No. 01-02-00176-CR.
Opinion Issued January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.4.
Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 885362.
Before Justice HEDGES, KEYES, and EVANS.
The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
EVELYN V. KEYES, Justice
Appellant, Joaquin Dwayne Johnson, was found guilty of possession of cocaine weighing more than one gram and less than four grams. The trial court found the enhancement paragraph true and assessed punishment at six years' confinement. We affirm.
Facts
On August 16, 2001, Officers Epsfanio Garza and Mainash S. Patel of the Houston Police Department (HPD), responded to a possible shooting at the Hou-Tex Motel, room number 114. Appellant and Latasha Dismuke were occupying room 114. The door to the room was slightly open. Garza knocked on the door, which swung open. Garza found appellant sitting in a chair near a table just to the right of the door. Dismuke was standing near the door. Seventeen "rocks" of crack cocaine on a piece of paper and a crack pipe were on the table, in plain view. The cocaine and the pipe were within arm's reach of appellant. Garza retrieved and field-tested the rocks. Patel took appellant into custody. Garza turned the cocaine and pipe over to Officer Jesse Aguire, who tagged it. Dennis Green, Criminalist II with the HPD Crime Laboratory, tested the evidence. Green determined that the substance was 73.2% cocaine and weighed 2.3 grams. Green put the substance back into the evidence bag after analyzing it, made sure his initials and lab number were on the evidence, and sealed the bag with evidence tape. Green returned the evidence bag to the vault where it was stored. The evidence bag was retrieved from the vault the day of trial. Patel testified the cocaine and crack pipe were the same he saw in room 114 on the date of the offense. Sufficiency of the Evidence In two points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction for possession of cocaine. Legal Sufficiency
In his first point of error, appellant argues that the evidence was insufficient to support his conviction, as a matter of law, for possession of cocaine, because the State failed to establish his guilt beyond a reasonable doubt. Appellant specifically argues that there was insufficient evidence that the offense occurred on August 16, 2001; there was insufficient evidence to connect him to the cocaine because there was no proof of a proper chain of custody; and there was insufficient evidence that he possessed the cocaine. In reviewing legal sufficiency, we view the evidence in a light most favorable to the verdict and ask whether a rational trier-of-fact could find the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). The fact finder may reasonably infer facts from the evidence before it, credit the witnesses if it cares to, disbelieve any or all of the testimony proffered, and weigh the evidence in the manner it chooses. Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). 1. Date of the Offense Appellant argues that no evidence at trial showed that the offense occurred on or about August 16, 2001. During direct examination the prosecutor asked Garza whether he was working on "August 16th of this year," and directed Patel to "August 16th of this year." Appellant, therefore, argues that the evidence presented at trial only showed that the offense occurred on August 16, 2002, a date which had not occurred at the time of trial. We first must determine if the date of the offense is a substantive element of the criminal offense defined by state law. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). The elements of the offense of possession of a controlled substance, namely cocaine, are that a person knowingly or intentionally possesses the cocaine. See Tex. Health Safety Code Ann. § 481.115(a) (Vernon Supp. 2003); Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2003). The date of the offense is not, therefore, a substantive element of the offense of possession of a controlled substance. The trial court found that "[s]ince [they were] just 14 days into the new year and August [had] not occurred . . ., then . . . it's reasonable to believe [the offense] was [in] 2001." The trial court further recognized that the "on or about" language in the indictment was still present. In Nelson v. State, 509 S.W.2d 367, 368-69 (Tex.Crim.App. 1974), the Court of Criminal Appeals found that the use of 1972 instead of 1971 by the prosecutor during questioning was merely a `slip of the lip.' The court mentioned other instances during trial where the correct year, 1971, was referred to, but it appeared to rely on the common sense fact that because the trial occurred on October 2, 1972, the criminal offense could not have occurred on December 22, 1972. Id. In Jones v. State, 511 S.W.2d 514, 515-16 (Tex.Crim.App. 1974), the Court of Criminal Appeals looked to the entire record to establish the date of the offense, likewise holding that the use of the wrong date was merely a `slip of the lip.' We find that the prosecutor's use of "August 16th of this year," was also merely a slip of the lip, and the trial court properly inferred that the date of the offense was August 16, 2001, because August 2002 had not occurred at the time of trial. 