Opinion
Nos. 05-04-00860-CR, 05-04-00861-CR
Opinion Filed July 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-73677-PI, F03-52438-LI. Affirm.
Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
MEMORANDUM OPINION
Berlin Renauldo Nelson appeals his convictions for unlawful possession of twenty-eight grams or more of codeine and less than one gram of cocaine. After the jury found appellant guilty, the trial court found appellant had a prior felony conviction and sentenced him to twelve years' imprisonment for possession of codeine and two years' confinement in a state jail for possession of cocaine. In nine points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial court erred in not submitting a lesser included offense. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. We affirm the trial court's judgment.
FACTUAL BACKGROUND
The Dallas Police Department had received a complaint that drug dealing was occurring at an apartment building in Dallas. On June 10, 2003, Dallas Police Officer Patrick Starr watched the apartment building and saw about thirty people in twenty minutes walk up to a window on the ground floor of the building, pass money through the barred window, and receive something in return from the man inside the apartment. Starr believed he was watching drug transactions, and he called for back up. Just before the officers approached the apartment, Starr saw a man come downstairs to the apartment, receive a bundle of cash from the man inside the apartment, and start to walk back upstairs. Starr gave the signal for the officers to approach the building. The man who had just received the bundle of cash ran to an upstairs apartment. Starr remained watching until another officer got to the door of the downstairs apartment. During the twenty minutes Starr watched the apartment, no one entered or left it. One officer looked through the barred window and saw appellant holding two baggies of marijuana. When appellant saw the officer at the window, he froze momentarily and stared at the officer. The officer shouted at appellant not to move, but appellant pushed the baggies of marijuana to the floor toward the window, turned, and ran toward the doorway of the room. The officers then entered the apartment and found appellant there; no one else was in the apartment. On a table next to the barred window that Starr had been watching were three jars containing a purple fluid, a plate with five small tan rocks packaged in small, clear-plastic bags, two vials containing what the police believed to be PCP, and brown cigarettes for dipping into the PCP. When the officers arrested appellant, they asked him his name, and appellant told them his brother's name instead of his own name. The officers also arrested the man upstairs who had collected the money from the man at the window; he had over one thousand dollars in his possession. Matthew Lambing, a supervisor of the drug-analysis unit of the Southwest Institute of Forensic Sciences, testified the purple fluid was analyzed and found to contain codeine and promethazine. He testified the liquid weighed 132 grams, of which 44 milligrams was codeine and the remainder was adulterants or dilutants. The codeine solution was at a concentration of 36 milligrams of codeine per 100 milliliters. Lambing also testified the tan rocks were tested and found to weigh 0.96 gram including adulterants or dilutants and contained 0.82 gram of cocaine. Appellant did not testify at trial but presented evidence that "Ralph Hernandez" was the lessee of the apartment on June 10, 2003.LESSER INCLUDED OFFENSE
In his first point of error, appellant contends the trial court erred in denying his request for a charge on the lesser included offense of possession of less than 28 grams of codeine. The evidence tested by the chemist was the liquid contents of three small, clear-glass jars containing purple liquid. The total weight of the liquid in all three jars was 132 grams. The chemist did not test the solution in each jar individually but mixed samples drawn from the three jars and tested the mixture. Appellant argues he was entitled to the lesser included offense instruction because of the possibility that one of the jars contained less than 28 grams of liquid or that one of the jars may have contained no codeine. To be entitled to a jury charge on a lesser included offense, the offense must be a lesser included offense and there must be some evidence that if appellant is guilty, he is guilty of only the lesser included offense. Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005). For purposes of this opinion, we will presume appellant properly requested submission of a lesser included offense. Thus, we must determine whether some evidence exists that appellant was guilty of only possession of less than 28 grams. The 132 grams of liquid was distributed between three small, clear-glass jars. Thus, if the liquid was equally distributed between the jars, then they each contained 44 grams of liquid. If the jars were equally filled, then appellant, if guilty, could not be guilty of only the lesser included offense of possession of less than 28 grams because each jar contained more than 28 grams. Appellant argues it is possible the jars may not have been equally filled and one of the jars may have contained less than 28 grams and may be the only jar with codeine. We disagree. For one of the jars to contain less than 28 grams, the other two jars would have to contain at least 52 grams each. Thus, the jar with less than 28 grams would have to contain 46 percent less liquid than the other two jars. State's exhibit 6 is a picture of the three jars. Two of the jars are side-by-side, and the third jar is behind the left-hand jar. The picture was taken from an angle slightly above and to the right of the jars. The level of the two jars in front is clear: they each contain similar amounts of liquid, with the left-hand jar appearing to contain slightly less than the right-hand jar. The level of the liquid in the third jar positioned behind the left-hand jar is discernible, and that jar contains a similar amount of liquid to the other two jars. The record does not show that any jar contained 46 percent less liquid than the other jars. We conclude no evidence shows that if appellant is guilty, he is guilty only of possession of less than 28 grams of codeine. We overrule appellant's first point of error.SUFFICIENCY OF THE EVIDENCE
