Opinion
NO. 01-17-00213-CR
03-27-2018
GEORGE FORD, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court Waller County, Texas
Trial Court Case No. 16-06-15666
MEMORANDUM OPINION
A jury found appellant, George Ford, Jr., guilty of the offense of possession of a controlled substance, namely, phencyclidine ("PCP"), weighing more than one gram but less than four grams. After finding true the allegations in two enhancement paragraphs that appellant had twice been previously convicted of felony offenses, the jury assessed his punishment at confinement for thirty-five years. In three issues, appellant contends that the evidence is legally insufficient to support his conviction, his trial counsel provided him with ineffective assistance, and the trial court erred in admitting certain evidence.
See TEX. HEALTH & SAFETY CODE ANN. § 481.102(8) (Vernon Supp. 2017), § 481.115(a), (c) (Vernon 2017).
We affirm.
Background
Hempstead Police Department ("HPD") Chief D. Hartley testified that on December 22, 2015, at 8:30 a.m., he responded to a call about a reckless driver in Waller County, Texas. He located the driver, who was driving "against traffic" on a highway exit ramp. Because Hartley was concerned that the driver's car would "hit somebody head-on," he activated his patrol car's emergency lights and initiated a traffic stop. Hartley noted that he was forced to "drive [his patrol car] the wrong way on the road[way] in order to stop" the car.
After the car stopped, Chief Hartley made contact with the driver, who he identified at trial as appellant. Hartley then directed HPD Corporal S. Angulo, who had arrived at the scene, to place appellant in handcuffs because he "appeared to be high." Hartley noted that appellant was disoriented, "had a stare about him that was not normal," and believed that he was in Texas City, which Hartley explained was "a long way" away.
Corporal Angulo testified that on December 22, 2015 at 8:30 a.m., he was dispatched to locate a reckless driver in Waller County, Texas. When he arrived at the scene, the reckless driver's car had already been stopped, and it was "parked facing east to west blocking the road on the [highway's] feeder ramp." Angulo approached the driver, who he identified at trial as appellant, and placed him in handcuffs in order to perform "a pat-down for any kind of weapons" in appellant's possession. As Angulo "performed the pat-down," he noticed "a hard solid object," which he believed could be a weapon, "in [appellant's] crotch area." When he asked appellant to identify the "hard solid object," appellant denied having "anything in his pants." As Angulo attempted to remove the object from the crotch area of appellant's pants, "a small brown clearish bottle," admitted into evidence as State's Exhibits 2 and 2-A, "fell down his right pant leg" and "out of his pants." Angulo noted at the time that appellant "seemed catatonic" and his demeanor was "[b]izarre," "[c]onfused," and "consistent with somebody who may [have] be[en] high" on PCP.
In regard to State's Exhibits 2 and 2-A, Corporal Angulo explained that the "small brown clearish bottle" is the object that he found "in [the] crotch area" of appellant's pants, it tested positive for PCP at the HPD station, and the bottle and its contents weighed 23.66 grams. Further, on December 26, 2015, he placed State's Exhibits 2 and 2-A in "evidence locker No. 4" at the HPD station so that they could be transported to Texas Department of Public Safety ("DPS") crime lab in Houston for additional testing. Subsequently, on February 22, 2017, he gave State's Exhibits 2 and 2-A to HPD Sergeant R. Martin so that they could be retested by the DPS crime lab in Houston. On the day of trial, Angulo retrieved State's Exhibits 2 and 2-A from "[e]vidence [l]ocker [No.] 4" at the HPD station and brought them to the courtroom.
Sergeant Martin testified that in January 2016, he removed State's Exhibits 2 and 2-A from the evidence locker at the HPD station, completed "a lab submission form for the DPS [c]rime [l]ab" and a "chain of custody [form] to show that [he] had possession of the exhibits, and transported them to the DPS crime lab in Houston. At that point, the DPS crime lab in Houston "t[ook] possession" of State's Exhibits 2 and 2-A, and Martin "completed another chain of custody [form]" to show that the DPS crime lab in Houston had custody of them. After testing was completed, another law enforcement officer returned State's Exhibits 2 and 2-A to the HPD station.
