EDWIN GONZALES, aka EDWIN GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 17, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00045-CR
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EDWIN GONZALES, aka EDWIN GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-80777-05
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Morris
        At trial, a jury convicted Edwin Gonzales, aka Edwin Gonzalez, of possession, with intent to deliver, of more than four grams but less than 200 grams of methamphetamine. He complains on appeal that the evidence against him is legally and factually insufficient. He further complains the trial court erred by admitting certain evidence where the State failed to prove a chain of custody and by admitting a certificate of analysis and chain of custody affidavit into evidence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
        While conducting a traffic stop of another vehicle, Plano police officer Jon Britton saw appellant get out of a white van in a parking lot. Appellant was carrying a red and gray backpack. He entered the passenger door of a Chevy Blazer parked near the van. Britton decided to follow the Blazer. When the driver of the Blazer failed to signal a right turn, Britton began a traffic stop. As Britton followed the Blazer, he noticed appellant in the passenger seat bending down toward the floorboard like he was reaching for something. Although he did not see appellant put anything in the back of the vehicle, he did not observe appellant the entire time before he made the stop.          When Britton approached the Blazer for the traffic stop, he noticed that the driver, Michael Zarate, smelled strongly of burned marijuana. As Britton was talking with Zarate outside the vehicle, he saw that appellant was moving around in the vehicle and looking back through the side view mirror. The movement was making Britton “nervous,” so he asked appellant for his identification. At that time, appellant told Britton that he had lost the keys to the van Britton had seen earlier.
        Britton noticed that the backpack he had previously seen appellant carrying was now sitting between appellant's legs on the floorboard of the vehicle. Inside the open backpack, Britton saw two pistol magazines - one loaded with .22 bullets, the other for use with .380 bullets. Appellant seemed “overly nervous.” He avoided eye contact with Britton, and his hands were shaking. His eyes were overly dilated, and Britton suspected that appellant had been using methamphetamine. Britton patted down appellant for weapons and asked to search his backpack. Appellant consented to the search. In addition to the two pistol magazines, Britton found phone chargers, motorcycle keys, bullet rounds, a cell phone, and two cold unopened Budweiser beers.
        Zarate also consented to a search of his vehicle. In the backseat floorboard area, closer to the driver's side of the vehicle, Britton found a gray bag. Inside the bag, Britton found a Zippo lighter, a cell phone that matched the one in the backpack, a single .22 caliber bullet that was the same type as those found in the magazine in the backpack, a single 9 millimeter bullet, a pack of Marlboro Medium cigarettes, a 7-Eleven phone card, motorcycle keys, a glass methamphetamine pipe, numerous small baggies suitable for repackaging drugs in small quantities, and a green bag containing methamphetamine. Britton also found a wallet inside the gray bag. It contained three driver's licenses that did not belong to appellant or Zarate and four business cards for a landscaping business with appellant's name on them.
        When asked about the wallet, appellant claimed to Britton that he was holding the driver's licenses for a friend. He told Britton that he placed the bag containing the wallet in the Blazer “because he was moving.” Appellant also told Britton he smoked Marlboro Mediums. Zarate was smoking Marlboro Lights when he was first pulled over. Britton found several empty Marlboro Lights boxes on the driver's side floorboard of the Blazer.
        After appellant was arrested on outstanding warrants, officers searched his van. Before the physical search of the van, a canine unit had alerted to the presence of drugs in the van. Inside the van, Britton found a loaded 9 millimeter pistol, a glass methamphetamine pipe, a couple of empty packs of Marlboro Mediums, and a motorcycle. He also found some cold bottles of Budweiser in the van. During the search incident to appellant's arrest, Britton found a Target receipt “showing the purchase of a 7-Eleven type phone card, and a car charger for a phone” on appellant's person.
        Zarate then took Britton to the apartment he claimed he shared with appellant. Appellant had told Britton that he was in the middle of moving and was living with Zarate part-time. At the apartment, Zarate surrendered more methamphetamine to Britton that he claimed belonged to appellant. Zarate admitted to Britton that he had smoked methamphetamine at the apartment earlier that day. The methamphetamine from the apartment was not included in the charges filed in this case.
        Zarate testified to a limited extent at appellant's trial. He claimed he picked up appellant on the night of the arrest because appellant had called him saying his van had broken down. Zarate testified that at the time, appellant had been staying at his apartment for a few weeks. Zarate claimed he did not recall the gray bag from the backseat of his vehicle and did not recall being asked if the bag belonged to him. He further claimed that he never admitted to the officer that he had been smoking methamphetamine earlier that day. Zarate testified that he was a Marlboro Lights smoker at the time of appellant's arrest. He further testified that he had not smoked marijuana “in years” and that he would not have smelled like marijuana when his vehicle was stopped.
        Zarate denied that a written statement admitted into evidence was his. He claimed he never saw appellant put anything into the backseat of his Blazer. He testified, however, that when police told him a bag was found in the back seat of the Blazer, he told police the bag belonged to appellant. Zarate's written statement says:
 