Appellant's second through ninth points of error challenge the legal and factual sufficiency of the evidence. In determining the legal sufficiency of the evidence, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004).Adulterants or Dilutants
In the second and fifth points of error, appellant first contends the evidence is legally and factually insufficient to show the material other than codeine in the purple liquid was "adulterants or dilutants." Relying on Hickman v. State, 835 S.W.2d 244, 247 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd), appellant argues the State had to prove the adulterants or dilutants did not affect the chemical activity of the illegal substance. However, the legislature has since amended the definition of "adulterant or dilutant" to mean "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(59) (Vernon Supp. 2004-05) (emphasis added); see Warren v. State, 971 S.W.2d 656, 660 (Tex.App.-Dallas 1998, no pet.). Accordingly, we conclude that portion of Hickman has been superseded by statute. Appellant also argues the evidence is legally and factually insufficient to prove the material in the purple liquid other than the codeine was "adulterants or dilutants." We disagree. Lambing testified that "[a]dulterants and dilutants are any substance that can be added to a controlled substance to increase its bulk or quantity without affecting the narcotic itself." After testifying the purple liquid contained 44 milligrams of codeine, defense counsel posed the following question:Q. If we take 132 grams and subtract .044 grams the remaining will be the adultrants [sic] or the dilutants?A. That is correct. We conclude the evidence is legally and factually sufficient to show the material other than the codeine was adulterants or dilutants.
Presence of Codeine
Appellant also argues the evidence is legally and factually insufficient to show appellant possessed any codeine instead of codeine phosphate or codeine sulfate. The State asserts appellant was charged with possession of codeine under Penalty Group 4, which consists of:a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:
not more than 200 milligrams of codeine per 100 milliliters or per 100 grams. . . .Tex. Health Safety Code Ann. § 481.105(1) (Vernon 2003). Unlike the codeine in Penalty Groups 1 and 3, which specifically define codeine as including its salts, the codeine in Penalty Group 4 does not include the salts. Compare Tex. Health Safety Code Ann. §§ 481.102(3)(A) .104(a)(4) with id. § 481.105(1). Appellant argues the burden was on the State to prove the substance in the purple liquid was in fact codeine as opposed to one of its salts, such as codeine phosphate or codeine sulfate. The report of the chemical analysis of the purple liquid stated, "The purple liquid contained codeine and promethazine." Lambing testified that the lab analysis "identified codeine, not as a salt, but as the base." On direct examination, Lambing testified that the chemist who tested the drugs first performed the qualitative test, mass spectrometry, to identify any controlled substances present in the liquid. "Once she identified that there was a controlled substance present, then she did a gas chromatograph quantitative analysis to find out how much controlled substance was present." On cross-examination, Lambing was asked to give an overview of how mass spectrometry determines the presence of a controlled substance.
A. . . . The front end of a mass spectrometer is what is called a gas chromatograph. And what a gas chromatograph does is it turns a liquid sample into a gas and separates it by its components.
Once these components are separate, they enter this detector called the mass spectrometer. Once entering the mass spectrometer, the compounds are bombarded with electrons causing them to break apart and be ionized in unique patterns.
Each compound breaks apart from this bombardment in the same pattern repetitively. So every time a codeine sample is run, it always falls apart the same way. And when a cocaine sample falls apart, it falls apart the same way.
That way when we have an unknown, we can look at its fragment pattern against a known and say that its unique fingerprin[t]s, its molecular fingerprint is the same; thus, we can render a result from the fragmentation pattern.After discussing the chemical composition of codeine, the cross-examination continued to discuss the workings of the mass spectrometer:
Q. You've got your 12 carbons. You've got your hydrogen, 21 of them. You've got your nitrogen. What are the largest pieces that are identifiable here?
A. They are not identified by their elemental arrangement. . . . They are identified-let me see if I can explain a little bit easier. Let's say we go out here to Commerce Street, we go around the corner, and our car hits another car . . . and the bumper comes off. . . . The bumper is a fragment of your car. . . . So now our car is into two fragments. . . . Most of the fragment is still the car. The smaller fragment is the bumper. . . . That is what the mass spectrometer is doing. It is seeing which of those big cars are there and which of the small cars are there. The fragmentation is also a ratio of how these things break apart.
