Jones v. State, 66229

• Decision Date: 24 June 1981
• Docket Number: No. 66229,No. 2,66229,2
• Citation: 617 S.W.2d 704
• Parties: Joseph JONES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 704

617 S.W.2d 704

Joseph JONES, Appellant, v. The STATE of Texas, Appellee.

No. 66229.

Court of Criminal Appeals of Texas, Panel No. 2.

June 24, 1981.

Jacobo G. Munoz, Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty., and Gregory Tella, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from an order revoking probation. On March 28, 1978, the appellant pled guilty to the offense of delivery of heroin; punishment was assessed at imprisonment for ten years, probated. In January, 1979, the State filed a motion to revoke probation alleging that the appellant delivered heroin to an undercover agent on September 14, 1978, and on October 17, 1978, in violation of the condition of probation that he commit no offense against the laws of this state. On April 20, 1979, the trial court revoked the appellant's probation and he was sentenced to imprisonment for ten years.

In his sole contention appellant urges that the trial court abused its discretion in revoking probation because the evidence is insufficient to show that he twice delivered heroin to an undercover agent. He says the evidence is insufficient because the State failed to establish a chain of custody for the heroin admitted in evidence by the court.

On October 17, 1978, Curtis Hildreth, an undercover narcotics agent, for twenty dollars purchased from the appellant a red balloon that the appellant said contained heroin. Thereafter, Hildreth delivered the balloon to O. A. Benavides, an agent with the County Sheriff's crimes task force assigned to take custody of evidence secured by Hildreth. Benavides marked the balloon with his initials, sealed it in an envelope (State's Exhibit 3A) and delivered it to James Waller, a Department of Public Safety chemist, for analysis. Waller initialed, dated and recorded the laboratory file number L3C-23517 on State's Exhibit 3A, placed it in a locker in the storeroom, and subsequently analyzed the contents of the balloon inside; he did not mark the balloon, other than with his initials. After such analysis was conducted, a vial (State's Exhibit 3C) containing the residue of heroin was marked with the number L3C-23517, placed together with the balloon (State's Exhibit 3B) inside State's Exhibit 3A and sealed by Waller to be returned to Benavides for trial.

At trial, Waller was unable to positively identify State's Exhibit 3B as being the balloon obtained from State's Exhibit 3A since it was not marked with the laboratory file number L3C-23517. The appellant objected that State's Exhibit 3B and 3C were therefore inadmissible urging that the chain of custody was not established during the handling of State's Exhibit 3B at the D.P.S. laboratory.

Although Waller did not positively identify State's Exhibit 3B, the following colloquy occurred as he was being questioned by the State:

"Q. (PROSECUTOR): I will show you State's Exhibit 3B and ask you if that is what you found inside (State's Exhibit 3A)?

"A. Yes. This has my initials on it. I did not mark it with the laboratory case number.

"Q. Assuming it came out of 3B, would that have been the same evidence that you received?

"A. Yes, sir. Even though I didn't mark it I am extremely careful not to get different things mixed up with different containers.

"Q. What did you find inside 3A?

"A. There was a red balloon. The red balloon had a tin foil package inside of it and there was powder inside the tin foil. The weight of the powder was .05 grams, and it contained heroin heroin was slightly less than one percent, .9%.

"Q. After conducting the analysis on the powder in the balloon what did you do with the balloon and with any powder that might have been left over?

"A. The records indicate there was no powder left in the original form. It was all used in the analysis, however, some residue that was left was placed in here.

"Q. And you are talking about a vial which has been marked State's Exhibit 3C for identification?

"A. Yes, sir.

"Q. What about the balloon?

"A. The balloon also would have been placed back in the envelope.

"Q. Was the envelope then sealed by you?

"A. Yes, sir.

"Q. What was done with it then?

"A. It was placed back in the storeroom and given to Agent Benavides at a later date.

"Q. Was it given to Agent Benavides in a sealed condition?

"A. Yes, sir."

