Hernandez v. State

• Decision Date: 28 February 2000
• Citation: 13 S.W.3d 492
• Parties: (Tex.App.-Amarillo 2000) RICKY HERNANDEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 07-98-0322-CR
• Court: Texas Court of Appeals

Page 492

13 S.W.3d 492 (Tex.App.-Amarillo 2000)

RICKY HERNANDEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 07-98-0322-CR

Court of Appeals, Seventh District of Texas

February 28, 2000

Rehearing Overruled March 28, 2000

From the 364th District Court of Lubbock County; No. 97-426278; Honorable Bradley S. Underwood, Judge

Affirmed.

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Before Boyd, C.J., Reavis, and Johnson, JJ.

OPINION

Phil Johnson, Justice

Our opinion of January 5, 2000, is withdrawn and this opinion is substituted in its place. Our judgment of January 5, 2000, is also withdrawn and judgment affirming the trial court judgment is substituted in its place. Tex. R. App. P. 50.

Appellant was convicted by a jury of possession with intent to deliver more than four grams but less than 200 grams of cocaine. The jury assessed his punishment at confinement for 25 years and a $6,000 fine. Appellant raises 11 issues. We affirm.

I. FACTUAL BACKGROUND

On August 10, 1997, an officer from the Lubbock Police Department was dispatched on a domestic dispute involving appellant's alleged assault of his girlfriend. The officer proceeded to the residence and upon entering found a loaded pistol inside a shoe which was next to the sofa where appellant was sleeping. An unloaded shotgun was also discovered. The officer arrested appellant for aggravated assault and searched him. Two plastic bags containing 11 smaller bags of cocaine, weighing 7.29 grams, were found in appellant's front pants pocket.

After placing appellant in the police car, the officer re-entered the residence with appellant's girlfriend and discovered additional items near the sofa, including a shotgun, a pistol, a knife, a set of scales, a plate with a rolled up dollar bill containing white residue, a set of rolling papers, and a bag containing ammunition. Appellant was indicted and convicted for the offense of possession with intent to deliver more than four grams but less than 200 grams of cocaine.

II. LEGAL AND FACTUAL SUFFICIENCY OF EVIDENCE

By his first and second issues, appellant contends that the evidence was legally and factually insufficient to prove that the substance in the bags in his pocket was cocaine.

When both the legal and factual sufficiency of evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Clewis, 922 S.W.2d at 129; Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991). We should uphold the jury's verdict unless it is irrational or unsupported by more than a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).

If the evidence is legally sufficient to support the verdict, we proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. In our review, we evaluate all the evidence without employing the prism of "in the light most favorable to the prosecution." Id. at 129. We therefore consider all of the evidence, comparing evidence that tends to prove the existence of disputed facts with evidence that tends to disprove such facts. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We should set aside the verdict only when the factual finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135. In doing so, we must be mindful that the jury is the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164.

Regarding legal sufficiency, the indictment charged that on or about August 10, 1997, appellant "did then and there intentionally and knowingly possess, with intent to deliver, a controlled substance listed in penalty group one, namely Cocaine, by aggregate weight, including adulterants and dilutants, less than two hundred (200) grams but at least four (4) grams." This charge is pursuant to section 481.112 of the Texas Health and Safety Code. Tex. Health & Safety Code Ann. § 481.112 (Vernon Supp. 2000). Appellant contends that because no laboratory testing was performed to determine the "purity" of the substance, it is not possible to prove that appellant actually possessed a controlled substance. Thus, appellant reasons, if an adulterant or dilutant affects the chemical activity and makeup of the substance, the substance could be an analogue or precursor of cocaine and should not be considered a controlled substance. Appellant relies on sections 481.123 and 481.112 of the Texas Health and Safety Code, contending that section 481.112 does not apply to an analogue of cocaine.¹

An adulterant or dilutant is defined 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. Tex. Health & Safety Code Ann. § 481.002(49) (Vernon Supp. 2000). The State must prove that a controlled substance, plus adulterants and dilutants, weighs at least as much as the minimum weight alleged in the indictment. Reeves v. State, 806 S.W.2d 540, 542 (Tex.Crim.App. 1990). The State is not required to prove that the added adulterants or dilutants did not affect the chemical activity of a controlled substance. Warren v. State, 971 S.W.2d 656, 660 (Tex.App.--Dallas 1998, no pet.); Williams v. State, 936 S.W.2d 399, 405-06 (Tex.App.--Fort Worth 1996, pet. ref'd).

The State presented testimony from James Thomas, an employee of the Texas Department of Public Safety (DPS) in Lubbock. He testified that he had degrees in chemistry and biology, was trained by the DPS laboratory in Austin, was a member of the Southwest Association of Forensic Scientists, and had approximately 13 years experience supervising the Lubbock laboratory. Thomas testified that the bags taken from appellant's pocket were tested at the Lubbock DPS laboratory. The testing revealed that the substance from the bags contained cocaine together with adulterants and dilutants, and weighed 7.29 grams. The record does not contain evidence that the substance in question was an analogue of cocaine.

When viewed in the light most favorable to the prosecution, Thomas's testimony is sufficient for us to conclude that a rational trier of fact could have found the existence of all the elements of the crime of possession of a controlled substance, cocaine, in an amount of less than 200 grams but at least four grams, beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Geesa, 820 S.W.2d at 156-57. We overrule appellant's first issue.

Regarding factual sufficiency, appellant did not produce any evidence controverting the weight or "purity" of the cocaine in support of his theory challenging the State's evidence. The verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135. We overrule appellant's second issue.

III. EXTRANEOUS OFFENSES DURING THE GUILT OR INNOCENCE PHASE OF TRIAL

By his third issue, appellant contends that the trial court erred in denying his motion for mistrial because of the prosecutor's efforts to introduce evidence that appellant had committed acts of domestic violence. Appellant asserts that the acts of domestic violence were inadmissible under Rule 404(b) of the Texas Rules of Evidence.

The State responds that the evidence should be considered "same transaction" contextual evidence, and is therefore admissible because the evidence is closely connected with the offense at trial. The State cites Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App. 1991). Mayes notes that "same transaction" contextual evidence should be admitted "[t]o show the context in which the criminal act occurred . . . under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of the act so that they may realistically evaluate the evidence." Id. at 86. The State also asserts that Mayes supports admission of the type of evidence complained of by appellant where several crimes are intermixed, or blended with one another, or so connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, by any one of them cannot be given without showing the others. Seeid. at 86, n.4, (quoting Nichols v. State, 97 Tex.Crim. 174, 260 S.W. 1050 (1924)).

Generally, evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. Tex. R. Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id. The admissibility of extraneous offenses is determined by a two-part test. First, the trial court must determine whether the extraneous offense is relevant to a material, contested issue in the case other than the defendant's character. Montgomery v. State, 810 S.W.2d 372, 387-89 (Tex.Crim.App. 1990). Second, the relevancy value of the evidence must outweigh its inflammatory or prejudicial potential. Id. at 388. We review the trial court's actions regarding the admissibility of such evidence under an abuse of discretion standard. Id. at 391. As long as the trial court's ruling was at least within the "zone of reasonable disagreement," an appellate court will not find error. Id.

During the arresting police officer's trial testimony,...