Steven Sanchez v. State ( 2010 )

Opinion issued June 24, 2010

In The

Court of Appeals

For The

First District of Texas

________________

NO. 01-06-00210-CR  

________________

STEVEN SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law Number 15

Harris County, Texas

Trial Court Cause No. 1320995

MEMORANDUM OPINION

          A jury convicted appellant, Steven Sanchez, of possession of a controlled substance, and the trial court assessed punishment at 180 days in prison, probated for 18 months, and a $750 fine. See Tex. Health & Safety Code Ann. § 481.105(1) (Vernon 2003).  In six points of error, appellant challenges (1) the legal sufficiency of the evidence to support his conviction, (2) the factual sufficiency of the evidence to support his conviction, (3) the trial court’s admission of testimony regarding cash found in his pockets during his arrest, (4) the admission of testimony from police officers regarding the cash and the general practice of selling codeine from baby bottles, (5) the trial court’s denial of his motion for directed verdict, and (6) the trial court’s overruling his motion for new trial. 

          In our November 1, 2007, opinion, we sustained appellant’s challenge to the legal sufficiency of the evidence, reversed the trial court’s judgment, and rendered a judgment of acquittal.  See Sanchez v. State, 264 S.W.3d 132 (Tex. App.—Houston [1st Dist.] 2007), rev’d, 275 S.W.3d 901 (Tex. Crim. App. 2009). On the State’s petition for discretionary review, the Texas Court of Criminal Appeals reversed our holding that the evidence was insufficient to sustain appellant’s conviction.  The Court of Criminal Appeals has remanded the case for us to consider the remaining points appellant raises on appeal. 

We affirm.

BACKGROUND

          On the evening of August 10, 2005, in the southwest part of Houston, Officer Hobbs of the Houston Police Department (“HPD”) pulled over a vehicle with two occupants.  Officer Hobbs stopped the vehicle after randomly running the license plate and finding several City of Houston outstanding traffic warrants related to the vehicle.  After Officer Hobbs turned on the lights and siren of of his patrol car, the vehicle did not stop but instead slowed to approximately 10 to 15 miles an hour but continued to drive.  The vehicle made a U-turn and passed several driveways before finally coming to a complete stop.  After the vehicle finally came to a stop, Officer Hobbs approached the car and asked the driver for his license or any other identification, and proof of insurance. The driver was not able to provide a drivers license, photo identification or proof of insurance. Officer Hobbs arrested the driver for operating a vehicle without a license, placed the driver in the patrol car and then again approached the vehicle.  Appellant was sitting in the front passenger seat of the vehicle while Officer Hobbs arrested the driver.  Officer Hobbs approached appellant to ask if he had a valid drivers license so that appellant could drive the car and avoid it being towed.  After determining that appellant did not have a valid drivers license, Officer Hobbs asked appellant to get out of the car so that Officer Hobbs could take an inventory of the vehicle’s contents.  At this time, Sergeant Macintosh-Beatson arrived on the scene and, at Officer Hobbs’ request, placed appellant in the back seat of Macintosh-Beatson’s police car. 

While taking inventory of the possessions in the car, Officer Hobbs found an open plastic baby bottle containing residue of a thick, red liquid. The bottle was under the front passenger seat, where appellant had been sitting.  The cap of the bottle lay nearby on the floor.  Officer Hobbs testified that the consistency, smell, and appearance of the substance in the bottle was consistent with liquid codeine.  In addition to the baby bottle, Officer Hobbs described finding “fresh red liquid stains” on the front passenger floorboard and on the console separating the driver and passenger.  Officer Hobbs described the stain as “still wet, a large liquid red stain” where appellant’s feet would have rested, and he also described other residue stains to the left of where appellant’s feet would have been.  Officer Hobbs believed the stains were consistent with the bottle “being poured out and some of it being splashed on the console.”

Officer Hobbs stated that the residue remaining in the bottle had a “mediciney smell which is also consistent with liquid codeine.”  Officer Hobbs stated that he believed the residue was “liquid codeine.”  Officer Hobbs placed appellant under arrest.  During a pat-down search, officers found “two very large . . . wads” of cash totaling $2,892.29 in appellant’s front jean shorts pockets. The money included “all types of denominations”—including five-, ten-, twenty-, fifty- and hundred-dollar bills. The money also included a few one-dollar bills and some coins.