Sergeant Martin further explained that he transported State's Exhibits 2 and 2-A to the DPS crime lab in Houston a second time after a retest had been requested "so [that] a local [Houston crime lab] representative could be" present for trial. On that occasion, he again followed the appropriate procedures, and after testing was completed, the DPS crime lab in Houston notified him that State's Exhibits 2 and 2-A were "ready to be picked up." Martin then went and retrieved State's Exhibits 2 and 2-A from the crime lab in Houston, "complete[d] another chain of custody [form] showing [that he] again ha[d] custody" of the exhibits, and transported them to the HPD station, where he "re-locked [them] back in[] [the] evidence locker." Martin noted that State's Exhibits 2 and 2-A did not show any signs of leakage anytime that they were in his possession, and he was not aware of any tampering with State's Exhibits 2 and 2-A.
Caroline Allen, a forensic scientist with the DPS crime lab in Tyler, testified that State's Exhibits 2 and 2-A were originally received by DPS crime lab in Houston for testing. However, they were, pursuant to an agreement between the two crime labs, forwarded to the DPS crime lab in Tyler for testing. Allen noted that after State's Exhibits 2 and 2-A arrived at the crime lab in Tyler on April 5, 2016, she performed a controlled substance analysis on them. State's Exhibits 2 and 2-A consisted of a "heat sealed bag . . . with a plastic bottle containing yellow liquid," the "yellow liquid" weighed 10.17 grams, and it contained PCP. The trial court admitted Allen's Controlled Substance Analysis Laboratory Report, dated May 12, 2016, into evidence as State's Exhibit 4.
Allen further testified that State's Exhibits 2 and 2-A had not been tampered with, but they were later retested at the request of the crime lab in Tyler so that she would not have to come to Houston to testify at trial. She explained that, at the time of the retest, the weight of the "yellow liquid" had changed, which could have occurred because PCP "is usually very volatile, so it evaporates very, very easily" and "over time" "some of the sample could have evaporated off." Moreover, the PCP could have "eat[en] away" at the seal on the plastic bottle containing the "yellow liquid," causing the liquid to "leak out." And Allen noted that there was no evidence of leakage while State's Exhibits 2 and 2-A were in the Tyler crime lab's possession.
Minh Nguyen, a chemist with the DPS crime lab in Houston, testified that he performed a controlled substance analysis on State's Exhibits 2 and 2-A, "[a] [h]eat sealed bag . . . with a plastic bottle containing yellow liquid." Nguyen explained that he performed his analysis as a "retest[]" so that he could testify at trial, rather than having someone travel from the crime lab in Tyler to court to testify. When Nguyen first opened State's Exhibits 2 and 2-A for the retest, he saw that "some [yellow] liquid [had] spill[ed] inside the . . . bag containing the [plastic] bottle." The remaining "yellow liquid" from the plastic bottle weighed 3.03 grams and contained PCP. Nguyen opined that the difference in weight of the "yellow liquid" from the first test at the crime lab in Tyler to his retest was "due to leakage of the [yellow] liquid out of the bottle" and evaporation. He explained that it was possible that the seal on the plastic bottle had deteriorated over time due to the volatility of the PCP and "that could have caused the leakage." The trial court admitted Nguyen's Controlled Substance Analysis Laboratory Report, dated March 1, 2017, into evidence as State's Exhibit 5.
Sufficiency of Evidence
In his second issue, appellant argues that the evidence is legally insufficient to support his conviction because "no reasonable juror could [have] f[ound] the narcotics [evidence to be] credible" and "due to the change in weight of the PCP, . . . said PCP was not credible incriminating evidence against [him] sufficient to return a verdict of guilty beyond a reasonable doubt."
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to 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, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of the witnesses, could choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). Our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Williams, 235 S.W.3d at 750.
A person commits the offense of possession of a controlled substance if he "knowingly or intentionally possesses" a controlled substance, including PCP, weighing more than one gram but less than four grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (Vernon 2017); see also id. § 481.002(5) (Vernon 2017), § 481.102(8) (Vernon Supp. 2017).
Here, the evidence shows that Corporal Angulo found "a small brown clearish bottle" containing PCP "in [the] crotch area" of appellant's pants. When Angulo attempted to remove the bottle from the crotch of appellant's pants, it "fell down his right pant leg" and "out of his pants."
