Simminette Drake Shinette v. State

Affirmed and Memorandum Opinion filed November 17, 2009. In The Fourteenth Court of Appeals ___________________ NO. 14-08-00919-CR ___________________ Simminette Drake Shinette, Appellant V. The State of Texas, Appellee On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 07CR1053 MEMORANDUM OPINION Appellant, Simminette Drake Shinette, appeals from his conviction for possession of a controlled substance, specifically cocaine, in an amount of at least four grams but less than 200 grams. The trial court found appellant guilty and sentenced him to twenty-five years in prison. In a single issue on appeal, appellant contends that the trial court erred in denying his motion for directed verdict based upon alleged lapses in the chain of custody of certain evidence. We affirm. Background Appellant and the State essentially agree on the salient facts. Galveston police officers responded to a report of a disturbance at a residence. While determining that no disturbance was ongoing, officers discovered that appellant, who testified that he made the disturbance report, had outstanding municipal warrants for his arrest. Appellant was therefore arrested at the scene. Before placing appellant in the back of his patrol car, Officer Matt Staszesky patted appellant for weapons. Appellant testified that Staszesky removed items from his (appellant’s) pockets and thoroughly searched him before replacing the items in the pockets. Appellant further asserted that Staszesky withdrew money from appellant’s pocket to count it when they reached the jail. Also, once appellant arrived at the jail, Galveston County Sheriff’s Deputy Sharon Irizarry searched appellant and discovered what she described as a “white rock” in appellant’s front pocket. Officer Staszesky testified that after Irizarry found the rock, he (Staszesky) “took control of it.” He carried the rock to what he called the “evidence station,” where he weighed it, “field” tested it, and placed it in an envelope. During trial, Staszesky identified State’s exhibit 1 as the envelope in which he placed the rock. He further explained that he had written on the envelope his name, badge number, and the date, and he also signed the back of the envelope. After writing the identifying information on the envelope, Staszesky placed it in a property locker. Minh Nguyen, a chemist with the Department of Public Safety Crime Lab in Houston, testified that he also recognized State’s exhibit 1 because of a green label on which he wrote an identifying lab number, as well as his own initials, after he tested the contents of the envelope. He also identified the contents of exhibit 1, State’s exhibit 1A, as a white substance that tested positive as cocaine. Nguyen further testified that the substance weighed 4.57 grams. He said that after he was assigned to the case, he had retrieved the envelope from a vault and taken it to his work bench for testing. During cross-examination, defense counsel asked Nguyen whether he knew who “Irvin Isbell” was. Nguyen responded that he thought Isbell was the person who transported the evidence to the lab. Nguyen admitted, however, that he did not have personal knowledge of this. At the conclusion of the State’s case-in-chief, appellant moved for directed verdict based on the perceived gap in the chain of custody between Staszesky’s placing of Exhibits 1 and 1A in the property locker and Nguyen’s retrieval of the exhibits from the lab vault. The trial court denied the motion and ultimately convicted appellant of possession of a controlled substance. Analysis As stated, in his single issue, appellant contends that the trial court erred in denying his motion for directed verdict based upon alleged lapses in the evidentiary chain of custody. In support, appellant cites authority concerning the admissibility of evidence. As a condition precedent to admission, a trial court must be satisfied that the evidence offered is what the proponent claims it to be. See Tex. R. Evid. 901(a); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). This requirement can be met through testimony by a witness with knowledge that an item is what it is claimed to be. Tex. R. Evid. 901(b)(1); Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). In regards to incriminatory evidence in criminal trials, authentication can be met by demonstrating the beginning and the end of the chain of custody. Caddell v. State, 123 S.W.3d 722, 727 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). In such cases, the State is not required to provide a seamless moment-by-moment account of the whereabouts of the evidence. Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Instead, in the absence of proof of tampering, any gaps and minor theoretical breaches in the chain go to the weight of the evidence rather than its admissibility. Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. 1981). The initial problem for appellant, however, is that the argument he is making on appeal differs fundamentally from the argument he made in the trial court. In the trial court, appellant acknowledged that the alleged gap in the chain of custody went to the weight of the evidence not admissibility. Indeed, trial counsel made no admissibility objection based on predicate or chain of custody. On appeal, appellant argues only that the cocaine was inadmissible; appellant cites no authority and makes no argument respecting weight or sufficiency of the evidence. Because appellant’s appellate arguments do not comport with his trial arguments, he has effectively presented nothing for review. See Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009) (citing Tex. R. App. P. 33.1(a)). Nevertheless, in the interest of justice, we will consider the issue trial counsel preserved below. The contention appears to be that the gap in the chain of custody was so severe as to require assigning minimal if any weight to the admission into evidence of the retrieved substance itself as well as the chemist’s testimony that the retrieved substance was, in fact, cocaine. With such little weight assigned to those pieces of evidence, the argument goes, the evidence against appellant would have been legally insufficient to convict him, and thus, the trial court erred in denying the motion for directed verdict. An appeal from the denial of a motion for directed verdict challenges the legal sufficiency of the evidence. Turner v. State, 101 S.W.3d 750, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). When reviewing legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the credibility of witnesses. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). 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, 405-06 (Tex. Crim. App. 2005). Evidence that a person had cocaine in his pants pocket has been held sufficient to sustain a conviction for possession of a controlled substance. See, e.g., Thomas v. State, 208 S.W.3d 24, 25-27 (Tex. App.—Amarillo 2006, no pet.) (discussing similar cases). As discussed above, while searching appellant after his arrest, Deputy Irizarry discovered a “white rock” substance in appellant’s pocket. Officer Staszesky received the substance and placed it in an envelope while marking the envelope with his name, signature, and badge number along with the date. He then placed the envelope and its contents in a property locker. Staszesky testified at trial that State’s exhibit 1 was the same envelope he placed in the property locker. Chemist Nguyen testified that he retrieved exhibit 1 from a vault, tested the rock-like substance contained in the envelope, and afterwards added his own identifying information to a label on the envelope. According to Nguyen, the substance tested positive as cocaine and weighed in excess of 4 grams. Trial counsel highlighted the missing information in the chain of custody as to how the envelope moved from the police property locker to the lab vault. However, no evidence was submitted suggesting that anything inappropriate or out of the ordinary happened to the evidence during this time gap in the chain. Although the trial court could certainly have considered the missing piece of the custody chain in weighing the evidence, the bare fact that something improper could have happened to the evidence during the unaccounted-for period does not necessarily render exhibits 1 and 1A, or the associated testimony, wholly without merit. Based on the testimony of Irizarry, Staszesky, and Nguyen, the trial court could have rationally found the essential elements of the offense beyond a reasonable doubt. See Hardy, 281 S.W.3d at 421. Accordingly, we overrule appellant’s sole issue.[1] We affirm the trial court’s judgment. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan. Do Not Publish — Tex. R. App. P. 47.2(b). [1] On appeal, appellant suggests that the State failed to prove the end of the chain of custody because it did not present testimony regarding how the evidence made its way to the courthouse for trial. This assertion was not raised in the court below. Furthermore, for evidence subject to scientific testing, once the chain of custody is established into the lab where it was tested, any gaps thereafter go to the weight of the evidence and not its admissibility. See Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. 1981); Martinez, 186 S.W.3d at 62; Menefee v. State, 928 S.W.2d 274, 280 (Tex. App.—Tyler 1996, no pet.). Even given this alleged end-of-the-chain gap, the evidence at trial was sufficient to sustain the conviction where the portions of the chain involving appellant’s pocket and the lab were established.