          Prior to trial, appellant’s counsel sought to exclude evidence of the money found in appellant’s pockets on the grounds that it was irrelevant, unduly prejudicial and that it was evidence of extraneous bad acts that violated Texas Rule of Evidence 404b.  In a hearing before the trial began, the court reserved ruling on the objection but instructed the prosecutor to approach prior to introducing evidence of the money.  During Officer Hobbs’ direct examination, the State asked for permission to introduce evidence of the money.  The trial court denied that request.  Appellant’s counsel then cross-examined Officer Hobbs, eliciting testimony that Officer Hobbs did not see any residue on appellant’s hands or clothes, and that appellant did not appear under the influence of narcotics nor did his breath smell like the strong smell of the liquid residue.  The State then approached the bench again, asking that it be allowed to introduce evidence about the money in order to prove that appellant was in possession of the narcotics:

The State:   Your Honor, we will again renew our motion to bring in the evidence about the money.

Defense counsel has just made argument through cross that he wasn’t using the substance so as such he can’t possess it.  He said he didn’t have a smell on him.  There wasn’t anything sticky on his fingers.  He didn’t look high.  There wasn’t anything on his clothing.  So now we have to come up with some affirmative link which has always been that he wasn’t using it but he was dealing it.  In order to prove that, the only way to do it is through the money, Your Honor.

The trial court granted the State’s motion to introduce the evidence, cautioning, “However, I don’t want there to be any implication or argument that he was dealing.”  The court clarified that the evidence was being admitted “as an affirmative link to the defendant.”

          After a short voir dire examination of Officer Hobbs, appellant’s counsel made the following objection:

Appellant’s counsel: Your Honor, the Court’s ruling that the State cannot try to allege that the money found on Mr. Sanchez is from him selling drugs or anything like that is just an affirmative link that links Sanchez to the drugs, it effectively requires me to argue that it is not — I kind of opened the door to it for the most part because I have to argue it is not that he possessed it, not that it was a drug sale, just that he had the money. So that my record is clear, I understand the Court’s ruling but if the money were next to the codeine or a circumstance like that, then I think they could make an affirmative link argument. The money is in his pocket and the bottle is under the seat.  There is no affirmative link.  He can’t bring somebody to testify that they saw the car stop, flag someone down who is a known codeine — narcotic supplier.  There is no link.

The court overruled the objection, and Officer Hobbs testified on re-direct that officers found the money in appellant’s pocket while performing a pat-down search.  Officer Hobbs described the money and, on cross-examination, conceded that, although the area was known for drug trafficking, the money in question was not marked in any way to indicate that it was part of an undercover drug buying operation.  On cross-examination, the following exchange occurred:

Appellant’s counsel:      Do you recall ever seeing Mr. Sanchez in that area?

Officer Hobbs:      Not to my knowledge, no, sir.

Appellant’s counsel:  Mr. Sanchez was never someone that was on your list as a possible drug dealer, was he?

Officer Hobbs:      No, sir, to my knowledge I have never come into contact with him until that incident.

Appellant’s counsel:      You didn’t have any information that evening that would suggest the vehicle that Mr. Sanchez was in stopped to buy drugs from any person, did you?

Officer Hobbs:      No, sir.

Appellant’s counsel:  You are not telling the ladies and gentlemen of the jury that Mr. Sanchez — the money doesn’t have anything to do with the codeine on it is what I am saying?

Officer Hobbs:  Other than a drug scent on it, no.  I cannot say that it does.

. . . .

Appellant’s counsel:  But there was nothing that happened that night that led you to believe Mr. Sanchez had recently bought or sold any drugs?

Officer Hobbs:      No, sir, other than the fact of the narcotics present and the amount of money present.

. . . .

Appellant’s counsel:  So you don’t know, you can’t tell the ladies and gentlemen whether or not the bottle belonged to whomever the co-defendant was, can you?

Officer Hobbs:      No, I cannot.

Appellant’s counsel:  It is very possible that both Mr. Sanchez and the co-defendant possessed it, isn’t it?

Officer Hobbs:      It is quite possible.

Appellant’s counsel:  It is possible that just the co-defendant possessed it, isn’t it?

