No. 08-03-00513-CR
August 18, 2005. DO NOT PUBLISH.
Appeal from the 34th Impact District Court of El Paso County, Texas (TC# 20030D01967).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
DAVID WELLINGTON CHEW, Justice.
Appellant Alma Ramirez appeals her conviction for unlawful possession of cocaine with intent to deliver. She was found guilty by a jury and the jury assessed punishment of 6 years' confinement and a $2,500 fine. Appellant raises three issues: (1) the trial court erred in admitting evidence related to the seized narcotics because the State failed to adequately prove the chain of custody; (2) the evidence was legally and factually insufficient to sustain the conviction; and (3) the evidence was legally insufficient to prove venue in El Paso County, Texas. About 3 a.m., on September 25, 2002, El Paso County Sheriff's Deputy Raymundo Caranza stopped a maroon vehicle traveling westbound on Interstate 10 just south of the Executive Center ramp. Deputy Caranza stopped the vehicle because its taillights were not on. As he approached the vehicle, he realized that no car lights were on, and he detected a strong odor of marijuana and alcohol coming from the vehicle. He asked the driver, the Appellant, to exit the vehicle. After Appellant failed several field sobriety tests, Deputy Caranza arrested Appellant for suspicion of intoxication, handcuffed her, and placed her in the patrol car. Deputy Caranza remembered Appellant admitting she had been drinking, smoking a little bit of marijuana, and consuming cocaine. Deputy Caranza searched the center console of the vehicle and found a bag with folded papers that contained a white powdery substance, which he believed was cocaine. Deputy Caranza requested assistance from other officers, and after their arrival, he continued to search the vehicle. During the subsequent search, Deputy Caranza found more cocaine in a sandwich-sized plastic bag and bags of marijuana in the glove box. Specifically, Deputy Caranza described what he found as "many, many zip lock bags" containing white powder and one inch by one inch little squared zippy bags. The search also revealed a marijuana cigarette in the ashtray and a marijuana cigarette and Valium in Appellant's purse. Based on his experience, Deputy Caranza stated that zippy bags are used to sell or buy cocaine and a diamond fold is paper folded in a certain way and is used to hold cocaine for sale. Deputy Caranza field tested the white powder, and it tested positive for cocaine. Deputy Caranza believed the amount of cocaine found in the vehicle was excessive for personal use. Appellant told Deputy Caranza she had the narcotics and marijuana because she suffered from arthritis and was under doctor's care. Appellant had an asthma attack in the back of the patrol car before Deputy Caranza was able to perform a breath analysis. Deputy Caranza requested emergency assistance, and Appellant was transported to Las Palmas Hospital. At Las Palmas, Deputy Caranza overheard Appellant tell doctors she had been drinking, consuming cocaine, and smoking marijuana. Appellant was released from the hospital between 7 and 8 a.m. Before taking Appellant to the police station, Deputy Caranza had Appellant's vehicle impounded. Detective Michael Torres of the El Paso County Sheriff's Department was called to the police station to assist with the case because of the large amount of narcotics recovered. Deputy Caranza informed Detective Torres of the situation and showed Detective Torres the evidence he seized from Appellant's vehicle. Detective Torres testified, based on his training and experience, that he knew cocaine was usually sold in powder form, in half a gram or gram amounts, and in a diamond fold or some type of plastic bag. Detective Torres also indicated that when he had seen sixty-five grams of cocaine, it was typically for resale. Detective Torres also identified a diamond fold as a paper folded in such a way to hold cocaine. After completing the necessary paperwork at the station, Deputy Caranza turned over custody of Appellant and the evidence to a first shift deputy. Detective Hector Lara is the evidence custodian for the El Paso Sheriff's Department and is responsible for checking evidence lockers and night depository lockers. When Detective Lara removed the evidence from the night deposit locker, the evidence was packaged in a smaller plastic bag and contained an evidence report naming Appellant as the suspect. Detective Lara taped the top and bottom of the plastic bag and signed his initials to ensure no tampering of evidence occurred. He placed the evidence in an envelope as DPS prefers, and then placed the envelope in the evidence locker. The day before trial, Detective Lara took the envelope to the DPS lab to have the evidence