John Peter Roberts v. The State of Texas--Appeal from 264th District Court of Bell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00355-CR
John Peter Roberts, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 45,948, HONORABLE OLIVER KELLY, JUDGE PRESIDING

This appeal is taken from a conviction for possession of a controlled substance, to wit: cocaine in the amount of one gram or more but less than four grams by aggregate weight, including adulterants and dilutants, a third degree felony. Tex. Health & Safety Code Ann. 481.115(c) (West Supp. 1997). (1) After the jury found appellant, John Peter Roberts, guilty, the trial court assessed punishment at 10 years' imprisonment and a $2,000 fine.

Appellant advances one point of error: "The trial court incorrectly denied the appellant's motion for directed verdict based on the insufficiency of the evidence relating to the State's burden of proof as to the chemical composition and weight of an alleged controlled substance and its adulterants and dilutants when the weight of such adulterants and dilutants is used to enhance punishment." A challenge to the trial court's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991). We shall consider appellant's contention as a challenge to the legal sufficiency of the evidence to support the conviction.

In reviewing the legal sufficiency of the evidence, this Court must view all of the evidence in the light most favorable to the jury's verdict and determine whether a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The standard for review is the same in both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991); Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). In measuring the sufficiency of the evidence, the court must look to the indictment as incorporated in the jury charge. See Fisher v. State, 887 S.W.2d 49, 55 (Tex. Crim. App. 1994); Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

On the night of August 19, 1995, Killeen Police Officers John Moseley and Jeff Donohue were on special duty as narcotic officers. They were dressed in mufti and were driving an unmarked police vehicle. As they drove into the parking lot of Motel Seven on Veterans' Memorial Boulevard, they saw appellant and Eddie Lee Moore at the rear of the parking lot in what appeared to be a narcotics transaction. As they approached, Officer Donohue saw appellant throw an object which fell on the windshield of a nearby vehicle. Donohue recovered a small plastic baggie from the vehicle which appeared to contain rock-like crack cocaine and arrested appellant. Officer Moseley field-tested the suspected contraband and found that it tested positive for cocaine.

The chain of custody of the substance was established. It was later analyzed by Henry Amen, a chemist with the Department of Public Safety laboratory in Waco. He found the substance, off-white colored rocks, to contain cocaine and gave its weight as 1.24 grams, including any possible adulterants and dilutants. Amen did not perform any test to determine what the adulterants or dilutants were. He explained that such tests were not routinely performed. He did not know the weight of any adulterants and dilutants in the substance submitted to him. Amen acknowledged that the adulterants and dilutants may have weighed more than .24 grams and that there could have been less than one gram of pure cocaine. He added, however, that there was the possibility that the substance was "100 percent cocaine" as it was not known that any adulterants or dilutants actually existed in the substance.

The defense offered no evidence and rested with the State. The jury, under the court's charge which tracked the facially complete indictment and to which there was no objection, returned a verdict of guilty rejecting appellant's plea of not guilty.

In a prosecution for possession of a controlled substance, the State must prove (1) the defendant exercised care, custody, control, or management over the contraband, and (2) the defendant knew the matter was contraband. Tatum v. State, 836 S.W.2d 323, 324 (Tex. App.--Austin 1992, pet. ref'd).

Appellant relies upon Cawthon v. State, 849 S.W.2d 346, 348-49 (Tex. Crim. App. 1992), which held that when adulterants and dilutants constitute a part of the weight of the controlled substance utilized to increase punishment, the State must prove beyond a reasonable doubt: (1) the identity of the named illegal substance, (2) that the added remainder (adulterants and/or dilutants) has not affected the chemical activity of the named illegal substance, (3) that the remainder (adulterants and/or dilutants) was added to the named illegal substance with the intent to increase the bulk or quantity of the final product, and (4) the weight of the illegal substance, including any adulterants and/or dilutants. In Cawthon, the court held that the only definition of adulterants and dilutants recognized was the one set forth in McGlothlin v. State, 749 S.W.2d 856 (Tex. Crim. App. 1988), which defined adulterants and dilutants as "compounds, substances, or solutions added to the controlled substance with the intent to increase the bulk of the product. Or, increase the quantity of the final product 'without affecting its activity.'" Id. at 860; see also Reeves v. State, 806 S.W.2d 540, 542 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 984 (1991). In reversing the conviction for possession of amphetamine with intent to deliver at least twenty-eight grams but not more than four hundred grams, the Cawthon court noted that the State's chemist had testified the substance in question contained twenty percent [25.752 grams] amphetamine, but the record did not contain any testimony regarding the nature of the rest of the substance. Nor did the State prove that the unidentified portion was added to the amphetamine to increase the bulk or quantity of the amphetamine without affecting its chemical activity. See also Thorpe v. State, 863 S.W.2d 739, 741 (Tex. Crim. App. 1993).

