Travis Lamb v. State ( 2015 )

Opinion issued November 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00901-CR
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TRAVIS LAMB, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1394200
MEMORANDUM OPINION
The State of Texas charged Appellant, Travis Lamb, by indictment with
possession of cocaine, more than one gram and less than four grams. 1 Lamb
pleaded not guilty. The jury found him guilty. Pursuant to an agreement between
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(a), (c) (Vernon
2010).
Appellant and the State, the trial court assessed punishment at 35 years’
confinement. In one issue on appeal, Appellant argues the evidence was
insufficient to establish that he knowingly possessed more than a trace amount of
cocaine.
We affirm.
Background
Officers R. Perez and F. Gallegos, officers with the Houston Police
department, were on patrol on the night of July 10, 2013. They observed Appellant
driving his car and turning without signaling. The officers performed a traffic stop.
During the course of the stop, Appellant admitted he had been driving without a
license. The officers arrested Appellant. Officer Gallegos performed an inventory
of the car in preparation for a tow truck to take the car.
During the inventory, Officer Gallegos found a clear plastic bag containing a
crystalline substance. The baggie had been in an open compartment on the driver’s
door. The officers discussed between themselves whether the substance might be
methamphetamine. Appellant heard their conversation and said, “It’s not meth.
It’s bath salts.” Officer Gallegos field-tested the substance. The field test
identified the substance as methamphetamine.
The State charged Appellant with possession of methamphetamine. Later, a
forensic examiner, A. Noyola, determined that the substance in the baggie
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contained cocaine. Noyola measured the weight of the substance at 1.77 grams.
The State modified the indictment to charge Appellant with possession of cocaine.
At trial, Noyola described the process for testing the substance. She
explained that the types of tests she performs are either presumptive or
confirmatory. Presumptive tests do not confirm the identity of the substance, but
indicate what substances could be present. A confirmatory test, as its name
suggests, confirms all the compounds present in the substance.
Noyola testified that all of the presumptive tests she performed at the
beginning (including chemical screening and ultraviolet spectrophotometry) were
negative, meaning no drugs were identified. Noyola then moved on to
confirmatory tests. One test, Fourier transform infrared spectroscopy, could not
produce an acceptable match. Another, gas chromatography mass spectrometry,
came out negative. Noyola ran this last test a second time with a greater
concentration of the sample. This time, the test identified cocaine in the sample.
Finally, Noyola ran another presumptive test, which was only identified as TLC.
This presumptive test also identified the presence of cocaine. Neither of the
positive tests identified the amount or concentration of cocaine within the sample.
Sufficiency of the Evidence
In his sole issue on appeal, Appellant argues the evidence was insufficient to
establish that he knowingly possessed more than a trace amount of cocaine.
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A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
4
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). An appellate court presumes that the fact finder resolved any conflicts in
the evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing
the record, direct and circumstantial evidence are treated equally; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235
S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence
can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.
See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
B. Analysis
Appellant was ultimately charged with possession of cocaine, more than one
gram but less than four grams. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), .115(a), (c) (Vernon 2010). “[A] person commits an offense if
the person knowingly or intentionally possesses a controlled substance listed in
Penalty Group 1, unless the person obtained the substance directly from or under a
valid prescription or order of a practitioner acting in the course of professional
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practice.” Id. § 481.115(a). Cocaine is listed in Penalty Group 1. Id.
§ 481.102(3)(D). The offense is a third degree felony “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.” Id. § 481.115(c). Appellant
argues in his issue on appeal that the evidence was insufficient to show that he
knowingly possessed cocaine and to show that the amount of cocaine was greater
than a trace amount.
For knowingly possessing a controlled substance, “[i]f the controlled
substance can be seen and measured, the amount is sufficient to establish the
defendant knew it was a controlled substance.” Victor v. State, 995 S.W.2d 216,
220 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In contrast, “[w]hen the
quantity of a substance possessed is so small that it cannot be quantitatively
measured, there must be evidence other than its mere possession to prove that the
defendant knew the substance in his possession was a controlled substance.”
Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979). Our disposition, then,
of Appellant’s argument that the record indicates he did not possess more than a
trace amount of cocaine influences our determination of whether he knowingly
possessed cocaine. Accordingly, we first address Appellant’s argument that he
only possessed a trace amount of cocaine.
6
One of Appellant’s arguments challenging the weight of the cocaine is his
claim that Noyola failed to establish the amount or concentration of cocaine in the
substance. The State correctly argues it did not carry any burden to show this.
Under the new Health and Safety Code definition, the State is no
longer required to determine the amount of controlled substance and
the amount of adulterant and dilutant that constitute the mixture. The
State has to prove only that the aggregate weight of the controlled
substance mixture, including adulterants and dilutants, equals the
alleged minimum weight.
Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2005); see also TEX.
HEALTH & SAFETY CODE ANN. § 481.115(c) (making possession third degree
felony “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” (emphasis added)), § 481.002(49) (Vernon 2010) (defining “adulterant or
dilutant” as “any material that increases the bulk or quantity of a controlled
substance, regardless of its effect on the chemical activity of the controlled
substance”).
Appellant further argues that Noyola failed to provide any “foundational
knowledge” for the jury to determine that the substance contained cocaine because
she did not provide the data from the tests that identified cocaine within the
substance. Noyola testified that the substance contained cocaine, and the trial
court admitted a one-page report indicating the same. To the degree that he is
arguing that this evidence should not have been admitted due to this alleged
7
deficiency, Appellant did not object to Noyola’s testimony or to the admission of
the report.
To preserve error regarding the admission of evidence, a party must make a
specific and timely objection. TEX. R. APP. P. 33.1(a)(1); Penry v. State, 903
S.W.2d 715, 763 (Tex. Crim. App. 1995). This is as true of alleged unreliability of
expert testimony as it is of other evidentiary issues. See, e.g., Stephens v. State,
276 S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d) (holding appellant
did not preserve error when he neither objected to expert’s testimony at trial nor
requested a Daubert hearing).
Next, Appellant argues that Noyola’s testimony about the multiple tests on
the substance show that the amount of cocaine in the substance was only a trace
amount. When she could not get an identification of any drug in the substance on
the presumptive tests, Noyola began performing determinative tests. One
determinative test was indeterminative. The second was negative. It was not until
Noyola concentrated the sample and ran the second test again that she was able to
obtain any determination of a controlled substance, cocaine. She then ran a final
presumptive test and also received an identification of cocaine. Appellant argues
that the need to run multiple tests and, then, to ultimately concentrate the sample
before any reading of cocaine could be achieved establishes that the 1.77 grams of
8
the substance found in Appellant’s car could not have been more than a trace
amount.
Even accepting the merits of Appellant’s reasoning, he cannot prevail.
Regardless of the amount of cocaine present in the substance, it was present, and it
was mixed with “adulterants and dilutants.” See TEX. HEALTH & SAFETY CODE
ANN. § 481.002(49) (defining “adulterants and dilutants”). Regardless of whether
the amount of cocaine by itself would have constituted a trace amount, with the
adulterants and dilutants, it was visible and weighed 1.77 grams. See Melton, 120
S.W.3d at 344 (holding State has to prove only that aggregate weight of controlled
substance mixture, including adulterants and dilutants, equals alleged minimum
weight). Accordingly, there was sufficient evidence for the jury to determine that
Appellant possessed more than one gram and less than four grams of cocaine. See
id. This is not a trace amount. See Shults, 575 S.W.2d at 30 (defining trace
amount to be quantity of substance possessed so small that it cannot be
quantitatively measured).
Appellant argues that Noyola failed to “identify which ‘adulterants and
diluatants’ were contained within the crystalline substance.” This was not
necessary information, however. The Texas Legislature defined “adulterants and
dilutants” to be “any material that increases the bulk or quantity of a controlled
substance, regardless of its effect on the chemical activity of the controlled
9
substance.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (emphasis added).