tested. Detective Lara testified at trial that the chain of evidence reports had not been altered since he had last seen them and were exact copies of the originals. Ann Marie Falknor, a controlled substance analyst with the Texas Department of Public Safety, analyzed the evidence. When the evidence arrived at the DPS lab, it was packaged in smaller blue ziploc bags, placed inside one large plastic bag, and the plastic bag was in the envelope. Ms. Falknor separated the evidence into three separate bags and placed the cause number, exhibit number, and her initials on all three bags. Falknor identified the envelope as the one that she received the day before trial, containing the evidence. Ms. Falknor tested the evidence and determined it was cocaine and weighed a total of 66.43 grams. Ms. Falknor identified a copy of the laboratory report with her findings. Appellant testified that she had never seen nor did she know of the cocaine that was found in her vehicle. On the night in question, Appellant recalled that she had dinner with her boyfriend, and after dinner had an argument with him. Her boyfriend told her marijuana would be good for her arthritis, but she was not aware that he had put the marijuana cigarette in her purse. Appellant was upset by the argument, so she drove around. She surmised that at some point during dinner her boyfriend went out to her car and placed all the evidence in her vehicle. Appellant kept her insurance in her glove box and perfume in the middle console, but said she did not know the drugs were in either place. Appellant said she had never used cocaine or smoked marijuana, but she did admit to taking Valium to help with her menopause. Appellant testified that Deputy Caranza was lying when he said: (1) she was at the Briar Patch on the night in question; (2) she admitted she had "done" cocaine and smoked marijuana on the night she was arrested; (3) she said she was taking marijuana to help with her arthritis; and (4) he asked for her driver's license and insurance. Appellant conceded there was a marijuana cigarette in her ashtray, but she said her boyfriend had smoked the marijuana, not her.
Venue
In Issue Three, Appellant contends the evidence was legally insufficient to prove venue in El Paso, County, Texas. Specifically, she contends the State did not provide evidence to prove the alleged offense took place in El Paso County. Venue is presumed to have been proven at trial unless venue is made an issue at trial or the record affirmatively shows otherwise. TEX.R.APP.P. 44.2(c)(1); Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.-El Paso 1999, pet. ref'd); Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.-El Paso 1997, no pet.). A defendant's plea of not guilty does not automatically put venue at issue. See Holdridge v. State, 707 S.W.2d 18, 20-1 (Tex.Crim.App. 1986); Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App. 1983). Venue is not a "criminative fact" and thus not an element of the offense, so it need only be proven by a preponderance of the evidence. Lozano, 958 S.W.2d at 929; Valdez, 993 S.W.2d at 349. Proof of venue may be established through direct or circumstantial evidence. Black, 645 S.W.2d at 790; Lozano, 958 S.W.2d at 929; Valdez, 993 S.W.2d at 349. As a general rule courts will take judicial notice of the location of a particular town or city and that town or city is the county seat of such county. Black, 645 S.W.2d at 791. Appellant did not challenge venue in the trial court. Therefore, the issue is presumed proven at trial unless the records affirmatively shows otherwise. In this case, the evidence report admitted into evidence identified the location of the stop at Interstate 10 in El Paso, Texas. Courts can take judicial notice that El Paso, Texas is the county seat of El Paso County, and this is sufficient to establish venue in El Paso County. Contrary to Appellant's contentions, there is no evidence in the record to affirmatively rebut that the offense took place in El Paso County. Therefore, Issue Three is overruled. Chain of Custody
In Issue One, Appellant contends the trial court erred by admitting evidence relating to the seized narcotics because the State failed to prove a chain of custody. Specifically, she argues the State failed to prove the cocaine allegedly seized was the same as that analyzed in the DPS lab. Standard of Review