2. Chain of Custody Appellant argues that the State did not prove proper chain of custody. The chain of custody is conclusively proven if an officer is able to establish 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 v. State, 788 S.W.2d 1, 10 (Tex.Crim. App. 1989). When the beginning and end of the chain of custody are established, and no evidence shows tampering, any gaps in the chain go to the weight rather than to the admissibility of the evidence. Lee v. State, 874 S.W.2d 220, 222-23 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The trial court's ruling on the admission of evidence will not be overturned absent a clear abuse of discretion. Ennis v. State, 71 S.W.3d 804, 808 (Tex.App.-Texarkana 2002, no pet.). The sufficiency of the predicate to admit evidence is discretionary with the trial court. Lee, 874 S.W.2d at 222. Garza and Patel responded to the police call at the motel room occupied by appellant. Garza testified that he seized the 17 rocks of crack cocaine and the crack pipe. He then turned the evidence over to Aguirre, who tagged it. Patel testified that he brought the evidence envelope containing the rocks of crack and the crack pipe to the court on the day of trial. Patel testified that the crack pipe and rocks of crack that had been introduced into evidence earlier were the same pipe and rocks that he saw on the night of the offense. Green identified the evidence envelope as the one into which central evidence placed the rocks of crack and the crack pipe in his presence after he had completed his analysis of the evidence. Appellant admits that there was no evidence of tampering in the record. We find that the trial court did not abuse its discretion when admitting this evidence. We conclude that there was sufficient evidence to connect appellant to the cocaine. 3. Possession Appellant argues that there was insufficient evidence to prove that he possessed the cocaine beyond a reasonable doubt. To show unlawful possession of a controlled substance, the State must show that (1) appellant exercised actual care, custody, control, or management of the contraband and (2) he knew it was contraband. Gilbert v. State, 874 S.W.2d 290, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); see also Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2003). When an accused is not in exclusive control of the place where the substance is found, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd). The affirmative link customarily emerges from an orchestration of several of a list of factors and the logical force they have in combination. Id. The Court of Criminal Appeals has identified factors tending to establish the essential elements of the offense, including, but not limited to, whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the place where the contraband was found was enclosed; (5) paraphernalia to use the contraband was in view of or found on the accused; (6) conduct by the accused indicated a consciousness of guilt; (7) the accused had a special connection to the contraband; (8) the physical condition of the accused indicated recent consumption of the contraband found; (9) traces of the contraband were found on the accused; and (10) affirmative statements connect the accused to the contraband. Id. Certain of these factors may bear on the care, custody, control, or management element of the offense, others may bear on knowledge, and some may be relevant to both. Id. The number of factors present is of less import than the logical force the factors have, alone or in combination, in establishing the elements of the offense. Id. The cocaine was in plain view of appellant and the arresting officers. It was found in a closed room where the only occupants were appellant and Dismuke. Garza testified that appellant was within arm's reach of the cocaine, which was on a table in the motel room. Patel testified that the cocaine was in the care of appellant and that appellant could touch the cocaine. The rocks and the pipe were field tested by Garza at the Hou-Tex Motel, the field test result was positive for cocaine. The evidence was further analyzed by Green and determined to be cocaine. Therefore, the trial court, as trier-of-fact, could have inferred that appellant was conscious of his connection with the cocaine and knew it to be cocaine. See Bruno, 922 S.W.2d at 293. Viewing the evidence in a light most favorable to the verdict and determining that a rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt, we conclude that appellant knowingly possessed cocaine. We overrule appellant's first point of error. Factual Sufficiency
In his second point of error, appellant argues that the evidence was insufficient to support appellant's conviction for possession of cocaine as a matter of fact.In reviewing factual sufficiency, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King, 29 S.W.3d at 563; Valencia, 51 S.W.3d at 423. While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier-of-fact, even when we disagree with the determination. King, 29 S.W.3d at 563. The trier-of-fact is the sole judge of the weight and credibility of the witness testimony. Jones, 23 S.W.3d at 7. At trial, Garza and Patel testified that they found 17 rocks of crack cocaine and a crack pipe on a table within arms length of the appellant in room 114 at the Hou-Tex motel. Garza testified that he field tested the cocaine and handed over the evidence to Aguirre. Green testified that he tested the cocaine and returned the evidence to the evidence envelope. Patel testified that he brought the evidence to the court the day of trial. The trial judge, as the trier-of-fact, was the sole judge of the weight and credibility of the witnesses' testimony. We conclude, therefore, that there was probative evidence to support the verdict. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.