Christopher Alexander Roberts v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-93-241-CR

CHRISTOPHER ALEXANDER ROBERTS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 7889-A

O P I N I O N

Roberts was convicted of possession of cocaine less than twenty-eight grams. See Tex. Health & Safety Code Ann. 481.115 (Vernon 1992). A jury assessed two years in prison. See Tex. Penal Code Ann. 12.33 (Vernon 1974). He appeals on three points: (1) the evidence is insufficient to establish that he possessed the controlled substance; (2) the evidence is insufficient to establish that he had knowledge the substance was cocaine; and (3) the court erred in admitting oral stipulations about the contents of a laboratory report and about the chain of custody of an exhibit. Because we find that the evidence is sufficient and that the stipulations were proper, we will affirm the judgment.

THE FACTS

Two witnesses testified, both Mexia police officers. Brad Matchett, a patrol officer, testified that about 5:22 p.m. on November 8, 1991, he and Reserve Officer Jess Whisler were on patrol in the Bellnap area of Mexia, known as "The Beat." He said that the area, approximately four blocks long, is a high-drug, high-crime area that was patrolled quite a bit. He saw an individual he thought might be Roberts standing with a group of men in the driveway of a house at 303 Palestine, about one-half block off the Beat, or off Bellnap. He knew Roberts lived at that address, but did not personally know him. Because the officers had warrants for Roberts, they drove back on Bellnap past a building called "the old High's Cleaner." By the time they returned, Roberts was standing "away from the residence up there beside the cleaners." Matchett said that as he approached the group, Roberts walked around the corner of the cleaners' building, out of his sight. When he asked the group about Roberts, Roberts reappeared. After being informed that the officers had two warrants for his arrest, Roberts started to pull away, then put his hands behind his back and was handcuffed. Matchett then walked around the building where Roberts had just been and found a "baggie," later found to contain cocaine, in plain view beside the steps and against the building. The officers also found $2,100 in Roberts' pocket.

Matchett identified four photographs of the building, taken that same afternoon. The photographs show a shell of a building whose doors, if present, were wide open and whose windows allowed an unobstructed view of the interior. Matchett said that when they arrived at the front of the building, there were no baggies in view, no persons standing at the cleaners, and no one other than Roberts walking around the building in short, no one in the area around the cleaners. Although admitting that the Beat was a "very trashy" area, Matchett said that, had the baggie been present when they arrived, he would have seen it.

After Exhibit No. 5 was admitted into evidence by virtue of the stipulation later described, Matchett identified it as containing the baggie found at the building and its contents "two large rocks of cocaine." He further said that, because the Beat is a high drug-trafficking area, the fact that it was a baggie that he saw called his attention to it more than if it had been another type of debris. "If we see a baggie, we stop to see what's in it." He further testified that he did not know Roberts to be employed in Mexia.

Officer Jesse Whisler testified that, after the officers saw a man they thought might be Roberts, they passed by, came back, and parked in front of the cleaners. He said that when he looked at the front of the building, he did not see a baggie on the ground and that there were no people around the building. Whisler said that, after one of the group of men pointed Roberts out, Roberts "walked to the corner of the building and vanished or left my view at that point; then turned right around and came right back, and he walked back up. And we asked him, `Are you Chris Roberts?' And he said, `Yes.'" After they found the money on Roberts and Whisler handed it to Matchett, Matchett walked around the building the same way Roberts had and came back "with a bag of what appeared to be crack cocaine."

THE STIPULATIONS

Roberts' third point asserts that the court erred in allowing the jury to hear facts about the contents of a laboratory report and about the chain of custody of the controlled substance because the stipulations were not in writing and were not approved in writing by the court. During Machett's testimony, this exchange took place:

[Prosecutor]: Your honor, in the interest of saving time for the jury and bringing in the chemist, and bringing in some of the chain of possession, it's agreed between the defendant and the State that we'll stipulate that this is the package that was returned containing the crack cocaine, from the lab by Valerie Bailie to the Mexia Police Department, kept in their safe, brought over today by Mike Bell, and handed to me awhile ago by Mike Bell. It has all of their signatures on it. The possession has been in the safe at Mexia or in the chemist's safe at Waco.

([Prosecutor] opened the envelope marked State's Exhibit No. 5.)

It's marked as State's Exhibit No. 5 on the outside of the envelope.

It's also stipulated by the State and the defendant that this laboratory Case No. L6W-57834 is a report made by the chemist at the Texas Department Public Safety Lab. This contains the same number, and we would offer into evidence the results of that chemist's tests on this package -- on the contents of this package.

[Defense Counsel]: That is our stipulation, Your Honor.

The Court: Okay.

(State's Exhibit No. 6 was marked.)

