Williams, Faite v. The State of Texas--Appeal from 212th District Court of Galveston County

    NUMBER 13-00-040-CR

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

FAITE WILLIAMS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 212th District Court

of Galveston County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and McCormick[1]

  Opinion by Justice Ya ez

A jury found appellant, Faite Williams, guilty of possession of a controlled substance, less than one gram of cocaine, and the court assessed punishment at one year confinement in a state jail. Appellant asserts two points of error. He first contends that the State failed to establish a chain of custody for the cocaine, and therefore erred in admitting it as evidence. Secondly, appellant contends that without the cocaine, the evidence is legally insufficient to support a finding of guilt. We affirm.

On February 26, 1998, officers from the Dickinson Police Department in Galveston County executed a narcotics search warrant at appellant=s apartment. Sergeant Moreno organized the search and assigned Officer Coffman to gather evidence and Officer Lynch to handle the narcotics canine. At the time of the search, two females were in the apartment with appellant. After officers forced the door open and detained the three occupants, Officer Lynch entered the apartment with the canine to perform a narcotics sweep. According to Officer Lynch=s testimony, the canine alerted to narcotics in various areas of the apartment.

Based on the locations where the canine alerted, Officer Coffman searched for and retrieved drug paraphernalia, along with three rocks of crack cocaine. He placed the cocaine in a brown bag and labeled the bag with his name. He then gave it to Sergeant Moreno. In Officer Coffman=s presence, Sergeant Moreno conducted a field test and confirmed that the rocks were cocaine. Sergeant Moreno testified that he labeled the evidence bags with his name and took the evidence to the Dickinson Police Department, where it was placed in an evidence locker.

Dottie Collins, a crime lab chemist with the Texas Department of Public Safety in Houston, Texas, testified that she received the cocaine evidence, which was designated as State=s exhibit 10, from AOfficer A. McGaughey@ on November 30, 1998.[2] She stated that she weighed it, tested it and found it positive for cocaine. According to her testimony, her records show that Officer Lynch picked up the evidence on April 6, 1999.

At trial, Collins, Moreno and Coffman each readily recognized exhibit 10 by the unique markings each put on the exhibit at the time of contact with it. They each also stated that exhibit 10 did not appear to be tampered with. No evidence was offered to the contrary.

In point of error one, appellant argues that the trial court erred in admitting the cocaine into evidence on the ground that the State failed to establish the proper chain of custody. The trial court's ruling on the admission of evidence will not be overturned absent a clear abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). Before physical evidence is admitted, it must be identified by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). This can be accomplished by testimony from a witness with knowledge that an item is what it is claimed to be. Id.

If a substance is properly identified, most questions concerning care and custody go to the weight given the evidence and not to its admissibility, absent a showing that the substance was tampered with or changed. Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. 1981); Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.BCorpus Christi 1993, pet. ref=d). The court of criminal appeals has held that, Atagging an item of physical evidence at the time of its seizure and then identifying it at trial based upon the tag is sufficient for admission barring any showing by the defendant of tampering or alteration.@ Stoker v. State, 788 S.W.2d 1, 22 (Tex. Crim. App. 1989); Sneed v. State, 875 S.W.2d 792, 794 (Tex. App.BFort Worth 1994, no pet.).

In the case before us, appellant argues there is no link between the substance seized and the cocaine presented in trial and that there is no testimony regarding what occurred with the seized substance. He thus contends that neither the beginning nor the end of the chain of custody was established. We disagree.

Officer Lynch testified that his canine alerted to a tissue paper on the kitchen table before any of the officers conducted a search. Sergeant Moreno testified that the cocaine was found on the kitchen table wrapped in tissue after they searched the area where the canine alerted. Officer Coffman later testified that he retrieved the cocaine and placed it in the brown bag identified as State=s exhibit 10, then handed it to Sergeant Moreno. At trial, both Coffman and Moreno testified that they recognized exhibit 10 as the evidence handled at appellant=s residence the day of the search. Each officer recognized his own handwriting on the brown bag and Officer Coffman further recognized the contents of the brown bag as being the cocaine seized. This affirmatively establishes the beginning of the chain of custody.

Appellant argues that there is no evidence showing that the substance collected by Officer Lynch is the same introduced in trial. This argument is without merit. The record does not reflect that Officer Lynch collected any evidence. He, in fact, testified that he did not collect evidence and that his sole role in the search of appellant=s residence was handling the canine and informing the officers as to where the canine alerted. Officer Coffman, on the other hand, testified that he retrieved exhibit 10 and Aput it into evidence.@ Coffman asserted that he recognized State=s exhibit 10 by his handwriting on the brown bag and identified the contents as being Athree rocks or - - all white substance.@ He also stated that exhibit 10 did not appear to be tampered with. The tagging of the evidence at the time of its seizure by Officer Coffman and the subsequent identification of the evidence by Officers Coffman and Moreno by recognition of their handwriting and markings on exhibit 10 are sufficient to support admission of the evidence.

Appellant further argues that there is no evidence showing how the contents of exhibit 10 got to the chemist or who placed the cocaine in the envelope within the brown bag. Collins testified that her records showed Officer A. McGoughey delivered exhibit 10 to her for testing. She testified that after testing the substance, she placed the contents of the bag in the original container, sealed it, dated it, initialed it and placed it in a vault. She further stated that exhibit 10 did not appear to be tampered with and that she recognized it by its unique laboratory case number and her initials.

Although the record fails to more specifically identify Officer A. McGoughey, and also fails to establish who placed the seized substance inside the envelope within the brown bag, we find this to be a brief break in the chain of custody, which goes to the weight of the evidence rather than its admissibility. See Alvarez, 857 S.W.2d at 147. The State satisfies the crucial requirement of rule 901(a) by the testimony of Coffman and Collins, who testified that the evidence is what the State says it is. See Moore v. State, 821 S.W.2d 429, 431 (Tex. App.BWaco 1991, no pet.).

The chemist=s testimony, paired with that of Moreno and Coffman, establishes the degree of security and evidentiary integrity to justify admission of exhibit 10. See Stone v. State, 794 S.W.2d 868, 870 (Tex. App. B El Paso 1990, no pet.). Because appellant failed to introduce any indication that the evidence was changed or tampered with, we find the trial court properly admitted the cocaine. We overrule point of error number one.

In point of error number two, appellant contends that absent the admission of the cocaine into evidence, the evidence is legally insufficient to support a finding of guilt. Specifically, appellant contends the evidence is insufficient to establish that the substance admitted into evidence at trial was in fact, the substance seized at appellant=s residence. Appellant fails to adequately distinguish this argument from the first and consequently, the merit of point of error two relies on a finding that the trial court improperly admitted the cocaine. Because we find the cocaine was properly admitted, we further find that point of error two is without merit. We overrule point of error two.

The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

22nd day of August, 2002.

[1]Retired Judge Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '' 74.003 and 75.002 (Vernon 1998).

[2] Officer McGaughey is not more specifically identified in the record.