There is no evidence suggesting that State's Exhibit 3B, which was initialed by both Benavides and Waller, was tampered with or misplaced while at the D.P.S. laboratory. We find that the chain of custody was sufficiently shown for the admission of State's Exhibits 3B and 3C; the appellant's objection would be to the weight rather than the admissibility of the evidence. See Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977); Salinas v. State, 507 S.W.2d 730 (Tex.Cr.App.1974); Montgomery v. State, 506 S.W.2d 623 (Tex.Cr.App.1974); Darrow v. State, 504 S.W.2d 416 (Tex.Cr.App.1974); Kilburn v. State, 490 S.W.2d 551 (Tex.Cr.App.1973); Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1972). An object offered in evidence should not be rejected merely because it is not positively identified. Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975); Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974). We do not reach the appellant's challenges with regard to the other alleged probation violation.

The trial court did not abuse its discretion in revoking probation. The judgment is affirmed.

CLINTON, Judge, dissenting.

This is an appeal from an order revoking probation. Appellant's punishment was assessed at ten years confinement.

Upon his plea of guilty, appellant was convicted of the offense of delivery of heroin and was assessed a ten year sentence; however, imposition of the sentence was suspended and appellant was placed on probation.

Thereafter, the State filed a motion to revoke probation, alleging that appellant had violated the term of his probation that he "commit no offense against the laws ...," by delivering heroin to Curtis Hildreth on September 14, 1978, and again on October 17, 1978.

On appeal, the sole ground of error asserts that the evidence is insufficient to support the trial court's finding that appellant twice delivered heroin as alleged by the State. Specifically, appellant contends that the State failed to establish, by a preponderance of the evidence, that the substance determined by chemical analysis to be heroin, was in fact the same substance Curtis Hildreth testified he purchased from appellant on each occasion in question. We agree, and accordingly reverse.

At the April 20, 1979 hearing on the motion to revoke, the State called the same three witnesses to establish the "chain of custody" in each transaction: Curtis Hildreth, an undercover narcotics task force agent; O. A. Benavides, an agent with the County Sheriff's crimes task force; and James F. Waller, a Department of Public Safety chemist.

Hildreth testified that on September 14, 1978 he and a woman he characterized as a "female subject" ¹ went to an apartment complex looking for someone named "Martie," who was to provide him with heroin. "Martie" directed him and the woman to another apartment where he found appellant and several others, none of whom were acquaintances. While admitting it very unusual, Hildreth testified he was able to easily buy a "paper" of heroin from appellant for $20.00, without saying "Martie" had sent him. Hildreth and his companion then left to meet other task force officers at a prearranged location.

Benavides testified that he accompanied Hildreth from a distance to the Blue Jay Apartments and observed him exit his van and walk toward the buildings. According to Benavides, Hildreth was at all times alone. Benavides later met Hildreth at a prearranged location.

According to Hildreth, he conducted the "field marquis reaction test" on the substance contained in the tinfoil "paper" he obtained from appellant, then provided an envelope which Benavides grabbed from him; Hildreth testified that he observed Benavides put the "paper" inside the envelope, mark the envelope and seal it. Benavides, however, testified that it was he who conducted the field reaction test on the powder; he additionally stated that after he placed the tinfoil "paper" in the envelope, he parted from Hildreth, went back to the station and there marked the envelope and sealed it.

At any rate, the witnesses did agree that Hildreth did not in any manner mark the "paper" he allegedly obtained from appellant. Thus, Hildreth was unable to state with certainty that either the tinfoil "paper" (State's Exhibit ² 2B) or the envelope (SX 2A) was the same as those involved in the September 14 transaction. ³

Benavides testified that after he returned to his office, marked and sealed SX 2A, the envelope, he placed it in a locked drawer, to which he possessed the only key, inside a vault. The next day he removed the sealed envelope and delivered it to the Department of Public Safety lab. Though Benavides did not remember to whom he handed the envelope, he stated he had to "sign in" for it.

James Waller testified that he received SX 2A directly from Benavides, but according to the chemist, this occurred on October 2, 1978, rather than September 15 as related by Benavides. Waller marked the envelope and "paper," with his initials, the date and a "lab case number," returned the "paper" into the envelope, sealed it, stored it, completed an analysis of the approximately .05 grams of powder contained therein on December 12, 1978, put the remaining powder in a vial (SX 2C), which was placed along with the...