Q. So some things are missing, correct? Pieces of the larger molecule are broken away, correct?A. That is correct. They then discussed the difference between codeine and its salts, including codeine phosphate and codeine sulfate:
Q. Okay. Now, we have talked about codeine. What is codeine phosphate?A. That would be a salt derivative of codeine.
* * *
Q. . . . So what we have with the codeine phosphate-we have the exact molecule, except we have four oxygens and the phosphate on the front?A. That is correct. Q. Okay. That is not codeine? A. No. It's codeine phosphate.
Q. Okay. But after it's been broken apart, the mass spectrometer may recognize . . . the remaining molecules-the remaining portion of the molecule would be recognized as codeine?
A. That is correct. . . . And the manufacturer of many substances, whether it be a controlled substance or not, for the stability purposes of a molecule-we're talking about codeine today. It could be cocaine. It could be a number of things. The manufacturers have to put a salt derivative on them for stability purposes in the manufacturer [sic].
Once this hits water, this breaks off and leaves you with this substance. If it-there's actually other forms of codeine. There's other forms of morphine. There's other forms of cocaine.When these enter a solution, it [sic] becomes the drug itself. * * *
Q. Okay. But you would agree with, like with your car analogy, that a Buick is not an Oldsmobile; is that correct?A. That is correct. Q. And a Porche [sic] is not a Honda? A. That is correct. Q. And codeine is not codeine phosphate? A. Codeine-no, it is not. Q. It is molecularly different? A. It is molecularly different. That is correct.
Q. And if somebody were to say that an individual had codeine and they [sic] had codeine phosphate, it would not-they [sic] would not-I wouldn't say lie to you, but it would not be true what they [sic] said; is that correct?
A. They would have to have it in a dry form to be able to differentiate between the two.
Q. Are you telling us that you cannot differentiate between codeine and codeine sulfate or codeine phosphate; is that correct?A. No, I can. . . . Q. If it is in solution?
A. If it is in solution. . . . Analytically, this is what happens in my laboratory. We are taking an unknown sample that has already been identified as codeine. As any drug, we take a second sample of this drug and we treat it chemically with, in this case, sodium hydroxide and water, converts the codeine phosphate, sulfate, cocaine, hydrochloride, into codeine base.
Q. So what it does is it strips that extra piece of —A. Gone.
Q. Gone. Okay. . . . And this occurs in the lab. It doesn't occur —
A. It occurs in the laboratory. . . . Therefore, what we are reporting in our report, 44 milligrams, . 044 grams is codeine base.Q. Okay. And what may come — A. Stripped.
Q. And what may have come into your lab is a codeine phosphate or codeine sulfate. But you guys are going to turn it into-you guys are kind of a manufacturer yourselves, aren't you, making codeine from the sulfate or phospate [sic]?A. I'd call it a reducer. * * *
Q. Okay. Just to summarize your testimony, sir, what you are telling this jury today is that you cannot tell us whether the chemical that entered the laboratory was codeine, codeine sulphate or codeine phosphate, correct?A. That is correct because — Defense counsel then interrupted Lambing's answer and passed the witness. The prosecutor asked Lambing to finish his answer:
