Patrick Ash v. The State of Texas--Appeal from County Court at Law No 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PATRICK ASH,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00046-CR

Appeal from the

County Court at Law No. One

of El Paso County, Texas

(TC# 20020C18141)

O P I N I O N

This is an appeal from a jury conviction for the offense of possession of marihuana in an amount of two ounces or less. The court assessed punishment at a fine of $750. We affirm.

I. SUMMARY OF THE EVIDENCE

The evidence at trial revealed that on November 22, 2002, at about 9:14 p.m., Officer Adrian Armendariz and Officer Jon Eric Romero of the El Paso Police Department observed two vehicles traveling westbound as the officers traveled eastbound on James Watt Street. The vehicles were traveling side-by-side on a two-lane, two-way road. As the vehicle that Appellant was driving was on the wrong side of the road, they stopped that vehicle. Officer Romero saw two passengers in the vehicle. As he approached them, he noticed a slight odor of marihuana. Warrant checks were run on all the occupants of the car and the check revealed that Appellant s driver s license was suspended and he was arrested for driving with a suspended driver s license. The officers performed a quick pat-down search for weapons before placing him in the car, and they found nothing.

Upon arrival at the police station, Officer Romero performed a thorough search of Appellant and a baggie of marihuana was found in the insole of his left shoe. Officer Romero testified that he weighed the marihuana and did the requisite paperwork. He tagged the marihuana exhibit, put it in an envelope, and put it in the narcotics locker to be picked up and tested.

Rafael Tamez, a police toxicologist with the El Paso Police Department crime lab, testified that at the time he received the envelope, he placed his initials on both the envelope and the bag which contained the substance. He brought the envelope, identified as State s Exhibit 1, to court. Tamez testified that he tested the substance and it proved to be marihuana. The exhibit was not admitted into evidence.

The witness was then asked by the prosecutor for the name of the person from whom the marihuana was seized, and Appellant objected on the ground of hearsay. The prosecutor then established the business record predicate for the chain of evidence form and offered that form into evidence. Appellant objected that the form was not a business record in that it was a police report being utilized for the purpose of litigation. Appellant s objection was overruled and the form was admitted as State s Exhibit 2. The writing on the form included Appellant s name, the date of the offense and the police case number. It showed the results of Tamez s tests--that the substance was marihuana weighing 0.21 ounces.

The prosecutor then offered another chain of evidence form into evidence as State s Exhibit 3. Appellant objected that the form was hearsay. Tamez testified that the form was the chain of evidence form that was submitted with the marihuana to the lab, and that State s Exhibit 3 was the first page of the form, and State s Exhibit 2 was the second page of the form. The trial court sustained Appellant s objection because the writing on the form did not belong to Tamez and State s Exhibit 3 was not admitted into evidence at that time. Tamez then testified over Appellant s objection that the name on State s Exhibit 2 was Patrick Ash. The State then rested. Appellant then moved for a directed verdict stating that the State had failed to prove the chain of evidence and that there was no evidence that the substance Tamez tested was actually the substance seized from Appellant. The trial court made an inquiry to determine if Tamez had testified as to the weight of the marihuana and the State responded that the weight was on the chain of evidence form. The court also questioned if the marihuana had been affirmatively linked to Appellant. The prosecutor responded that the information was on State s Exhibit 3 which the court had not allowed into evidence. The prosecutor asked for permission to reopen the case to allow Tamez to testified regarding the chain of evidence. The court then adjourned for the day.

The next day, after hearing argument from both parties, the court overruled Appellant s objections and allowed the State to reopen. Officer Romero testified that when he took possession of the marijuana from Appellant, he weighed it, he put the case number on the envelope, the date, his ID number and then the envelope was sealed and his initials were placed on both sides of the envelope. The envelope was then placed in the narcotics locker. Officer Romero was then shown State s Exhibit 3 and he identified it as the first page of the chain of evidence form that he filled out and had attached to the envelope with the marihuana seized from Ash. Over Appellant s objection, the court admitted State s Exhibit 3 into evidence. Officer Romero testified that State s Exhibit 3 demonstrated that the substance was tested and that it was marihuana weighing 5.84 grams. The form also indicated that the witness had written his initials, demonstrating that he was the submitting officer.