[Prosecutor]: State's Exhibit 6 will be offered into evidence.

The Court: No objection to 5 and 6, then?

[Defense Counsel]: No objection, Your Honor.

The Court: Five and 6 will be received.

After Matchett's testimony, another exchange took place:

[Prosecutor]: The State and defendant are going to stipulate to the chain of custody, that it was in a Mexia police officer's custody at all times, delivered to the lab in Waco, brought back by a Mexia police officer, and that the defendant raises no -- waives any chain of custody claim that it was not in the control of the police officer.

[Defense Counsel]: That's our stipulation, Your Honor. We have no chain of custody issue or concern.

Roberts' third point urges that article 1.15 of the Code of Criminal Procedure requires that stipulations of evidence be written and approved in writing by the court. He cites several cases in support of that proposition. The applicable part of article 1.15 prohibits conviction in a felony prosecution, except on a jury verdict, unless the defendant, "upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant . . . ." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1995). The article further states: "The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents . . . to an oral stipulation of the evidence and testimony . . . . Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause." Id. (Emphasis added). Thus, the provision that Roberts relies on applies to cases in which a waiver of jury trial has been filed. See id.

Likewise, the cases cited by Roberts are all jury-waiver cases, in which the defendant entered a plea of guilty. See McClain v. State, 730 S.W.2d 739 (Tex. Crim. App. 1987); Humason v. State, 728 S.W.2d 363 (Tex. Crim. App. 1987); Messer v. State, 729 S.W.2d 694 (Tex. Crim. App. 1987); Garcia v. State, 753 S.W.2d 189 (Tex. App. San Antonio 1988, pet. ref'd). Thus, we find that the provision relied on by Roberts has no applicability to the issue at hand.

What is at issue is the admissibility of Exhibits No. 5 and 6, the controlled substance inside the baggie that the officers found and the lab report identifying it as cocaine. Roberts did not object to the admissibility of either. Having not complained to the trial court, he cannot complain on appeal about their being admitted into evidence. See Tex. R. App. P. 52(a). We overrule point three.

SUFFICIENCY OF THE EVIDENCE

We will consider points one and two together because they are related. Roberts contends that, because neither officer saw him put the baggie where they found it, the circumstantial evidence is insufficient to support the jury's finding that he was in possession of the substance in the baggie while knowing that it was cocaine. Matchett said, "I don't know that he put it there, for a fact." Whisler also testified that he never saw Roberts in possession of the baggie.

Circumstantial evidence is "direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven." Cowan v. State, 840 S.W.2d 438, 439 n.10 (Tex. Crim. App. 1992) (citing Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984)). Cases based on circumstantial evidence are reviewed under the same standard as direct-evidence cases. Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, U.S. , 114 S. Ct. 1579, 128 L. Ed. 2d 222 (1994). Every circumstantial-evidence case must be tested by its own facts to determine the sufficiency of the evidence. Rios v. State, 846 S.W.2d 310, 313 (Tex. Crim. App. 1992) (citing Brasfield v. State, 600 S.W.2d 288, 293 (Tex. Crim. App. 1980)), cert. denied, U.S. , 113 S. Ct. 1946, 123 L. Ed. 2d 651 (1993).

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we position ourselves as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Viewing the evidence admitted at trial in the light most favorable to the verdict, we have only the discretion to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. 1991).

Roberts urges that the testimony of the two officers was, at times, at odds. The law is well-settled that contradictory testimony does not render the evidence insufficient. Mercado v. State, 695 S.W.2d 25, 29 (Tex. App. Corpus Christi 1985), aff'd, 718 S.W.2d 291 (Tex. Crim. App. 1986). Later contradictory evidence does not destroy the probative value of earlier testimony. Id.

Roberts argues that the evidence shows that the area was trashy, a high-traffic area, and a high drug-trafficking area. He points out that there could have been someone else in the building and that, if he had possessed the baggie, he could have thrown it into the building. He further says that he did not flee, was not intoxicated, and that his actions and demeanor were consistent with his innocence. All these things we may not consider; we must consider the evidence only in the light most favorable to the verdict. See Rodriguez, 819 S.W.2d at 872. The reasonable-hypothesis test has been discarded, so we need not consider other possibilities. See Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991).

Viewed in the light most favorable to the verdict, we find that the officers viewed a location in an area known for high drug traffic, that the location was free from baggies, that Roberts walked to that location and out of the officers sight, that no other persons were at the location, that moments later the officers found at the location a baggie containing a controlled substance, that Roberts had $2,100 on his person, and that he was not known to the officers to be employed. We hold that this circumstantial evidence was sufficient to allow a rational jury to conclude that Roberts was in possession of the cocaine that the officers retrieved. See Johnson, 871 S.W.2d at 186. We overrule points one and two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

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