Allen, a forensic scientist with the DPS crime lab in Tyler, testified that the plastic bottle found in the crotch of appellant's pants contained a "yellow liquid" that weighed 10.17 grams and contained PCP. And Nguyen, a chemist with the DPS crime lab in Houston, testified that the plastic bottle found in the crotch of appellant's pants contained a "yellow liquid" that weighed 3.03 grams and contained PCP. See Mayes v. State, 831 S.W.2d 5, 6 (Tex. App.—Houston [1st Dist.] 1992, no pet.) ("[I]f the controlled substance can be seen and measured, the amount is sufficient to establish that the appellant knew it was a controlled substance."); see also Jenkins, 870 S.W.2d at 628-29; Sims v. State, 833 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) (evidence of knowing possession sufficient where cocaine residue observed with naked eye); Jarrett v. State, 818 S.W.2d 847, 848-49 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (law enforcement officer observed residue inside crack pipe).
Appellant argues that because of "the change in weight of the PCP," between the time that Allen weighed the "yellow liquid" during the initial testing in 2016 and Nguyen weighed the "yellow liquid" during the retest in 2017, the "PCP was not credible incriminating evidence against [him] sufficient to return a verdict of guilty beyond a reasonable doubt."
It is undisputed that the weight of the PCP varied between the first test conducted by Allen and the retest conducted by Nguyen. Allen did testify that the "yellow liquid" containing PCP weighed 10.17 grams when she tested it in 2016. And Nguyen did testify that the "yellow liquid" containing PCP weighed 3.03 grams when he retested it in 2017. However, Nguyen opined that the difference in the weight from the first test to his retest was "due to leakage of the [yellow] liquid out of the bottle" and evaporation. And he explained that it was possible that the seal on the plastic bottle containing the "yellow liquid" had deteriorated over time due to the volatility of the PCP and "that could have caused the leakage."
Notably, appellant was convicted of the offense of possession of a controlled substance, namely, PCP, weighing more than one gram but less than four grams. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (c). And although the record contains evidence that appellant possessed PCP weighing more than four grams, we defer to the jury to resolve any conflicts in the testimony, to weigh the evidence, and to judge the facts and credibility of the witnesses. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789; Sharp, 707 S.W.2d at 614; Jenkins, 870 S.W.2d at 628; see also Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (when evidence both supports and conflicts with verdict, we must assume fact finder resolved conflict in favor of verdict). Based on the above evidence, the jury could have reasonably concluded that appellant knowingly or intentionally possessed PCP weighing more than one gram but less than four grams. See Uranga v. State, 247 S.W.3d 375, 381 (Tex. App.—Texarkana 2008), aff'd, 330 S.W.3d 301 (Tex. Crim. App. 2010) (evidence sufficient where chemist's analysis revealed methamphetamine weighing within applicable statutory range); King v. State, 856 S.W.2d 610, 613-14 (Tex. App.—Waco 1993, no pet.) (evidence sufficient to find defendant possessed more than four ounces of marijuana where State's expert testified weight 4.15 ounces one month after offense and defendant's expert testified weight 3.93 ounces a year later; State's expert opined weight loss due to water loss and .13 ounces used in conducting later analysis and discarded); see, e.g., Jones v. State, No. 01-14-00385-CR, 2015 WL 4591745, at *3-4 (Tex. App.—Houston [1st Dist.] July 30, 2015, no pet.) (mem. op., not designated for publication) (evidence sufficient to support finding defendant possessed, with intent to deliver, PCP with aggregate weight of 200 grams or more, but less than 400 grams, despite "ninety percent reduction in volume of the liquid" at trial, where chemist testified PCP weighed 201.57 grams in 2013 and weight of PCP different at trial because of evaporation).
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably found that appellant intentionally or knowingly possessed PCP, weighing more than one gram but less than four grams. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Williams, 235 S.W.3d at 750. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for the offense of possession of a controlled substance.
We overrule appellant's second issue.
Ineffective Assistance
In his first issue, appellant argues that his trial counsel did not provide him with effective assistance during the guilt phase of trial because counsel "waived the notice require[d] [for] an additional witness who was a material actor in the chain of custody," "failed to object to the [S]tate's reliance on an unpublished opinion to establish the legal basis for the admissibility vs. weight issue in the chain of custody relating to the narcotics," and "failed to request [that] the [trial] [c]ourt . . . take judicial notice or otherwise enter into the record, direct evidence of tampering or alteration of the narcotic[s] throughout the chain of custody."