Officer Hobbs:      Other than the fact that it was found on his side of the car with the liquid on his side of the car.

During this cross-examination, Officer Hobbs admitted that he did not know when the bottle had been poured out, and that he did not know if it had been poured out prior to appellant getting into the car.  Officer Hobbs also testified that the liquid was a wet stain in the carpet rather than still in a puddle on the floor of the car. Appellant’s fingerprints were not on the baby bottle.  Officer Hobbs did not observe any residue on appellant’s clothes or hands and appellant did not appear to be under the influence of a narcotic at the time of his arrest. 

Sergeant Macintosh-Beatson testified that he stopped and helped Officer Hobbs after Officer Hobbs stopped the vehicle in which appellant was riding. Sergeant Macintosh-Beatson testified that he found “a couple wads of cash” in appellant’s front pants pocket but that he did not find any drug paraphernalia or weapons.  Sergeant Macintosh-Beatson confirmed that he did not see any signs on appellant that indicated appellant had poured the residue out of or into the baby bottle.  On cross-examination, Sergeant Macintosh-Beatson stated that he believed the money indicated that appellant had been in possession of the codeine because “if the money is obtained during a drug transaction, then I think that would be partly involved.”  Like Officer Hobbs, Sergeant Macintosh-Beatson admitted that he did not observe appellant buying or selling narcotics prior to his arrest. 

Appellant’s counsel:      So again, how does the money become relevant as to whether or not Mr. Sanchez possessed codeine?

Sergeant Macintosh-Beatson:  I think it becomes relevant when he is charged with a crime dealing with drugs.

Appellant’s counsel:      Yes, sir.  Exactly, if he is charged with dealing drugs —

Sergeant Macintosh-Beatson: Dealing with drugs.

Appellant’s counsel:      Dealing with drugs.  So are you testifying to the jury that Mr. Sanchez was out there selling drugs?

Sergeant Macintosh-Beatson:           In my opinion it is very likely, yes, because of the way that codeine is transported. . . .

. . . .

Appellant’s counsel:      So the fact that he had money in his pocket allows to believe that he is a drug dealer.  Is that correct?  Do I understand your testimony right?

Sergeant Macintosh-Beatson: I didn’t make that assumption, no.

Appellant’s counsel:      Again then, tell the ladies and gentlemen of the jury just because he has the money does not mean he is a drug dealer, does it?

Sergeant Macintosh-Beatson: No.

          Officer Guerrero, a narcotics dog handler, was called to the scene to assist in the investigation.  His dog was trained to “alert” to heroin, crack, cocaine, codeine, methamphetamine, and marijuana, although the “alert” did not distinguish between any of those categories of narcotics.  Guerrero testified that his dog gave an alert on the cash found in appellant’s pockets.  Guerrero admitted he believed that a large percentage of currency has an odor of narcotics on it, and that he couldn’t determine whether a person committed a crime simply because the dog alerted that money contained an odor of narcotics.

          Officer Abraham Vanderberry, an officer assigned to the Special Investigations Command Narcotics Division, testified that, as an undercover officer, he purchased narcotics and specialized in curtailing narcotics trafficking.  He testified that codeine was commonly mixed with Promethazine in a bottle and “cut” with an over-the-counter medication such as Nyquil.  Officer Vanderberry testified that, although codeine syrups were often sold in baby bottles with ounce markings on the side, possession of such a baby bottle alone “would not be indicative of an individual that is selling.” 

Joseph Chu, an HPD Crime Laboratory chemist, testified regarding the chemical substance found in the baby bottle.  He testified that he believed the substance to be cough syrup containing codeine and Promethazine, a cough suppressant, but that he could not quantify the amount of Promethazine in the substance.

Appellant’s counsel moved for a directed verdict based on Chu’s testimony that he could not quantify the amount of Promethazine.  The trial court overruled the motion, and the jury found appellant guilty as charged.

ANALYSIS

I.       Sufficiency of the Evidence

Appellant was charged by information under sections 481.105(1) and 481.118 of the Health Safety Code.[1]  The jury was asked to determine whether it believed, beyond a reasonable doubt, that appellant

did intentionally or knowingly possess a controlled substance, to-wit: any compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs that also contain one or more non narcotic [sic] active medicinal ingredients in sufficient proportion to confer on the compound, mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone: namely, a compound containing not more than 200 milligrams of codeine per 100 millileters [sic] or per 100 grams, weighing by aggregate weight, including any adulterants or dilutants, less than 28 grams.