In the instant case, appellant claims the State failed to prove elements two and three of the Cawthon test in that it did not prove the adulterants or dilutants had not affected the chemical activity of the cocaine or that the adulterants and dilutants were added to the cocaine with the intent to increase the bulk or quantity of the final product. Appellant overlooks a change in the statutory law since the decision in Cawthon. There is now a statutory definition of "adulterant or dilutant" in the Texas Health and Safety Code that became effective September 1, 1994, prior to the date of the commission of the instant offense. It provides: "Adulterant or dilutant means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance. Tex. Health & Safety Code Ann. 481.002(49) (West Supp. 1997); see also Act of May 29, 1993, 73d Leg., R.S., ch. 900, 2.01, 1993 Tex. Gen. Laws 3568, 3705. This definition must be read together with the section of the Health and Safety Code that furnishes the foundation for appellant's indictment:

 

(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

 

Tex. Health & Safety Code Ann. 481.115(c) (West Supp. 1997).

The result of the new definition is that by the time of the alleged offense and appellant's subsequent trial, the State no longer had to prove that added adulterants or dilutants had not affected the chemical activity of the controlled substance. See Williams v. State, 936 S.W.2d 399, 405 (Tex. App.--Fort Worth 1996, pet. filed). We also conclude the statutory change has eliminated the third requirement of Cawthon, which appellant asserts was not met.

Moreover, Officer Moseley, based on his experience as a narcotics officer, testified that powder cocaine is cocaine derived from coca leaves and "by the time it arrives in the United States it has been cut or what we call stepped on several times which means it has dilutants added to it." He described crack cocaine as a hard rock-like substance which results from the powder cocaine being mixed with baking soda in a cooking process, "some type of heat source," which removes as much of the dilutants as possible to produce a purer form of cocaine.

The chemist was not required to perform an analysis or test to determine how much of the substance was a controlled substance as alleged and how much was some other material in order to sustain the conviction. See Williams, 936 S.W.2d at 405.

We conclude that, after viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Because the jury's verdict was not irrational or unsupported by proof, we overrule appellant's sole point of error.

The judgment is affirmed.

 

John F. Onion, Jr., Justice

Before Justices Powers, Kidd and Onion*

Affirmed

Filed: March 20, 1997

Do Not Publish

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

1. Act of May 29, 1993, 73d Leg., R.S., ch. 900, 2.02, 1993 Tex. Gen. Laws 3586, 3706.07. The statute provides for stair-step levels of punishment depending on the amount of the controlled substance involved.

pe v. State, 863 S.W.2d 739, 741 (Tex. Crim. App. 1993).

In the instant case, appellant claims the State failed to prove elements two and three of the Cawthon test in that it did not prove the adulterants or dilutants had not affected the chemical activity of the cocaine or that the adulterants and dilutants were added to the cocaine with the intent to increase the bulk or quantity of the final product. Appellant overlooks a change in the statutory law since the decision in Cawthon. There is now a statutory definition of "adulterant or dilutant" in the Texas Health and Safety Code that became effective September 1, 1994, prior to the date of the commission of the instant offense. It provides: "Adulterant or dilutant means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance. Tex. Health & Safety Code Ann. 481.002(49) (West Supp. 1997); see also Act of May 29, 1993, 73d Leg., R.S., ch. 900, 2.01, 1993 Tex. Gen. Laws 3568, 3705. This definition must be read together with the section of the Health and Safety Code that furnishes the foundation for appellant's indictment:

 

(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or