Before physical evidence is admitted, it must be identified by "evidence sufficient to support a finding that the matter in question is what its proponent claims." TEX.R.EVID. 901(a). Rule 901 does not require the State to prove anything, but only requires a showing that satisfies the trial court that the matter in question is what the State claims. Silva v. State, 989 S.W.2d 64, 67-8 (Tex.App.-San Antonio 1998, pet. ref'd); Garner v. State, 939 S.W.2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref'd). Absent abuse of discretion, the trial court's decision to admit evidence should not be overturned. Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App. 1999); Smith v. State, 683 S.W.2d 393, 405 (Tex.Crim.App. 1984); Anderson v. State, 621 S.W.2d 805, 809-10 (Tex.Crim.App. 1981). Evidence should be admitted if the trial court found that a reasonable juror could find that the evidence was authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App. 1996); Pena v. State, 864 S.W.2d 147, 152 (Tex.App.-Waco 1993, no pet.) (Op. on reh'g); Coleman v. State, 833 S.W.2d 286, 289 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Proof of the beginning and end of the chain of custody will support admission barring any evidence of tampering or alteration. Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989) cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Hall v. State, 13 S.W.3d 115, 120 (Tex.App.-Fort Worth 2000, pet. ref'd, as improvidently granted). The chain of custody is conclusively proven if an officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Stoker, 788 S.W.2d at 10. Without affirmative evidence of tampering or commingling, minor theoretical breaches in the chain of custody will not affect admissibility. Stone v. State, 794 S.W.2d 868, 870 (Tex.App.-El Paso 1990, no pet.); DeLeon v. State, 505 S.W.2d 288, 289 (Tex.Crim.App. 1974); Moore v. State, 821 S.W.2d 429, 431 (Tex.App.-Waco 1991, no pet.). Gaps in the chain of custody generally go to weight of the evidence in question, not its admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997). If the Appellant shows the possibility of tampering, but does not show conclusive tampering, such information goes to the weight of the evidence, not its admissibility. Darrow v. State, 504 S.W.2d 416, 417 (Tex.Crim.App. 1974). Moreover, conflicting testimony as to the type of container evidence is placed in does not amount to a break in the chain. Stoker, 788 S.W.2d at 10. Evidence
The record shows that Deputy Caranza stopped Appellant because her vehicle lights were not on. Deputy Caranza arrested Appellant for suspicion of intoxication, after she failed several field sobriety tests, and placed her in the back of his patrol unit. He then searched her vehicle. During the initial search, Deputy Caranza found a bag with folded papers, which contained a white powdery substance, in the middle console. An additional search yielded more white powder and bags of marijuana in the glove box, as well as many small ziploc bags. A field test of the white powder revealed it was cocaine. After returning to the police station and completing all the necessary paperwork, Deputy Caranza turned custody of the evidence and Appellant over to the first shift deputy. Deputy Caranza testified as to his findings at trial, and his signature appears on the evidence report. Deputy Caranza's testimony indicates he was the seizing officer and took the initial steps to ensure the proper chain of custody was developed. Based on his testimony, a reasonable juror could have determined Deputy Caranza properly followed procedure by placing the seized narcotics, identified at the scene as cocaine, into the possession of the first shift deputy. According to the chain of evidence report admitted into evidence, that officer, Deputy Louis Santibanez, evidently dropped the evidence in the night depository locker. Appellant argues that Deputy Caranza did not testify to having put identifying marks on the evidence, did not identify the deputy to whom he turned over the evidence, and did not testify as to whether that deputy placed identifying marks on the evidence and placed it in the evidence locker. We agree that Stoker provides a way for the State to prove conclusively the chain of custody. However, Stoker does not require the State to prove the chain in only one manner. While the better practice would have been for Deputy Caranza or the depositing deputy to testify as to the identifying marks he placed on the evidence, under the abuse of discretion standard that we must employ, we find that a reasonable juror could have found that the evidence was sufficiently authenticated by Deputy Caranza's testimony, particularly given the positive field test of the evidence. Appellant further claims that there was evidence of tampering because there was a change in the evidence from the time it was seized to the time it was presented to Ms. Falknor at the DPS lab for testing. However, a change in the container evidence is stored in does not constitute a break in the chain of custody. Stoker, 788 S.W.2d at 10. Appellant points to the description of the evidence at the time of seizure and the description of the evidence upon arrival at the DPS lab as proof it was tampered with or altered at some point in between. We disagree. When Deputy Caranza field tested the evidence on the night of the seizure, the evidence tested positive for cocaine. A lab test of the evidence performed by Ms. Falknor also tested positive for cocaine. The evidence did not change in composition; it was simply held in different containers. Appellant points to no affirmative proof of tampering or alteration. Barring such a showing, the beginning and end of the chain of custody were sufficiently proven. Consequently, we find no abuse of discretion by the trial court. Therefore, Issue One is overruled. Sufficiency of the Evidence