In his first and second point of error, appellant claims that the evidence regarding the quantity of Promethazine in the mixture in the baby bottle was legally and factually insufficient to support the guilty verdict.  Appellant also contends that the evidence regarding the quantity of codeine in the baby bottle was factually and legally insufficient to support the jury’s guilty verdict.

A. Promethazine present in “sufficient proportion” to confer “valuable medicinal qualities” other than those possessed by codeine alone.

To support the jury’s verdict, the evidence at trial must have been sufficient for the jury to find that the substance in the baby bottle contained both (1) “not more than 200 milligrams of codeine per 100 millileters [sic] or per 100 grams, weighing by aggregate weight, including any adulterants or dilutants, less than 28 grams” and (2) “one or more non narcotic [sic] active medicinal ingredients in sufficient proportion to confer on the compound, mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.” 

Appellant first focuses on this second prong, contending that the State has not proved that the nonnarcotic medicinal ingredient in the mixture, Promethazine, was present in the mixture “in a sufficient proportion to confer valuable medicinal qualities other than those possessed by [codeine] alone.” The State responds that it is not required to prove the quantity of the Promethazine present in the baby bottle, only that the Promethazine was present “in sufficient proportion to confer . . . valuable medicinal qualities.” 

In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder’s determination is manifestly unjust.  Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417.  To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the verdict.  Watson, 204 S.W.3d at 417.  Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the fact-finder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.”  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.

At trial, Officer Hobbs testified that the contents of the baby bottle had a “mediciney” smell.  Further, Chu, the HPD chemist, offered the following testimony at trial:

Q (State):    Now, based on your analysis of State’s Exhibit 2, the contents there, will you tell the jury what it contained, sir?

A (Chu):     This typical item contains two compounds.  The first one is codeine and the second one is Promethazine.

. . . .

Q:               What about Promethazine?

A:               Promethazine is typical medicine that is being prescribed by the physicians for the typical cough in patients.

. . . .

Q (Defense, on voir dire in presence of the jury):   Mr. Chu, were you able to determine the amount of Promethazine that was in the bottle?

A:               No, in the laboratory we don’t perform quantifications on the Promethazine as well as codeine.

Q:               You are not able to determine the quantity of Promethazine that was contained within the baby bottle.  Is that right?

A:               HPD has no policies and no procedure at the time to determine the amount of Promethazine that was contained within the bottle.

Q:               I understand but, yes or no, you were not able to determine the amount of Promethazine that was contained within the bottle?

A:               No.

. . . .

Q (State):    Based on your training and experience and the testing you did in the lab, did you determine whether the substance in that bottle had a compound containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters or 100 grams?

. . . .

A:               Usually you can see the contents in this bottle it is a liquid.  It is like a syrup material.  Most likely which we call cough syrup and cough syrups contain four compounds which is sugar, glucose, alcohols, which is ethanol, Promethazine and codeines.  Usually the cough syrups, the concentration of codeine will last [sic] 200 milligrams per 100 mil.

Q:               Now, does that mean if you can’t quantify, does that mean you cannot tell whether or not the substance that is brought to you contains codeine?

A:               It is absolutely codeine.  We can identify the compound.  However, we cannot determine the quantity.

. . . .

Q (Defense counsel, cross): Since you don’t have enough information to quantify how much Promethazine was in that solution, you cannot testify to the jury and tell them whether or not the Promethazine had a valuable medicinal quality, can you?

A:               Yes.  Promethazine has been identified in this syrup.

Q:               And Promethazine on its own has a valuable medicinal quality, doesn’t it?

A:               It has.

Q:               But the question is can the amount of Promethazine that is contained and identified in that substance carry on a valuable medicinal quality other than that possessed by the narcotic which is codeine?  There’s no way you can answer that because you cannot quantify how much was in there, correct?

A:               No, I cannot quantify it but the compound is identified and we know Promethazine it is a dangerous drug.  It has to be prescribed by physicians.

. . . .

          Q:               Do you know what is the purpose of Promethazine?

A:               Usually it is added for the cough syrups to ease the (unintelligible) and anti-inflammatory.