        When we were in the process of being stopped, I observed my passenger opening his bag and putting something into the backseat. The officer asked me for permission to search my car after bullets and a clip were found in his bag. I granted permission and a gray bag was found with a large amount of drugs and paraphernalia. I was asked if it was mine, I said no. I was asked if it was the passenger's; I said I was not sure, I know it just wasn't mine. I was placed in custody while the passenger was searched. I told officer [sic] the bag belonged to him.
        I said I know nothing about the bike or any other items. I told them the van was a work van to my knowledge. The officers are following me to my house to collect the rest of the drugs, scales, et cetera, that belong to the passenger. I was told I am free to go but if more evidence is found against me, I can be arrested, but the officers are convinced the bag is his and not mine.
 
        Britton testified that the street value of the amount of methamphetamine found in the gray bag was approximately $500. In his opinion, this amount of methamphetamine was consistent with delivery. Britton stated that methamphetamine users typically have only approximately 1/16 of a gram in their possession at any given time; this amount is valued at approximately $25 on the street.
Discussion
        In his first two issues, appellant complains the evidence against him is legally and factually insufficient to support his conviction. He contends there is insufficient evidence to link him to the methamphetamine found in the gray bag. When reviewing challenges to the legal sufficiency of the evidence, we apply well- established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the jury's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the jury's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
        When the accused is not in exclusive possession of the place where a controlled substance is found, it cannot be concluded that the accused had knowledge of and control over the sustance unless there are additional independent facts and circumstances that link the accused to the contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); see also Evans v. State, 202 S.W.3d 158, 161-62 n.9 (Tex. Crim. App. 2006). The State must prove that (1) the accused exercised control, management, or care over the substance and (2) the accused knew the substance was contraband to show that the accused's connection with the controlled substance was more than just fortuitous. See Poindexter, 153 S.W.3d at 405-06.
        Here, the methamphetamine was found in a gray bag in the backseat area of a car in which appellant was the passenger and Zarate was the driver. Zarate gave conflicting statements about whether the bag belonged to appellant. Nevertheless, the bag containing the methamphetamine also contained a wallet. The wallet, in turn, contained four of appellant's business cards and three driver's licenses. Appellant told Britton that he was holding the driver's licenses inside the wallet for a friend. The bag also contained a pack of Marlboro Medium cigarettes; appellant, not Zarate, smoked Marlboro Mediums, and empty packs of Marlboro Mediums were found in the van appellant had been driving. Inside the Marlboro Mediums pack from the gray bag, Britton found a glass methamphetamine pipe. He found another glass methamphetamine pipe inside appellant's van.
        A 9 millimeter bullet was also found in the gray bag. It matched the pistol found in appellant's van. A .22 caliber bullet in the gray bag matched the pistol magazine found in the backpack that appellant had been seen carrying and was found between his legs during the stop. Appellant's van and backpack were the only two locations, aside from the gray bag, where ammunition was found. The van was the only location where a firearm was found. Furthermore, appellant appeared to be under the influence of methamphetamine at the time of his arrest, and his behavior was suspicious when Britton first stopped Zarate's vehicle.
        After viewing all the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support appellant's conviction. We resolve his first two issues against him.
        In his third issue, appellant complains that the trial court erred in admitting ten different exhibits into evidence. He argues that the State failed to offer “definitive evidence regarding the chain of custody” for all ten exhibits.   See Footnote 1  A trial judge is afforded “great discretion” in his decisions to admit evidence at trial. Druery v. State, 225 S.W.3d 491, 503 (Tex. Crim App. 2007), cert. denied, 128 S. Ct. 627 (2007). Absent evidence of tampering or other fraud, questions about the chain of custody for a substance affect the weight the fact finder should give the evidence, rather than the admissibility of the evidence. See id. at 503-04.
        Appellant points to no evidence in the record, and we have found none, showing that the complained-of exhibits may have been tampered with in some way. The record shows that Britton identified the items at trial and that the items conformed with photographs and a videotape of the items taken at the time of appellant's arrest. See Tex. R. Evid.901(a). Moreover, as discussed in appellant's next issue, the bag of methamphetamine was admitted into evidence after the State admitted a chain of custody affidavit for the methamphetamine establishing the chain of custody for that exhibit. See Tex. Code Crim. Proc. Ann. art. 38.42 (Vernon 2005). We conclude the trial court did not abuse its discretion in admitting the exhibits into evidence. We resolve appellant's third issue against him.
        Appellant complains in his fourth issue that the trial court erred in admitting into evidence the Certificate of Analysis and Chain of Custody Affidavit pertaining to the methamphetamine. He argues the State should not have been permitted to admit the certificate and affidavit into evidence because the State failed to comply with the notice requirements of code of criminal procedure articles 38.41 and 38.42. Under these articles, the party planning to offer a certificate of analysis or a chain of custody affidavit at trial must file the certificate or affidavit with the clerk of the court not later than the twentieth day before the trial begins, and a copy of the certificate or affidavit must be provided to the opposing party by fax, hand delivery, or certified mail, return receipt requested. The opposing party then has until the tenth day before trial begins to object to the use of the certificate/affidavit. See id. art. 38.41, § 4; art. 38.42, § 4.
        At trial, appellant's attorney objected that the State could not admit the document because he did not have a copy of it in his file. The following exchange then occurred:
 