This encompasses blood waste from a failed attempt to inject methamphetamine.
Seals v. State, 187 S.W.3d 417, 418, 422 (Tex. Crim. App. 2005). This is true
even though the presence of blood would make the drug toxic if injected into the
body. Id. at 427 (Cochran, J., dissenting).
Anticipating this outcome, Appellant further argues, “The rules set forth in
[two Court of Criminal Appeals cases] regarding trace amounts of controlled
substances, even those invisible to the human eye, and the rule set forth in Seals,
transforming pretty much any substance mixed with a controlled substance into an
‘adulterant or dilutant,’ make felons of the innocent.” 2 As Appellant’s argument
establishes, however, the Court of Criminal Appeals has already ruled on the
matters he raises. As an intermediate court of appeals, we are bound to follow the
precedent of the Texas Court of Criminal Appeals. Gonzales v. State, 190 S.W.3d
125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); TEX. CONST.
art. V., § 5(a) (providing that Court of Criminal Appeals is final authority for
2
In his reply brief, Appellant argues that due process requirements put limits on
what constitutes an adulterant or dilutant and on the quality of evidence that will
support a conviction for possession of a controlled substance. Appellant’s due
process arguments were not raised in his primary brief. An appellant cannot raise
issues raised for the first time in a reply brief. See TEX. R. APP. P. 38.3 (limiting
reply brief to addressing matters raised in appellee’s brief); Barrios v. State, 27
S.W.3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (rejecting
review of argument raised for first time in reply brief).
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interpreting criminal law in Texas). Appellant’s argument is outside the scope of
our review.
We turn now to the question of whether there was sufficient evidence to
show that he knowingly possessed cocaine. Appellant does not challenge the
sufficiency of the determination that he possessed the substance. Instead, he
disputes that there was sufficient evidence to establish that he knew it was cocaine.
We have held that the evidence was sufficient to establish that the substance found
in Appellant’s car contained cocaine, was visible, and weighed more than one
gram. Because the substance contained cocaine and can be seen and measured,
“the amount is sufficient to establish the defendant knew it was a controlled
substance.” Victor, 995 S.W.2d at 220.
Appellant points out his statement to the officers after they found the bag
with the controlled substance. While the officers were discussing between
themselves what type of controlled substance the bag might contain, Appellant
volunteered, “It’s not meth. It’s bath salts.” Appellant asserts that this statement
establishes that he did not know the substance was cocaine. The State argues that
it was not required to prove that he knew the substance was cocaine, only that he
knew the substance was a controlled substance. 3 We do not need to resolve either
3
But see King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). (“Therefore,
the State must prove, through other evidence, that appellant had knowledge that
the substance in his possession was cocaine.”).
11
of these arguments, however. While it is undisputed that Appellant made this
statement, there was no requirement for the jury to conclude that this statement
was honest and credit it. “With respect to testimony of witnesses, the jury is the
sole judge of the credibility and weight to be attached thereto, and when the record
supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict, and we defer to that determination.” Thomas v. State, 444
S.W.3d 4, 8 (Tex. Crim. App. 2014). Appellant argues elsewhere in his brief,
“There is no guarantee that a person possessing . . . ‘bath salts,’ recreational drugs
created specifically to skirt the law as it existed at the time of the chemical’s
creation, possesses a prohibited substance.” A jury could have reasonably
determined that Appellant’s statement was designed to take advantage of any
ambiguity on the legality of what he claimed the substance to be. 4 Because this
determination would support the jury’s verdict, we must defer to that
determination. See id.
We hold that, because the amount of cocaine was visible and measureable,
the evidence is sufficient to support the jury’s determination that Appellant knew
the substance was cocaine. See Victor, 995 S.W.2d at 220.
4
Appellant argues, “There is no record-based or evidence-based reason to
disbelieve [Appellant]’s assertion that he thought the drugs were ‘bath salts.’”
There is no reason to believe the assertion, either. Credibility determinations are
left to the jury and are not subject to sufficiency-of-the-evidence reviews. See
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014).
12
We overrule Appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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