          Q:               And as a doctor when you prescribe cough syrup, the reason that you are prescribing that either can be to suppress the cough and have respiratory functions of an individual not be inflamed. Is that right?

          A:               For medical purpose?

Q:               Yes, sir, medical purpose.  My question, though, sir, is you know that that is what Promethazine is prescribed for, correct?

          A:               Yes.

Q:               But you do not know whether the amount, I think what you testified to, that is contained within that bottle had a valuable medicinal quality?

A:               I cannot testify for the quantity of the Promethazine existed there.

On redirect, the State elicited the following testimony from Chu:

Q:               Mr. Chu, you know beyond a reasonable doubt that there was codeine in this mixture, right?

A:               That’s correct.

Q:               You know beyond a reasonable doubt there is Promethazine in this mixture, right?

A:               That’s correct.

Q:               And you know beyond a reasonable doubt that Promethazine is used as a cough suppressant, right?

A:               That’s correct.

Q.               And you know beyond a reasonable doubt that there wasn’t more than 200 milligrams of codeine in that substance, right?

. . . .

A:               No, I haven’t seen any cough syrups more than 200 milligrams per hundred mil.

. . . .

Q:               And this entire substance, the codeine, the Promethazine, the sugar, the water, whatever was in there was not more than 28 grams, right?

A:               That’s correct.

Appellant points out that Chu was not able to quantify the amount of Promethazine in the baby bottle and thus he argues that Chu was not able to state that the mixture had valuable medicinal qualities other than those possessed by the codeine alone.  Chu’s testimony, however, described Promethazine as a substance that “on its own has a valuable medicinal quality” as a nonnarcotic cough-suppressant. Although Chu did not testify—and was never specifically asked—whether a  particular amount of Promethazine is required for Promethazine to be an effective medication for treatment of particular conditions, Chu’s testimony is clear that Promethazine is a “medicine” and that it “on its own has a valuable medicinal quality.”  The Court of Criminal Appeals, considering this evidence, held that “a jury could rationally find that the Promethazine (whatever its quantity in the substance) was ‘in sufficient proportion to confer on [the substance] valuable medicinal qualities.’”[2]  Sanchez, 275 S.W.3d at 905.

Accordingly, the evidence presented, viewed in the light most favorable to the prosecution, is sufficient to support the jury’s verdict that the baby bottle contained enough Promethazine to confer “valuable medicinal qualities” other than those possessed by the codeine alone.  Thus, the evidence was legally sufficient to support the jury’s verdict.  Clayton, 235 S.W.3d at 778; Sanchez, 275 S.W.3d at 905.  Similarly, viewing all of the evidence in a neutral light, we hold that the evidence supporting the jury’s conclusion that the amount of Promethazine present was sufficient to confer “valuable medicinal qualities” is not so weak that the verdict is clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence.  Steadman, 280 S.W.3d 242 at 246. 

B. A compound containing not more than 200 milligrams of codeine per 100 milliliters or 100 grams . . . weighing less than 28 grams.

Appellant also argues that the evidence is legally and factually insufficient to support the jury’s verdict that the substance in the baby bottle contained “not more than 200 milligrams of codeine, and any of its salts per 100 millileters [sic] and per 100 grams, weighing by aggregate weight, including any adulterants and dilutants, less than 28 grams.” 

Appellant first attempts to cast Chu’s testimony as being unable to discern whether the bottle contained codeine or another related compound such as codeine sulfate or codeine phosphate.  Chu, however, clearly testified that the baby bottle contained a substance with both “codeine” and Promethazine in it.  Chu also testified that the substance was, in his opinion, a cough syrup and that it “absolutely” contained codeine.  We also note that Officer Hobbs testified—without equivocation—that the bottle contained “liquid codeine.” 

Second, as to the concentration of codeine in the mixture, Chu’s testimony was sufficient to support a finding that the codeine was present in a concentration of not more than 200 milligrams of codeine per 100 milliliters or 100 grams.  Chu testified that “[u]sually the cough syrups, the concentration of codeine will last [sic] 200 milligrams per 100 mil,” and that he had not seen any cough syrups with a higher concentration of codeine. 