In Issue Two, Appellant contends the evidence is legally and factually insufficient to support her conviction. Specifically, Appellant contends the record is devoid of evidence that she actually intended to sell or deliver the cocaine. Appellant also claims the State's evidence alone was too weak to prove beyond a reasonable doubt that she had the requisite intent to deliver, and thus her conviction cannot stand. Further, she claims that the State produced contrary evidence to prove she was likely a user, not a seller, of cocaine, such that the beyond-a-reasonable-doubt standard as to her intent to deliver could not have been met. Standards of Review
When examining the legal sufficiency of the evidence, the court is to consider the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). If the evidence is found legally insufficient, a judgment of acquittal must be rendered. Clewis, 922 S.W.2d at 133. The court is to consider all the evidence, whether admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). Any inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The reviewing court is to view the evidence as it is already weighted by the jury and may not substitute its judgment for that of the fact finder. Adelman, 828 S.W.2d at 421-22; Jordan v. State, 139 S.W.3d 723, 725 (Tex.App.-Fort Worth 2004, no pet.). When considering whether the evidence is factually sufficient, the court is to review the evidence in a neutral light and determine if the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis, 922 S.W.2d at 129. There are two ways the evidence can be factually insufficient: (1) the evidence when considered by itself is too weak to find guilt beyond a reasonable doubt; or (2) contrary evidence is strong enough such that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. This standard acknowledges that evidence supporting guilt can "outweigh" contrary evidence but still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. at 485. Appellate courts must give proper deference to the jury's findings and find the evidence factually insufficient only to prevent a manifest injustice. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the Appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Possession of Cocaine with Intent to Deliver
A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1. TEX.HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon 2003). An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. Tex.Health Safety Code Ann. § 481.112(d). Penalty Group 1 consists of cocaine. Tex.Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2004-05). Intent is a question of fact to be determined by the trier of fact. Ingram v. State, 124 S.W.3d 672, 676 (Tex.App.-Eastland 2003, no pet.). Intent to deliver can be proven by circumstantial evidence, such as: (1) the amount of the controlled substance possessed; (2) the manner in which it was possessed; (3) the manner of packaging; (4) the presence of the accused in a drug house; (5) the nature of the location where the defendant was arrested; (6) the presence or absence of drug paraphernalia (for use or sale); (7) the amount of cash the defendant possessed in addition to the drugs; and (8) the defendant's status as a drug user. See Ingram, 124 S.W.3d at 675-76; Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Jordan v. State, 139 S.W.3d 723, 726, (Tex.App.-Fort Worth 2004, no pet.). Expert testimony may be introduced to prove intent to deliver. Jordan, 139 S.W.3d at 726. Evidence
