Arceneaux v. State

• Decision Date: 23 July 1987
• Docket Number: No. 01-86-00948-CR,01-86-00948-CR
• Citation: Arceneaux v. State, 735 S.W.2d 606 (Tex. App. 1987)
• Parties: Robert Earl ARCENEAUX, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 606

735 S.W.2d 606

Robert Earl ARCENEAUX, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-00948-CR.

Court of Appeals of Texas Houston (1st Dist.).

July 23, 1987.

Rehearing Overruled Aug. 31, 1987.

Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Harris County Asst. Dist. Atty., Houston, for appellee.

Before EVANS, C.J., and COHEN and HOYT, JJ.

OPINION

EVANS, Chief Justice.

A jury convicted the appellant of delivery of cocaine, weighing less than 28 grams enhanced by a prior felony conviction, and assessed punishment at 50 years confinement and a $10,000 fine.

Houston Police Officer Cedric W. Johnson testified that, while working as an undercover officer for the Baytown Police Department, he purchased a "rock" of cocaine from the appellant for $20. Johnson's partner, E.L. Wittaker, also purchased cocaine from another source at the same location. Officer Johnson testified that as soon as he made the purchase, he put the cocaine in an ash tray and drove to the Baytown Police Department, where he delivered the substance to Detective James Thornton.

Detective Thornton testified that when he received the small rock of cocaine from Officer Johnson, he placed the rock in a small, clear envelope and typed a submission form to the Department of Public Safety Laboratory. He then placed the clear envelope containing the rock and the form in an another envelope, and placed the envelope in his desk, which he locked. The next day, Thornton personally delivered the envelope to the Department of Public Safety Laboratory. At trial, Thornton identified State's Exhibit 1 as the envelope in which he had placed the submission form and rock and State's Exhibit 2 as the packet in which he placed the rock. He also stated that the rock was in the exhibit packet when he delivered the package to the lab.

Lou Haby, a Department of Public Safety chemist, testified that State's Exhibit 2, a plastic ziplock bag, was inside State's Exhibit 1, which was sealed when received, and that State's Exhibit 2 contained .05 grams of cocaine. Haby stated that because the rock was small, he used the entire rock for analysis, and none remained after testing that could be admitted in evidence at trial. The State then admitted State's exhibits 1 and 2 into evidence.

In his first point of error, the appellant contends that the evidence is insufficient because the cocaine was not introduced into evidence, and the court's charge contained the following instruction:

Before you would be warranted in convicting the defendant you must find from the evidence beyond a reasonable doubt that the exhibit introduced in evidence by the State is cocaine. (Emphasis added.)

Now, if you find from the evidence beyond a reasonable doubt that on or about the 29th day of April, 1986, in Harris County, Texas, the defendant, Robert Earl Arceneaux, did then and there intentionally or knowingly deliver by actual transfer to C.W. Johnson, a controlled substance, namely, cocaine, weighing by aggregate weight, including any adulterants or dilutants, less than 28 grams, then you will find the defendant guilty of delivery of a controlled substance as charged in the indictment.

The State did not object to the charge, and the appellant argues that the charge placed the burden on the State to produce an exhibit in evidence that the jury could have found beyond a reasonable doubt was cocaine.

This same contention was raised in Lozano v. State, 676 S.W.2d 433 (Tex.App.--Waco 1984, no pet.), where the court's charge instructed the jury not to convict the defendant "unless the exhibits introduced in evidence by the State are marijuana," and where the marijuana had been destroyed prior to trial. There the court found that the evidence was sufficient to support the appellant's conviction and held that the instruction was "merely surplusage and must be construed as an inadvertent or clerical error on the part of the court." 676 S.W.2d at 436.

We agree with the Lozano holding and find that in viewing the charge as a whole, the instruction was surplusage and not a matter that "describes or explains an essential element of the offense charged." See Ortega v. State, 668...