Rafael Tamez then testified that the weight of the marihuana in the envelope was 0.21 ounces which was a usable quantity of marihuana. The State rested.

II. DISCUSSION

In Issue No. One, Appellant contends that the evidence was legally insufficient to support the conviction. Specifically, Appellant asserts that no one testified regarding the weight of the marihuana or that it was a usable amount. Appellant also argues that the State failed to connect the marihuana that was found by Officer Romero on Appellant to the marihuana that was tested by Rafael Tamez.

In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref d). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref d); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref d). In assessing the sufficiency of the evidence, the reviewing court must consider all the evidence that was before the jury, whether rightly or wrongly admitted. Nelson v. State, 893 S.W.2d 699, 704 (Tex. App.--El Paso 1995, no pet.).

Regarding the weight of the marihuana, there was direct evidence from Officer Romero that the marihuana weighed 0.265 ounces. The police toxicologist, Rafael Tamez, testified that the marihuana weighed 0.21 ounces. It was incumbent upon the State to prove that the marihuana weighed two ounces or less. We find that there was direct evidence concerning the weight of the marihuana.

It was also necessary for the State to prove that the marihuana was of a usable quantity. Lejeune v. State, 538 S.W.2d 775, 777-78 (Tex. Crim. App. 1976). Rafael Tamez testified that the amount of marihuana seized from Appellant was a usable quantity. The evidence is sufficient with regard to that element of the offense.

Next, Appellant asserts that the State failed to prove that the marihuana tested by Rafael Tamez was the same marihuana seized from Appellant. Therefore, the evidence was insufficient to prove that he possessed the marihuana.

In order for the results of an item tested in a laboratory to be admissible in evidence, a proper chain of custody must be established. Penley v. State, 2 S.W.3d 534, 537 (Tex. App.--Texarkana 1999, pet. ref d), cert. denied, 530 U.S. 1243, 120 S. Ct. 2689, 147 L. Ed. 2d 961 (2000); Moone v. State, 728 S.W.2d 928, 930 (Tex. App.--Houston [14th Dist.] 1987, no pet.) (citing Brown v. State, 156 Tex. Crim. 144, 240 S.W.2d 310, 311 (Tex. Crim. App. 1951); Lynch v. State, 687 S.W.2d 76, 77-78 (Tex. App.--Amarillo 1985, pet. ref d)). Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration. Stoker, 788 S.W.2d at 10; Penley, 2 S.W.3d at 537. Any gaps in the chain go to the weight of the evidence rather than to its admissibility. Stoker, 788 S.W.2d at 10; Penley, 2 S.W.3d at 537.

In the present case, there was evidence presented from Officer Romero that he tagged the evidence seized from Appellant with the police case number, the date, and his initials, and he placed it in the police narcotics locker. He identified State s Exhibit 3 as the chain of evidence form he filled out and submitted into evidence. This form included Appellant s name as well as the case number, date, and Officer Romero s initials. Therefore, the beginning of the chain of custody was established.

Rafael Tamez identified State s Exhibit 3 and State s Exhibit 2 as the complete two pages of the chain of evidence form which contained all the above-mentioned information which came with the envelope which contained the marihuana that he tested. The end of the chain of evidence was established. As no evidence was presented that the evidence was tampered with or altered, the chain of evidence is sufficient and there is sufficient evidence to show Appellant possessed the marihuana. Issue No. One is overruled.

In Issue No. Two, Appellant maintains that the court erred by allowing the State to introduce into evidence the police department s chain of evidence form because it was a police document made for litigation purposes and it did not fall within any of the hearsay exceptions. A trial court s evidentiary rulings are reviewed under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (opin. on reh g). As long as the trial court s ruling on the admissibility of the evidence is within the zone of reasonable disagreement, the ruling is not an abuse of discretion. Id.