Finally, as to whether the substance in the bottle weighed less than 28 grams, Chu’s testimony was that “it is so obvious it should be less than 28 grams.”  We take this testimony to mean that the bottle contained less than 28 grams of liquid, and Chu’s testimony is thus sufficient to support the jury’s verdict that the substance within the bottle weighed less than 28 grams.  Chu also testified that 28 grams of syrup would be 16 ounces. The jury was shown the baby bottle, which had ounce markings clearly delineated upon it, and was free to decide for itself whether it agreed with Chu’s conclusion that the bottle was capable of containing more or less than that 16 ounces of the compound.   

We note that the State is not required to prove the amount of the controlled substance and the amount of adulterants and dilutants.  Instead, the State must prove only that the aggregate of the controlled substance, including adulterants and dilutants, if any, equals the minimum weight for the offense charged.  Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003).  In Dudley v. State, the Beaumont Court of Appeals held the evidence was both legally and factually sufficient to support a conviction for possession of a controlled substance under Penalty Group 4.  Dudley v. State, 58 S.W.3d 296, 300 (Tex. App.—Beaumont 2001, no pet).  In Dudley, when the defendant was arrested, the police seized a styrofoam cup containing a liquid that smelled like cough syrup.  Id. at 297.  Although the State’s laboratory analyst testified that she did not determine the concentration of codeine in the liquid, she did testify that the liquid contained both codeine and Promethazine.  Id. at 299.  She said, “And this is a combination commonly found in cough syrup type preparations that contain Codeine in a concentration of less than 200 milligrams per 100 milliliters of syrup.”  Id.  In addition, the written laboratory report provided identical information about the codeine concentration.  Id.

Similarly, the evidence presented in this case, when viewed in the light most favorable to the verdict, is sufficient to support the jury’s verdict that the baby bottle contained a compound that contained not more than 200 milligrams of codeine per 100 milliliters or 100 grams and that weighed less than 28 grams.  Clayton, 235 S.W.3d at 778.  Viewing all of the evidence in a neutral light, we hold that the evidence supporting the jury’s conclusion that the baby bottle contained a compound containing not more than 200 milligrams of codeine per 100 milliliters or 100 grams and weighing less than 28 grams is not so weak that the verdict is clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence.  Steadman, 280 S.W.3d 242 at 246.  We overrule appellant’s first and second points of error.

II.      Exclusion of Evidence

In his third point of error, appellant argues that the trial court erred by admitting evidence of $2,892.29 found in his front pants pockets at the time of his arrest.  In his fourth point of error, appellant argues that the trial court erred by admitting the testimony of Officer Hobbs, Officer Guerrero, Sergeant Macintosh-Beatson, and Officer Vanderberry.  Appellant argues that the evidence regarding the money and the testimony of these police officers should have been excluded because it was irrelevant and because its potential for prejudice outweighed its probative value.  Appellant also argues that admitting evidence of the money and the officers’ testimony “invited the jury to convict appellant of possession because he was a drug dealer in general.”

A.  $2,892.29

 Appellant complains that the trial court erred by admitting evidence that  officers found $2,892.29 in cash in his pockets at the time he was arrested.  On appeal, appellant argues that the money was irrelevant to the question at issue—whether he possessed the codeine cough syrup, and that the probative value of the money was outweighed by the potential for prejudice.  Essentially, appellant argues that the State, by informing the jury of the money in appellant’s pocket at the time of his arrest, attempted to imply that appellant was a drug dealer.  Appellant contends that such an implication ran afoul of Texas Rule of Evidence 404(b), which prohibits introduction of “other other crimes, wrongs or acts” to prove the character of a person in order to show action in conformity therewith.  Tex. R. Evid. 404(b).  Under the Rule, however, such evidence may be admissible for “other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Id.

As noted above, the trial court heard appellant’s motion in limine and reserved its ruling.  During Officer Hobbs’ initial testimony on direct examination, the State did not solicit evidence regarding the money during its direct examination of Officer Hobbs.  However, after Officer Hobbs’ cross-examination by appellant’s counsel and his testimony that appellant did not appear to be under the influence, smell like narcotics or appear to have any residue on his hands or clothes, the State again asked the court for permission to introduce testimony regarding the money.  The State argued that the money was relevant because, in the absence of evidence that appellant had ingested the narcotics, the money was an “affirmative link” establishing appellant’s possession of the baby bottle containing codeine.  The trial court then ruled that the money was admissible, but cautioned, “I don’t want there to be any implication or argument that he was dealing.”  The trial court explained that she was admitting evidence of the money only to show “an affirmative link.” 