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Here, we need not address whether appellant's trial counsel's performance fell below an objective standard of reasonableness when he "waived the notice require[d] [for] an additional witness who was a material actor in the chain of custody," "failed to object to the [S]tate's reliance on an unpublished opinion," and "failed to request [that] the [trial] [c]ourt . . . take judicial notice or otherwise enter into the record, direct evidence of tampering or alteration of the narcotic[s] throughout the chain of custody." Even were we to conclude that trial counsel's performance was deficient, appellant, in his brief, does not argue that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Lopez, 343 S.W.3d at 142.
In order to assert an issue on appeal, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities." TEX. R. APP. P. 38.1(i). And an appellant waives an issue on appeal if he does not adequately brief that issue, i.e., by presenting supporting arguments, substantive analysis, and citation to authorities. See id.; Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Although appellant asserts that his trial counsel was ineffective, his brief contains no argument, substantive analysis, or citation to authorities to show that the result of the proceeding would have been different but for his trial counsel's purported errors. See Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Lopez, 343 S.W.3d at 142. Accordingly, we hold that appellant has waived his first issue on appeal. See Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006) (ineffective-assistance-of-counsel complaint waived where defendant made no effort to show how record demonstrated prejudice), aff'd, 239 S.W.3d 809 (Tex. Crim. App. 2007); see, e.g., Young v. State, No. 01-04-00155-CR, 2005 WL 3494949, at *11 (Tex. App.—Houston [1st Dist.] Dec. 22, 2005, no pet.) (mem. op., not designated for publication) (defendant waived ineffective-assistance-of-counsel claim by not citing any authority for argument "that but for counsel's deficient conduct, the result of the proceeding would have been different").
Admission of Evidence
In his third issue, appellant argues that the trial court erred in admitting into evidence State's Exhibits 2 and 2-A, the plastic bottle containing a "yellow liquid" found by Corporal Angulo in the crotch of appellant's pants, because "the narcotics as produced at trial had been altered or tampered with" by Nguyen, a chemist with the DPS crime lab in Houston.
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Here, we need not determine whether the trial court erred in admitting State's Exhibits 2 and 2-A, because even were we to conclude that the exhibits were improperly admitted, appellant, in his brief, does not argue that he was harmed by the admission of the exhibits. See TEX. R. APP. P. 44.2(b); Neal v. State, 256 S.W.3d 264, 284-85 (Tex. Crim. App. 2008); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (erroneous admission of evidence nonconstitutional error and subject to harm analysis under rule 44.2(b)); see, e.g., Marquez v. State, No. 05-07-00635-CR, 2008 WL 2043044, at *6 (Tex. App.—Dallas May 14, 2008, no pet.) (mem. op., not designated for publication) (even if evidence improperly admitted, defendant required to establish harm).
As previously explained, in order to assert an issue on appeal, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities." TEX. R. APP. P. 38.1(i). And an appellant waives an issue on appeal if he does not adequately brief that issue, i.e., by presenting supporting arguments, substantive analysis, and citation to authorities. See id.; Russeau, 171 S.W.3d at 881; Cardenas, 30 S.W.3d at 393; Wilson, 473 S.W.3d at 901. Although appellant argues that State's Exhibits 2 and 2-A were "inadmissible as evidence at trial," his brief contains no argument, substantive analysis, or citation to authorities to show that he was harmed by the trial court's purported erroneous admission of the exhibits. Accordingly, we hold that appellant has waived his third issue on appeal. See Wilson, 473 S.W.3d at 900-01 (defendant waived complaint trial court erred in admitting certain evidence where he failed to "identify[] the harm that he suffered as a result of the admission of the complained-of evidence"); see, e.g., Williams v. State, No. 14-04-00371-CR, 2006 WL 1330983, at *7 (Tex. App.—Houston [14th Dist.] May 11, 2006, no pet.) (mem. op., not designated for publication) (defendant waived complaint trial court improperly admitted confession/suicide note where he "offer[red] no argument as to . . . how he was harmed by the admission of the note").
Conclusion
We affirm the judgment of the trial court. We dismiss all pending motions as moot.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).