A. That is correct. We identified codeine, not as a salt, but as the base.
Q. And that's because it was the codeine that was in the syrup, correct?A. Codeine was identified in the syrup. * * *
Q. And with regard to the codeine, your analysis indicated that it was codeine; is that correct?A. That is correct. (Emphasis added.) From this testimony, appellant argues the evidence is legally and factually insufficient to prove appellant possessed "codeine" and not "codeine phosphate" or "codeine sulfate." The above testimony is complex and appears contradictory with Lambing testifying that the laboratory both could and could not differentiate between codeine and its phosphate and sulfate salts. The prosecutor's redirect examination did little to resolve the conflict. However, there are two ways in which the jury could rationally have interpreted Lambing's testimony to conclude the purple liquid contained codeine as opposed to or in addition to codeine phosphate or sulfate. The first way utilizes the italicized portion of the testimony set out above. The jury could rationally have interpreted that testimony in the following manner: The manufacturers use a salt form of codeine, such as codeine phosphate, because it is more stable than pure codeine. When the codeine phosphate is put into solution, which the jury could conclude included the purple liquid, the promethazine, then the phosphate breaks off and the codeine phosphate "becomes the drug itself," that is, codeine. The second way utilizes the boldface portions of the testimony. The jury could interpret Lambing's testimony about the conversion of the salts into the base as occurring during the process of determining the quantity of the codeine in the solution, which Lambing testified occurred after the determination that a controlled substance, codeine, was present in the solution. The process of determining the identity of the substance broke it into pieces but did not eliminate any of the pieces. To continue Lambing's automobile analogy, both the cars (the molecule of codeine) and their knocked-off bumpers (the phosphate or sulfate) were present for observation by the chemist. This interpretation is consistent with Lambing's testimony that the laboratory could distinguish between codeine, codeine phosphate, and codeine sulfate in solution. Either of these rational interpretations of Lambing's testimony would allow the jury to infer that the purple liquid contained codeine and not just codeine phosphate or sulfate. Accordingly, we conclude the evidence is both legally and factually sufficient to show "codeine" was present in the purple liquid. We overrule the second and fifth points of error. In his fourth and seventh points of error, appellant contends the evidence is legally and factually insufficient to show appellant knew he possessed codeine because of the insufficiency of the evidence to show the liquid contained codeine. These points of error are dependent upon the arguments in appellant's second and fifth points of error. Because we concluded those arguments lack merit, we also conclude appellant's arguments under these points of error lack merit. We overrule appellant's fourth and seventh points of error.
Quantity of the Codeine Solution
In his third and sixth points of error, appellant contends the evidence is legally and factually insufficient to show he possessed 28 grams or more of codeine including adulterants or dilutants because of the possibility that only one of the jars contained codeine. We addressed this issue under appellant's first point of error where we concluded there was no evidence to show that if appellant possessed any codeine, that he possessed less than 28 grams of codeine including adulterants or dilutants. Our analysis under that point demonstrates the legal and factual sufficiency of the evidence to show appellant possessed at least 28 grams of codeine including adulterants or dilutants even if only one of the jars contained any codeine. We overrule appellant's third and sixth points of error.Possession
In his eighth and ninth points of error, appellant contends the evidence is legally and factually insufficient to establish he possessed the crack cocaine and the purple liquid containing codeine. To prove unlawful possession of a controlled substance, the State must prove: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). "Whether this evidence is direct or circumstantial, `it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. This is the whole of the so-called" affirmative links" rule.'" Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995))." The `affirmative links rule' is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs." Id. at 406. The court of criminal appeals has formulated the following rule: "When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. [Panel Op.] 1981), quoted in Poindexter, 153 S.W.3d at 406. Affirmative links include whether:the contraband was in plain view; the accused was the owner of the location in which the contraband was found; the accused was in close proximity and had ready access to the contraband; contraband was found on the accused; the defendant attempted to flee; and conduct by the accused indicated a consciousness of guilt, including extreme nervousness or furtive gestures.Bates v. State, 155 S.W.3d 212, 216 (Tex.App.-Dallas 2004, no pet.). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. Id. at 217. A circumstantial case is legally sufficient when some of these factors appear in concert. Although the defendant must be affirmatively linked with the drugs he allegedly possessed, this link need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). In this case, the fact that someone other than appellant had leased the apartment showed appellant was not in exclusive control of the premises. Accordingly, we must determine whether the evidence affirmatively links appellant to the controlled substances sufficiently to establish his connection to them was more than fortuitous. Appellant admits on appeal that he was alone in the apartment when the police entered, that the drugs were in plain view, and that appellant was near the drugs. Additionally, when appellant realized he was being watched by a police officer standing outside the window, appellant made a furtive gesture with the marijuana and tried to flee the apartment. When arrested, appellant lied about his identity. The jury could also conclude appellant was selling drugs, like those placed in front of the window, to the people who approached the window while Starr was watching. We conclude all this evidence affirmatively links appellant to the codeine and cocaine and that his connection to the drugs was more than just fortuitous. Appellant argues the evidence is legally and factually insufficient to show he possessed the drugs because the apartment was leased to Ralph Hernandez, not appellant. Appellant also argues that Hernandez must have been the person who went upstairs after collecting the money from appellant and that Hernandez must be the owner and possessor of the drugs. We disagree. At, most this evidence shows joint possession of the drugs between appellant and the man who collected the money. Furthermore, the evidence does not have to exclude every other reasonable hypothesis other than appellant's guilt. Brown, 911 S.W.2d at 748. We conclude the evidence is legally and factually sufficient to show appellant possessed the codeine and cocaine. We overrule appellant's eighth and ninth points of error. We affirm the trial court's judgment.