First, Appellant challenges the legal sufficiency of her conviction. Specifically, Appellant contends that the State did not prove she intended to deliver the cocaine found in her vehicle. Appellant's intent to deliver was established by circumstantial evidence. Appellant was found with 66.43 grams of cocaine in her vehicle, as well as marijuana and Valium. In addition to the amount of cocaine found in her possession, Deputy Caranza found diamond folds and nineteen small plastic bags also filled with cocaine. Deputy Caranza indicated that in his experience diamond folds and small plastic bags filled with cocaine are the manner in which sellers of cocaine carry the drug. Detective Torres indicated cocaine sellers might have diamond folds, plastic bags, and the amount of cocaine found in Appellant's vehicle. Detective Torres also indicated the typical sale of cocaine is a half a gram to one gram, and the cocaine is typically sold in powder form — it was found in powder form in Appellant's vehicle. Detective Torres believed that the amount of cocaine seized from Appellant's vehicle was in excess of the amount one would possess for personal use. Appellant argues that the testimony of Deputy Caranza and Detective Torres was not evidence, simply two people stating their personal belief. However, the jury was free to accept or reject the officers' opinions, and we will not reevaluate the credibility of these witnesses on appeal. Likewise, the jury, as sole fact finder, could choose to disregard Appellant's testimony denying knowledge of the cocaine found in her vehicle. As further evidence that she did not have the requisite intent to deliver, Appellant points to the evidence that was not found in her vehicle, such as large amounts of cash, scales, or agents used to cut cocaine, and points to the fact that vehicles are not normally a place used by drug dealers. Courts have provided examples of circumstantial evidence that may indicate a person's intent to sell, but the trier of fact need not find every indicator in order to find a person had the intent to deliver. Appellant argues that at most, the State proved that she is a user of cocaine, however, as discussed above, there is a significant amount of circumstantial evidence in this case, including the amount of cocaine seized, the plastic bags, and the diamond folds to prove Appellant's intent to deliver. Considering all the circumstantial evidence in this case, a rational trier of fact could have found Appellant had the requisite intent to deliver and thus found Appellant guilty beyond a reasonable doubt. Appellant also contends the evidence was factually insufficient. Specifically, she argues the State's evidence when viewed alone is too weak to prove she intended to deliver the cocaine found in her vehicle. She also claims the State's evidence when coupled with her own testimony cannot prove beyond a reasonable doubt that she intended to sell the cocaine found in her vehicle. We disagree. There was ample evidence to show Appellant's intent to deliver. Deputy Caranza found 66.43 grams of cocaine in Appellant's vehicle. Deputy Caranza and Detective Torres both testified that in their experience, the amount of cocaine seized, as well as the fact that diamond folds and plastic bags were found, indicated the person who possessed such items was a seller of cocaine. Appellant argues that the evidence at most establishes that she is a drug user and not a seller. She points to the fact that Deputy Caranza did not see her deliver any cocaine. She also points to the evidence that she was intoxicated, as evidence that she was a user and not a seller. However, the circumstantial evidence presented at trial was not too weak that a jury could not have found the element of intent to deliver beyond a reasonable doubt. Next, Appellant contends contrary evidence was presented and was strong enough as such that the beyond-a-reasonable-doubt standard could not have been met. Appellant points to Detective Torres's concession that the amount of cocaine seized from Appellant could be used by one person over a number of weeks, though he considered it to be excessive for personal use. Appellant argues this is evidence she is a user and not a seller. However, Detective Torres's testimony clearly indicated his opinion that she was a seller. Appellant also points to her testimony that she had no knowledge that the cocaine was in her vehicle. However, according to Deputy Caranza, he asked her for her insurance, which was in the glove box. Apparently, the fact finder resolved the conflicting evidence in favor of the State. See Cain, 958 S.W.2d at 410. We conclude that the evidence is legally sufficient to sustain her conviction, that is, viewing the evidence in the light most favorable to the verdict, a rational jury could have found Appellant possessed cocaine with the requisite intent to deliver, and thus find Appellant guilty beyond a reasonable doubt. After considering all the evidence in the neutral light, we conclude the evidence supporting the verdict alone is not too weak to support the guilty finding beyond a reasonable doubt nor is the contrary evidence strong enough such that the beyond-a-reasonable-doubt standard could not have been met. Having found the evidence is legally and factually sufficient to sustain Appellant's conviction, we overrule Issue Two. Accordingly, we affirm the trial court's judgment.