Edward Martinez v. The State of Texas--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION

No. 04-07-00147-CR

Edward MARTINEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 38th Judicial District Court, Medina County, Texas

Trial Court No. 05-06-9356-CR

Honorable Antonio G. Cantu, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Karen Angelini, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: December 19, 2007

AFFIRMED

Appellant Edward Martinez was found guilty by a jury of the offense of possession of a controlled substance and the court assessed punishment at two years confinement in the Institutional Division of the Texas Department of Criminal Justice. Martinez asserts on appeal that (1) the State failed to prove chain of custody of the controlled substance and (2) the evidence was legally and factually insufficient to convict Martinez of possession. We affirm the judgment of the trial court.

Factual Background

Devine Police Officer Jason Anderson stopped Appellant Edward Martinez for reckless driving on January 2, 2005. After concluding that Martinez was intoxicated, Anderson placed Martinez under arrest for Driving While Intoxicated. During the subsequent search incident to arrest, Anderson seized, among other things, a wallet and two wadded-up dollar bills. Anderson testified that he stuffed the wadded-up dollar bills into the wallet and placed all of the seized items in the patrol car s console. Martinez was transported to the Devine police station and the seized items were placed on the patrol desk. As per protocol, Anderson filled out the booking sheet, inventoried the property and placed Martinez s items in a plastic bag. Another officer then transported Martinez and the plastic bag containing the seized items to the Medina County jail.

Officer Rolando Martinez was the officer in charge of inventorying Martinez s personal effects at the jail. Martinez s property was placed on the booking desk, in a property bag bearing his name. Officer Martinez testified there were two one dollar bills in the wallet and when he opened up one of the dollar bills that was wadded-up, he found a plastic baggie with a white powdery substance. The plastic baggie was given to the Devine Police Department.

The evidence was logged into the Devine Police Department s evidence journal and placed in an evidence locker and subsequently packaged with a submission form, sealed and sent to the Texas Department of Public Safety s Crime Lab for testing. Lou Haby, a forensic chemist with the DPS Crime Lab, testified that he received two items for analysis, a small baggie with white substance, and a one dollar bill. Analysis confirmed the white substance was methamphetamine.

Chain of Custody

Martinez asserts that the State failed to properly prove the chain of custody of the methamphetamine.

A. Waiver

The general requirement for preservation of error is set forth in Rule 33.1(a) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 33.1(a). Succinctly, the Rule requires a timely, specific objection and a ruling by the trial court to preserve a complaint for appellate review. Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Although there were questions on cross-examination regarding the proper chain of custody, Martinez s trial counsel never lodged an objection regarding the chain of custody. In fact, all six of the State s exhibits, including pictures, packaging and the lab report, came in without objection. Accordingly, Martinez failed to preserve anything for review.

Even assuming Martinez preserved error, the record supports the conclusion that Martinez s claim is without merit.

B. Standard of Review

We review a trial court s ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). As long as the trial court s ruling was within the zone of reasonable disagreement, we will not interfere with the ruling. Id.; Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990).

 C. Analysis

Although the Texas Rules of Evidence do not specifically define the term chain of custody, Rule 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a); Silva v. State, 989 S.W.2d 64, 68 (Tex. App. San Antonio 1998, pet. ref d) (explaining that chain of custody goes to the weight, not admissibility).

Evidence may be authenticated or identified by different methods, including testimony by a witness with knowledge that a matter is what it is claimed to be. Tex. R. Evid. 901(b)(1). The court properly admits evidence when a reasonable juror could find that the evidence was authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996). The State proved chain of custody in the present case based on the testimony of the arresting officer, the booking officer, the officer mailing the evidence to the DPS Crime Lab and the chemist. The defense implied that the evidence might have been commingled at some point. However, no specific evidence of commingling was produced. Absent from the record is any testimony suggesting that the evidence was tampered or comingled. Any alleged gaps in the chain do not affect the admissibility of the evidence, only the weight to be given to it. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Dossett v. State, 216 S.W.3d 7, 17 (Tex. App. San Antonio 2006, pet. ref d). Thus, defense counsel s argument on appeal that there was a possibility of commingling is without merit. Lagrone, 942 S.W.2d at 617, Dossett, 216 S.W.3d at 17. We, therefore, overrule this issue on appeal.

Legal Sufficiency and Factual Sufficiency

Having determined that the evidence was admissible at trial, Martinez next asserts that the evidence was legally and factually insufficient to support a conviction of possession of a controlled substance.

A. Standard of Review

When reviewing the legal sufficiency of the evidence, the court examines the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

In a factual sufficiency review, we consider all the evidence in a neutral light and only reverse if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We must, however, avoid substituting our judgment for that of the fact-finder, the sole judge of the weight and credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

B. Possession

When an accused is charged with unlawful possession of a controlled substance, the prosecution must prove: 1) that the accused exercised care, control and management over the contraband; and 2) that the accused knew the matter possessed was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988); see also Tex. Pen. Code Ann. 1.07(a)(39) (Vernon 2003).

The fact that the baggie of methamphetamine was found inside Martinez s wallet is sufficient to show Martinez exercised exclusive control over the drugs based on his ownership of the place in which it was found. See Frazier v. State, 480 S.W.2d 375, 381 (Tex. Crim. App. 1972) (fact that controlled substance found in jacket that defendant began to put on was found sufficient to warrant jury s finding of guilt); Baeza v. State, 804 S.W.2d 612, 616 (Tex. App. El Paso 1991, pet. ref d) (concluding that the fact Appellant s wallet contained both his identification and the cocaine provides a direct link between Appellant, the contraband and the place where the contraband was found). The fact that the methamphetamine was not found by the arresting officer, but by a different officer, does not affect the sufficiency of the evidence. Additionally, because a rational juror could have found each element beyond a reasonable doubt and the evidence is not so weak so as to be clearly wrong or unjust, the evidence was legally and factually sufficient to convict Martinez for possession of methamphetamine. Accordingly, we overruled this issue on appeal.

Conclusion

Martinez failed to preserve error regarding his chain of custody complaint on appeal. Moreover, even assuming preservation, the evidence substantiates the trial court s admission under Rule 901(a). The State sufficiently proved chain of custody and Martinez made no showing of a possibility of commingling or tampering of the evidence. Furthermore, the evidence is legally and factually sufficient to support Martinez s conviction. The judgment of the trial court is affirmed.

Rebecca Simmons, Justice

DO NOT PUBLISH