. 481.121(a)(b)(1) (Vernon Supp. 2003); Tex. Fam. Code Ann. 51.03(a)(1) (Vernon 2002). The elements of an unlawful possession charge are: (1) the accused exercised actual care, control, and management over the contraband; and (2) the accused had knowledge that the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

Both at trial and on appeal, J.H. claims he was approached by a neighbor named Ely as he waited for the school bus. J.H. alleges that Ely handed him a small aluminum foil-wrapped package, instructed him to deliver it to another student at school, and threatened to shoot him if he did not comply. J.H. claims that under the compulsion of Ely's threat, he placed the package in his shoe and took it to school. J.H. argues that he did not know the material contained in the opaque wrapping was marijuana, and the trial court erred in finding the charge true when he lacked the requisite intent.

Both Jesse Quiroga, a police officer assigned to J.H.'s campus, and Jesus Marquez, the principal of J.H.'s middle school, testified that when a classmate and close friend of J.H.'s was arrested at school for possession of marijuana, the student blurted out, "What about [J.H.]?" Quiroga and Marquez then called J.H. to the principal's office and asked if he had anything he shouldn't have. J.H. initially denied having anything, but then pulled the package from his shoe. Quiroga tested the contents of the package at the school's facilities and determined that the package contained marijuana. After his arrest, J.H. told Quiroga that while he was riding his bike, "some guy" gave him the marijuana and told him to sell it. J.H. told Quiroga that the man had a gun and said he would shoot him if he didn't sell the marijuana. Quiroga testified that he found J.H.'s story unbelievable.

After viewing all the evidence in the light most favorable to the verdict, we determine that a rational trier of fact could find beyond a reasonable doubt that J.H. exercised care, control, and management over material he knew was contraband. The evidence is therefore legally sufficient. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Dewberry, 4 S.W.3d at 740.

Circumstantial evidence, including the surrounding circumstances, acts, words, and conduct, may be used to show that an accused knowingly possessed a controlled substance. See Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). Quiroga and Marquez testified that J.H. had control of the foil-wrapped package hidden in his shoe. This evidence affirmatively links the accused to the contraband. Additionally, the fact that the marijuana was hidden supports a finding that J.H. knew he possessed something he shouldn't. When a trial court's findings are based on a determination of credibility, we show almost total deference to the trial court's factual findings. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). After examining all the evidence in the neutral light of a factual sufficiency review, we hold that sufficient evidence supports the trial court's finding that J.H. knowingly or intentionally possessed a usable quantity of marijuana. J.H.'s first issue is therefore overruled.

Chain of Custody

In his second issue, J.H. argues that "critical damage to the chain of custody renders the evidence legally and factually insufficient to support the court's finding...." Based on the arguments raised in J.H.'s briefing of this issue, we interpret this issue as a challenge not only to the legal and factual sufficiency of the evidence, but also as an evidentiary challenge to the trial court's decision to admit State's exhibit one, the marijuana taken from J.H. However, the trial court has discretion to determine the sufficiency of a predicate and, absent an abuse of discretion, the trial court's decision will not be reversed. See Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984). Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. Tex. R. Evid. 103(a). Therefore, we will not disturb the trial court's judgment unless the record shows the trial court's ruling falls outside the zone of reasonable disagreement and the exclusion of that evidence had a substantial and injurious effect on the disposition of J.H.'s case. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999).

Officer Quiroga was present in Principal Marquez's office when J.H. produced the foil-wrapped package. Quiroga testified that after J.H. handed the package to Marquez, the principal handed the package to him. When the package was opened, Quiroga believed it to be marijuana, so he took it to his office and tested it with a N.I.K. kit. He stated that the contents tested positive for marijuana in a usable amount of under two ounces. Furthermore, Quiroga testified that the State's exhibit was the actual foil and marijuana taken from J.H. This is legally sufficient evidence to support the court's finding beyond a reasonable doubt that J.H. possessed a usable amount of marijuana. See Dewberry, 4 S.W.3d at 740.

J.H. argues that the chain of custody was shown to be broken when, on cross-examination, Officer Quiroga identified State's exhibit one only by the red tape on the envelope's exterior. J.H. claims that no witness could testify that the material tested by the medical examiner was that taken from him, and not from another arrestee or his classmate who was arrested on the same day with a similar amount of marijuana. Without citation to the record, J.H. alleges that "by the end of his testimony, Quiroga could not positively identify State's Exhibit One." Such an assertion is not supported by the record. What the record does indicate, however, is that Quiroga placed the package taken from J.H. in a department-issued bag, sealed the bag with a sticker, initialed the sticker, and gave the entire bag to the transport officer. Quiroga stated that department policy requires the transport officer to take evidence from the collecting officer to the police station locker room and lock it in a steel box. Policy dictates that the evidence remains locked in the box until a locker room officer transports it to the receiving clerk at the medical examiner's office. Neither the transport officer, locker room officer, nor receiving clerk were called to determine whether this policy was followed, but J.H. does not challenge any of their roles in the chain of custody. The medical examiner was called to testify, and he stated that the sample he tested contained 0.39 grams of marijuana. The medical examiner's initials are the last ones to appear on State's exhibit one.

Rule 901 governs the authentication of evidence, and only requires a showing that satisfies the trial court that the item in question is what the State claims. See Tex. R. Evid. 901; Avila v. State, 18 S.W.3d 736, 739 (Tex. App.--San Antonio 2000, no pet.). Here, the State presented sufficient evidence to authenticate its exhibit. See Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996). We conclude the information elicited from the State was sufficient for the trial court to have found that the marijuana produced by the State was what it purported to be, that is, the marijuana produced by J.H. in Principal Marquez's office. The trial court did not abuse its discretion in entering State's exhibit one into evidence as the marijuana taken from J.H.

After considering J.H.'s arguments and reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of J.H.'s charge beyond a reasonable doubt. See Dewberry, 4 S.W.3d at 740. The evidence is therefore legally sufficient. Furthermore, after reviewing all the evidence in a neutral light, we cannot say the evidence is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. See Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex. Crim. App. 2000). We therefore overrule J.H.'s second issue and affirm the trial court's judgment in all respects.

Catherine Stone, Justice

1. Although the Honorable Laura Parker signed the order committing J.H. to at-home probation, the Honorable Andy Mireles presided over the trial.