[PROSECUTOR]: Your Honor, we did send a copy, we have a green card.
THE COURT: All right.
[DEFENSE ATTORNEY]: Show me the green card then, Your Honor.
THE COURT: Okay.
[DEFENSE ATTORNEY]: Well move for my objection again. It shows that something was sent to me on the 16th, some weeks later, and there's an unsigned certificate of service from Curtis Howard, but I don't know what was sent and I don't remember seeing it, Your Honor.
THE COURT: Let me see it. Who is Patty Love?
[DEFENSE ATTORNEY]: She works in our office, your Honor.
THE COURT: Objection is overruled. . . .
 
        The clerk's record in appellant's case contains a copy of the Certificate of Analysis and Chain of Custody Affidavit. The file date for the document is October 9, 2006. The clerk's record additionally contains a notice form addressed to appellant's attorney informing the attorney that the lab report in the case had been filed with the clerk “accompanied by Affidavit.” The signed certificate of service for the document states that a copy of the notice was served on appellant's counsel on October 12, 2006 by certified mail. Appellant's trial began on December 4, 2006.
        Once again, we view the trial court's decision to admit evidence under an abuse of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A certificate of service creates a presumption that a document properly sent was received by the addressee. See Webb v. State, 36 S.W.3d 164, 177 (Tex. App.-Houston [14th Dist.] 2000 pet. ref'd). Here the prosecutor produced a certificate of service, a green return receipt card, and some documentation that a member of appellant's attorney's staff had received a mailing from the State. Under the facts of this case, we cannot say the trial court abused its discretion in admitting the document into evidence. See Davis v. State, 130 S.W.3d 519, 521-22 (Tex. App.-Dallas 2004, no pet.). We resolve appellant's fourth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070045F.U05
 
Footnote 1 The exhibits consist of (1) a red and gray backpack and its contents, (2) a gray bag and its contents, (3) a Zippo lighter box, (4) a pack of Marlboro Medium cigarettes, (5) a green bag with individual baggies inside, (6) a green bag with 4.03 grams of methamphetamine, (7) a glass methamphetamine pipe from the van, (8) a 9 millimeter pistol, (9) pistol magazines, and (10) a glass methamphetamine pipe from the gray bag.