After Officer Hobbs testified, the State called Sergeant Macintosh-Beatson.  Sergeant Macintosh-Beatson testified that he assisted Officer Hobbs in arresting appellant and that he performed a pat-down search of appellant.  Sergeant Macintosh-Beatson did not testify on direct that he found money in appellant’s pockets.  During cross-examination, appellant’s counsel asked whether Sergeant Macintosh-Beatson found drug paraphernalia in appellant’s pockets. Sergeant Macintosh-Beatson responded “I didn’t find any drug paraphernalia.  He did have a couple of wads of cash in his front pocket.” Appellant’s counsel later asked Sergeant Macintosh-Beatson whether possession of money tied appellant to the codeine, and Sergeant Macintosh-Beatson testified, “I think it does.” Sergeant Macintosh-Beatson admitted that the police officers did not observe a drug transaction, and that none had been reported.  However, he explained that the transportation of codeine in a baby bottle is a common method used by drug dealers. 

The evidence relating to the money in appellant’s pockets was relevant to the crime with which appellant was charged because it was an affirmative link to the codeine.  When an accused is charged with unlawful possession of drugs, the State must prove (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband.  Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  “When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that he had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link him to the contraband.”  Id. at 406.  Evidence that affirmatively links an accused to the substance is proof that he possessed it knowingly.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Affirmative links may be shown by direct or circumstantial evidence, but in either case it must establish to the requisite level of confidence that the accused’s connection with the drug was more than just fortuitous.  Poindexter, 153 S.W.3d at 405–06 (citing Brown, 911 S.W.2d at 747).  As explained in Poindexter, “The ‘affirmative links rule’ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.”  Id. at 406.

          The Court of Criminal Appeals has identified several admissible factors that help to establish affirmative links between the accused and the contraband, including whether: (1) the contraband was conveniently accessible to the accused; (2) the contraband was found on the side of the car where the accused was sitting; (3) the place where the contraband was found was enclosed; (4) traces of the contraband where found; and (4) a large sum of money was found on the accused.  Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006); Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  The number of factors supporting the evidence is not as important as the “‘logical force’ they collectively create to prove that a crime has been committed.” Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

          This Court has previously held that a large sum of money found in a defendant’s possession may be such an affirmative link showing possession of contraband.  See, e.g., Classe v. State, 840 S.W.2d 10, 12 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (large amount of cash on defendant was affirmative link to possession of contraband).  The Court of Criminal Appeals has noted the same. See, e.g., Evans, 202 S.W.3d at 62 n.12 (noting that “whether the defendant was found with a large amount of cash” is affirmative link in possession cases).

Appellant contends, however, that the prejudicial value of this evidence and the possibility that a juror might believe he was dealing drugs when he was charged only with the mere possession of drugs required the trial judge to exclude the evidence.  Under Texas Rule of Evidence 403, relevant evidence may be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”  Tex. R. Evid. 403; Lamb v. State, 186 S.W.3d 136, 143 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Rule 403 requires a trial court to balance the probative value of the evidence against its potentially prejudicial effect.  Montgomery v. State, 810 S.W.2d 372, 388–90 (Tex. Crim. App. 1990).  In performing this balancing analysis, the trial court is given wide discretion in determining the admissibility of evidence, and we will not disturb its ruling on appeal absent a showing of abuse of discretion.  Id. at 145 (citing Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)).

          In light of the facts of this case, including the fact that appellant denied possession of the narcotics, the State was required to use circumstantial evidence to show appellant’s possession of the codeine and the money provided an affirmative link between appellant and the codeine.  Accordingly, the probative value of the money outweighed the possibility of prejudice to appellant.  We hold the trial court did not err when it admitted evidence of the $2,892.29 in cash found in appellant’s pockets at the time of his arrest.

We overrule appellant’s third point of error.