Appellant relies mainly upon the holding in Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990) to support his contention that as the chain of evidence forms were generated by law enforcement officers, they were inadmissible hearsay not included within the business-record exception to the hearsay rule. In Cole, the report of a Department of Public Safety chemist who did not testify at trial was admitted into evidence as a business record. Id. at 799-800. The Court of Criminal Appeals held that the report was not admissible under the public record exception to the hearsay rule, because that rule specifically excludes matters observed by law enforcement officers. See id. at 804-05; Tex. R. Evid. 803(8). The Court then held that the report was barred from admission under the business records exception to the hearsay rule because it would be inconsistent to allow admittance under that rule when is was specifically barred from admission under Rule 803(8). This is so notwithstanding that fact that there is no specific exclusion to such reports under the business records exception. See Cole, 839 S.W.2d at 806; Tex. R. Evid. 803(6).

However, in Pondexter v. State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825, 118 S. Ct. 85, 139 L. Ed. 2d 42 (1997), the Court held that even though an inventory list was generated by a police officer, it was a situation where the officer was performing ordinary, routine duties regarding property taken in and out of the property room; therefore, the report was admissible as a business record. Specifically, as there were no subjective interpretations involved, the list qualified as a business record. Id.

We have a similar situation in the present case. The information contained on the chain of evidence forms involved routine information which did not involve any subjective interpretation or analysis by the police personnel and the court did not err in admitting the forms on that basis. See Johnston v. State, 959 S.W.2d 230, 239-40 (Tex. App.--Dallas 1997, no pet.).

We note that both forms contain the results of the tests performed by the toxicologists showing the weight and the determination that the substance was marihuana. This may well be the type of subjective interpretation barred under the holding in Cole. However, Tamez testified regarding the results of his testing of the marihuana. Accordingly, the proper admission of this testimony cured any possible error that may have occurred by admitting the forms. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 956, 120 S. Ct. 384, 145 L. Ed. 2d 300 (1999). Issue No. Two is overruled.

In Issue No. Three, Appellant argues that the court erred in allowing the State to reopen their case-in-chief after they had rested. Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981) provides that the trial court, shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice. Due administration of justice means the trial court should reopen the case if the evidence would materially change the case in the proponent s favor. See Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). The proffered evidence must be more that just relevant; it must actually make a difference in the case. Id. The trial court s decision is reviewed under an abuse of discretion standard. A trial court abuses its discretion if it refuses to reopen a case when the witness is present and ready to testify, the request to open has been made before the charge was read to the jury and final arguments were made, the court has some indication of what the testimony will be and is satisfied that the testimony is material and bears directly on the main issues in the case, and there is no showing thatintroduction of the testimony will impede the trial or interfere with the orderly administration of justice. See Sims v. State, 833 S.W.2d 281, 285-86 (Tex. App.--Houston [14th Dist.] 1992, pet. ref d); Gibson v. State, 789 S.W.2d 421, 423 (Tex. App.--Fort Worth 1990, pet. ref d).

Appellant maintains that as the evidence was available to the State before it rested, this was simply a matter of a mistake on the part of the State and the court erred in allowing the State to reopen. However, we note that after the State rested, and after Appellant had moved for a directed verdict, the trial court queried how the chain of evidence had been established as the form State s Exhibit 2 did not indicate who had submitted that evidence to the lab. It was then that the prosecutor asked to reopen in order to provide that information which would complete the chain of evidence. We find that this falls within the rule announced in Peek. Furthermore, there is no indication that testimony was not readily available, the court did not know the tenure of the evidence, and allowing the State to reopen impeded the trial or interfered with the orderly administration of justice. The court did not abuse its discretion in allowing the State to reopen. Issue No. Three is overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

February 16, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)