Ut Van Dao v. State ( 2020 )

Opinion filed October 30, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00271-CR
__________
UT VAN DAO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-17-1173-CR
MEMORANDUM OPINION
The jury convicted Ut Van Dao of possession of a controlled substance. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). The jury also
assessed his punishment at confinement for six months in a state jail facility and a
$7,500 fine. In two issues on appeal, Appellant contends that the evidence was not
legally sufficient to support his conviction and that the trial court erred in admitting
the controlled substance into evidence. We affirm.
Background Facts
On April 6, 2017, Corporal Robert Johnson of the Odessa Police Department
was dispatched to a Holiday Inn Express because of a reported disturbance. Upon
arrival, Corporal Johnson encountered Appellant sitting in the lobby and speaking
on his phone. Corporal Johnson approached Appellant and questioned him.
Appellant was slow to respond, and he appeared to be intoxicated. Corporal Johnson
arrested Appellant for public intoxication. See TEX. PENAL CODE ANN. § 49.02
(West 2011).
Corporal Johnson testified that he found a small, plastic baggie containing a
“white powdery substance” in Appellant’s coat pocket. Corporal Johnson then
performed a field presumptive test on the substance, which yielded a positive match
for cocaine. Corporal Johnson testified that he did not put any identifying marks or
any type of identification number on the baggie at the scene.
Corporal Johnson explained that he took the baggie back to the police station
and entered the information into the computer, printed a barcode, and placed the
baggie and barcode into another bag. Corporal Johnson testified that he then sealed
the bag and placed it “directly into a locked container at the police station.” When
the State opened a sealed envelope at trial and handed the envelope to
Corporal Johnson, he identified the contents as “the baggie that [he] removed from
[Appellant’s] left front coat pocket.”
Mallory Jenkins, a forensic chemist at the Texas Department of Public Safety
Crime Laboratory in Midland, testified that Andrew Busse from Ector County
delivered the sealed bag to the laboratory. After the sealed bag was delivered,
Jenkins gave the bag a “laboratory case number” and entered the information into
the laboratory’s computer system. Jenkins conducted a presumptive test and a gas
chromatography/mass spectroscopy (GCMS) analysis on the baggie’s contents, both
of which yielded a positive match for cocaine. The trial court admitted the baggie
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and its contents, along with Jenkins’s lab report, into evidence over Appellant’s
objection that the State had failed to establish a proper chain of custody.
Analysis
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. In his second issue, Appellant asserts that the trial court
erred by overruling his objection to admitting the baggie of cocaine into evidence
because the State failed to adequately establish the chain of custody. Appellant’s
evidentiary challenge is premised on his second issue—he contends that the cocaine
cannot be considered in assessing the sufficiency of the evidence because it should
not have been admitted into evidence.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty 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;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
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presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Appellant’s sufficiency challenge is based on a faulty premise. Under Winfrey
and Clayton, we are to consider all evidence admitted at trial, even if some pieces of
evidence were improperly admitted. Winfrey, 393 S.W.3d at 767; Clayton, 235
S.W.3d at 778. Accordingly, we consider the cocaine that was admitted into
evidence, as well as Jenkins’s testimony establishing that it was cocaine, irrespective
of whether the trial court erred by overruling Appellant’s objections based on the
chain of custody. See Winfrey, 393 S.W.3d at 767; Clayton, 235 S.W.3d at 778.
Considering the cocaine, along with Corporal Johnson’s testimony that he recovered
it from Appellant and Jenkins’s testimony that confirmed the substance contained
cocaine, we conclude that a rational trier of fact could have found that Appellant
possessed cocaine as alleged in the indictment. We overrule Appellant’s first issue.
With respect to Appellant’s second issue, we review a trial court’s ruling on
admissibility of evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253,
272 (Tex. Crim. App. 2010). This standard of review applies to the trial court’s
ruling on an authentication issue. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.
App. 2018). A trial court does not abuse its discretion by admitting evidence when
it “reasonably believes that a reasonable juror could find that the evidence has been
authenticated or identified.” Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App.
2007). We will uphold the trial court’s decision unless it lies outside the zone of
reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).
Rule 901 of the Texas Rules of Evidence governs the authentication
requirement for the admissibility of evidence and requires the proponent to produce
sufficient evidence to support a finding that the evidence is what the proponent
claims it is. TEX. R. EVID. 901(a); Fowler, 544 S.W.3d at 848. Part of the
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authentication test is whether the chain of custody was properly preserved.
Watson v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref’d);
Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San Antonio 2013, pet. ref’d).
The chain of custody is sufficiently authenticated when the State establishes “the
beginning and the end of the chain of custody, particularly when the chain ends at a
laboratory.” Watson, 421 S.W.3d at 190 (quoting Martinez v. State, 186 S.W.3d 59,
62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)). The State can prove links in
the chain with circumstantial evidence. Id. Without evidence of tampering, most
questions concerning the care and custody of a substance go to the weight of the
evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Any
intermediate gaps in the chain of custody go to the weight of the evidence,
particularly when the chain of custody ends at a laboratory. Martinez, 186 S.W.3d
at 62.
Appellant faults Corporal Johnson for not placing an identifying mark on the
baggie at the scene of the arrest. However, Corporal Johnson testified that he
transported the baggie to the police station at which point he logged it into the
department’s computer system, printed a computer barcode for the evidence, placed
the baggie and the barcode into a bag, sealed that bag, and then placed it into a locked
container for later processing by an evidence clerk. Appellant also asserts that the
evidence of the chain of custody is deficient because there was a lack of information
about, or testimony from, the person that transported the baggie to Jenkins.
However, this contention addresses an intermediate gap in the chain of custody that
goes to the weight of the evidence. See id. Given the evidence of the beginning and
the end of the chain of custody, and the absence of any evidence of tampering, the
trial court did not abuse its discretion by overruling Appellant’s objections to the
chain of custody. See Lagrone, 942 S.W.2d at 617; Martinez, 186 S.W.3d at 62. We
overrule Appellant’s second issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
October 30, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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