B. Testimony of Officer Hobbs, Officer Guerrero, Sergeant Macintosh-Beatson and Officer Vanderberry

In his fourth point of error, appellant contends that the trial court erred by allowing the testimony of Officer Hobbs, Officer Guerrero, Sergeant Macintosh-Beatson and Officer Vanderberry.  On appeal, however, appellant does not specify the portion of these officers’ testimony to which he objects on appeal.  Instead, appellant’s brief generally states that “the testimony of Officers Hobbs, Macintosh-Beatson, Guerrero and Vanderberry was inadmissible evidence of extraneous criminal conduct under rule 404(b).”

Because appellant fails to identify the specific statements at issue, we have no way of ascertaining whether he preserved an objection to those statements at trial.  Tex. R. App. P. 33.1(a)(1)(A) (to preserve issue for appeal, appellate record must reflect that complaint was timely made to trial court stating ruling sought and grounds therefor with sufficient specificity to make trial court aware of complaint); Tex. R. App. P.  38.1(i) (appellate brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record); see also Mims v. State, 238 S.W.3d 867, 874 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (where appellant failed to specifically identify statement he claimed was hearsay, complaint on appeal was waived). 

We overrule appellant’s fourth point of error.

III.    Appellant’s Motion for Directed Verdict

In his fifth point of error, appellant asserts that the trial court erred by denying his motion for directed verdict.  At trial, appellant moved for a directed verdict of acquittal based on the State’s alleged failure to quantify the Promethazine in the substance contained in the baby bottle and its alleged failure to prove that appellant possessed codeine and not a related substance.  On appeal, appellant discusses Texas Rule of Evidence 702 and the reliability of expert testimony.  Appellant’s brief clearly takes issue with some opinion offered by Mr. Chu, but fails to specify which of his opinions that might be. 

We held above that the evidence of the chemical makeup of the substance in the bottle is legally and factually sufficient to support the verdict.  To the extent that appellant raises any other complaint, it is waived due to inadequate briefing and a failure to cite to specific portions of the record.  Tex. R. App. P. 38.1(i).  We overrule appellant’s fifth point of error.

IV.    Appellant’s Motion for New Trial

In his sixth point of error, appellant contends the trial court erred by overruling his motion for new trial.  However, appellant simply attaches his motion for new trial and states that he “incorporates those arguments into his brief and re-urges the points contained within.”  A mere reference by incorporation to a motion filed in the trial court, without a discussion of the issues raised in the motion in the body of the brief, is not sufficient to raise complaints on appeal.  Tex. R. App. P. 38.1(i); Sims v. Fitzpatrick, 288 S.W.3d 93, 104 (Tex. App.—Houston [1st Dist.]

2009, no pet.) (finding waiver where appellants complained of trial court’s failure to grant motion for new trial but failed to discuss merits of motion in their brief, only globally asserting that their “motion incorporated all the points of error raised thus far in this brief.”).

Accordingly, we overrule appellant’s sixth point of error.   

Conclusion

We overrule appellant’s points of error and affirm the judgment of the trial court.                                  

                                                          George C. Hanks, Jr.

                                                          Justice

Panel consists of Justices Keyes, Alcala and Hanks.

Do not publish.  See Tex. R. App. P. 47.2(b)

---

[1]           As the Court of Criminal Appeals noted, “It appears that appellant possessed a codeine-based cough medicine or syrup without a valid prescription.”  Sanchez, 275 S.W.3d at 905 n.7. 

Section 481.105 provides:

Penalty Group 4 consists of:

a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone: . . . . 

Tex. Health & Safety Code Ann. § 481.105(1)

Section 481.118 provides:

Offense: Possession of Substance in Penalty Group 4

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 4, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of practice.

(b) An offense under Subsection (a) is a Class B misdemeanor if the amount of the controlled substance is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

Tex. Health & Safety Code Ann. § 481.118 (a), (b) (Vernon 2003).

[2]           In its opinion reversing our previous opinion, the Court of Criminal Appeals specifically noted that 

Chu’s testimony did not . . . establish just the mere presence of Promethazine.  Rather, Chu’s testimony established the presence of Promethazine that “on its own has a valuable medicinal quality.  Evidence that the Promethazine in the substance “on its own has a valuable medicinal quality” is sufficient to support a finding that it was “in sufficient proportion to confer on the [substance] valuable medicinal qualities.”  Under these circumstances, the State was not required to quantify the Promethazine in the substance.

Sanchez, 275 S.W.3d st 905.