Ash v. State, No. 08-04-00046-CR (TX 2/16/2006), 08-04-00046-CR.

CourtSupreme Court of Texas
PartiesPATRICK ASH, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNo. 08-04-00046-CR.,08-04-00046-CR.
Decision Date16 February 2006

Appeal from the County Court at Law No. One of El Paso County, Texas, (TC# 20020C18141).

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.



This is an appeal from a jury conviction for the offense of possession of marihuana in an amount of two ounces or less. The court assessed punishment at a fine of $750. We affirm.


The evidence at trial revealed that on November 22, 2002, at about 9:14 p.m., Officer Adrian Armendariz and Officer Jon Eric Romero of the El Paso Police Department observed two vehicles traveling westbound as the officers traveled eastbound on James Watt Street. The vehicles were traveling side-by-side on a two-lane, two-way road. As the vehicle that Appellant was driving was on the wrong side of the road, they stopped that vehicle. Officer Romero saw two passengers in the vehicle. As he approached them, he noticed a slight odor of marihuana. Warrant checks were run on all the occupants of the car and the check revealed that Appellant's driver's license was suspended and he was arrested for driving with a suspended driver's license. The officers performed a quick pat-down search for weapons before placing him in the car, and they found nothing.

Upon arrival at the police station, Officer Romero performed a thorough search of Appellant and a baggie of marihuana was found in the insole of his left shoe. Officer Romero testified that he weighed the marihuana and did the requisite paperwork. He tagged the marihuana exhibit, put it in an envelope, and put it in the narcotics locker to be picked up and tested.

Rafael Tamez, a police toxicologist with the El Paso Police Department crime lab, testified that at the time he received the envelope, he placed his initials on both the envelope and the bag which contained the substance. He brought the envelope, identified as State's Exhibit 1, to court. Tamez testified that he tested the substance and it proved to be marihuana. The exhibit was not admitted into evidence.

The witness was then asked by the prosecutor for the name of the person from whom the marihuana was seized, and Appellant objected on the ground of hearsay. The prosecutor then established the business record predicate for the chain of evidence form and offered that form into evidence. Appellant objected that the form was not a business record in that it was a police report being utilized for the purpose of litigation. Appellant's objection was overruled and the form was admitted as State's Exhibit 2. The writing on the form included Appellant's name, the date of the offense and the police case number. It showed the results of Tamez's tests—that the substance was marihuana weighing 0.21 ounces.

The prosecutor then offered another chain of evidence form into evidence as State's Exhibit 3. Appellant objected that the form was hearsay. Tamez testified that the form was the chain of evidence form that was submitted with the marihuana to the lab, and that State's Exhibit 3 was the first page of the form, and State's Exhibit 2 was the second page of the form. The trial court sustained Appellant's objection because the writing on the form did not belong to Tamez and State's Exhibit 3 was not admitted into evidence at that time. Tamez then testified over Appellant's objection that the name on State's Exhibit 2 was Patrick Ash. The State then rested. Appellant then moved for a directed verdict stating that the State had failed to prove the chain of evidence and that there was no evidence that the substance Tamez tested was actually the substance seized from Appellant. The trial court made an inquiry to determine if Tamez had testified as to the weight of the marihuana and the State responded that the weight was on the chain of evidence form. The court also questioned if the marihuana had been affirmatively linked to Appellant. The prosecutor responded that the information was on State's Exhibit 3 which the court had not allowed into evidence. The prosecutor asked for permission to reopen the case to allow Tamez to testified regarding the chain of evidence. The court then adjourned for the day.

The next day, after hearing argument from both parties, the court overruled Appellant's objections and allowed the State to reopen. Officer Romero testified that when he took possession of the marijuana from Appellant, he weighed it, he put the case number on the envelope, the date, his ID number and then the envelope was sealed and his initials were placed on both sides of the envelope. The envelope was then placed in the narcotics locker. Officer Romero was then shown State's Exhibit 3 and he identified it as the first page of the chain of evidence form that he filled out and had attached to the envelope with the marihuana seized from Ash. Over Appellant's objection, the court admitted State's Exhibit 3 into evidence. Officer Romero testified that State's Exhibit 3 demonstrated that the substance was tested and that it was marihuana weighing 5.84 grams. The form also indicated that the witness had written his initials, demonstrating that he was the submitting officer.

Rafael Tamez then testified that the weight of the marihuana in the envelope was 0.21 ounces which was a usable quantity of marihuana. The State rested.


In Issue No. One, Appellant contends that the evidence was legally insufficient to support the conviction. Specifically, Appellant asserts that no one testified regarding the weight of the marihuana or that it was a usable amount. Appellant also argues that the State failed to connect the marihuana that was found by Officer Romero on Appellant to the marihuana that was tested by Rafael Tamez.

In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.-El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.-El Paso 1995, pet. ref'd). In assessing the sufficiency of the evidence, the reviewing court must consider all the evidence that was before the jury, whether rightly or wrongly admitted. Nelson v. State, 893 S.W.2d 699, 704 (Tex. App.-El Paso 1995, no pet.).

Regarding the weight of the marihuana, there was direct evidence from Officer Romero that the marihuana weighed 0.265 ounces. The police toxicologist, Rafael Tamez, testified that the marihuana weighed 0.21 ounces. It was incumbent upon the State to prove that the marihuana weighed two ounces or less. We find that there was direct evidence concerning the weight of the marihuana.

It was also necessary for the State to prove that the marihuana was of a usable quantity. Lejeune v. State, 538 S.W.2d 775, 777-78 (Tex. Crim. App. 1976). Rafael Tamez testified that the amount of marihuana seized from Appellant was a usable quantity. The evidence is sufficient with regard to that element of the offense.

Next, Appellant asserts that the State failed to prove that the marihuana tested by Rafael Tamez was the same marihuana seized from Appellant. Therefore, the evidence was insufficient to prove that he possessed the marihuana.

In order for the results of an item tested in a laboratory to be admissible in evidence, a proper chain of custody must be established. Penley v. State, 2 S.W.3d 534, 537 (Tex. App.-Texarkana 1999, pet. ref'd), cert. denied, 530 U.S. 1243, 120 S.Ct. 2689, 147 L.Ed.2d 961 (2000); Moone v. State, 728 S.W.2d 928, 930 (Tex. App.-Houston [14th Dist.] 1987, no pet.) (citing Brown v. State, 156 Tex. Crim. 144, 240 S.W.2d 310, 311 (Tex. Crim. App. 1951); Lynch v. State, 687 S.W.2d 76, 77-78 (Tex. App.-Amarillo 1985, pet. ref'd)). Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration. Stoker, 788 S.W.2d at 10; Penley, 2 S.W.3d at 537. Any gaps in the chain...

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