Rudolph Foley v. State

Opinion issued May 3, 2012 In The Court of Appeals For The First District of Texas ———————————— NOS. 01-11-00113-CR & 01-11-00114-CR ——————————— Rudolph Foley, Appellant V. The State of Texas, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Case Nos. 1205088 & 1205089 MEMORANDUM OPINION Appellant Rudolph Foley was convicted in a jury trial of delivery of heroin, weighing more than 1 gram and less than 4 grams,[1] and possession of cocaine with intent to deliver, weighing more than 4 grams and less than 200 grams.[2] Both charges were enhanced with two previous felony convictions for drug possession. The court sentenced him to thirty years’ confinement. On appeal, appellant challenges (1) the admission of testimony about the test performed on the drugs seized because the chain-of-custody evidence was allegedly deficient, and (2) the sufficiency of the evidence establishing the weight of the drugs. We affirm. BACKGROUND Undercover Officer Sinegal with the Houston Police Department testified that he called appellant and arranged to go to appellant’s trailer to purchase 15 baggies of heroin from him. When Sinegal arrived, appellant was sitting at an outside table near a barbeque pit. After Sinegal gave appellant the agreed-upon $150, Sinegal watched as appellant retrieved the baggies of heroin from the barbeque pit. Sinegal saw a bag of crack cocaine sitting next to the heroin in the barbeque pit. After the transaction was complete, Sinegal returned to his car and called in marked patrol units to arrest appellant. He also called his partner, Officer Patel, to describe the location of the crack cocaine in the barbeque pit. Appellant was arrested within minutes of the heroin transaction, and Patel testified that he located crack cocaine in the barbeque pit exactly as described by Sinegal. After the arrest, Sinegal drove back to appellant’s trailer to confirm for the uniformed officers that the correct person had been taken into custody. Patel gave the seized cocaine to Sinegal, as well as the money recovered (to confirm that its serial numbers matched the money Sinegal used in the buy). Both officers testified to later meeting back at their office to process the case. Sinegal gave the narcotics to Patel to weigh and test while Patel drafted the charges. Sinegal was present and watched Patel weigh, test, and place the crack cocaine and fifteen baggies of heroin into two separate clear bags, and then put those two bags into a manila evidence envelope. Sinegal then marked and sealed that manila envelope in Patel’s presence. Patel placed the envelope in the department’s narcotics lockbox. The only people who have access to the drugs in the lockbox are people in the crime laboratory. On the day of trial, Sinegal went to the crime laboratory and retrieved the envelope containing the narcotics seized from appellant. During trial, he identified the envelope by his initials written on the outside of the envelope, along with the date, appellant’s name, and the offenses for which appellant was charged. That manila envelope was marked as State’s Exhibit Number 6. After Sinegal identified State’s Exhibit 6, the State opened the envelope, removed the contents, and marked the clear bag holding the fifteen baggies of heroin as State’s Exhibit Number 7, and the clear bag containing the crack cocaine as State’s Exhibit Number 8. Sinegal testified that he recognized State’s Exhibit Numbers 7 and 8 as the narcotics he seized from appellant because he watched Patel put them into Exhibit 6 before he himself marked and sealed that manila envelope. Patel similarly testified that he recognized State’s Exhibit 7 and 8 as the narcotics that he weighed, tested, and placed in State’s Exhibit Number 6. Criminalist Kerry Adams testified that she recognized State’s Exhibits Number 7 and 8 as the narcotics that she tested in this case, and State’s Exhibit Number 6 as the envelope that contained them. Her in-court identification of these exhibits was based on the laboratory number assigned to this case and her initials that she wrote on each of the exhibits. Although State’s Exhibits 7 and 8 were not marked by Sinegal or Patel, Adams testified that she knew that they came from State Exhibit 6 because she wrote the laboratory number and the incident number on all three exhibits when she opened State’s Exhibit Number 6 and inventoried its contents. Ultimately, State’s Exhibit Numbers 7 and 8 (the bags containing the seized controlled substances) were admitted into evidence, but Exhibit Number 6 (the manila envelope that Exhibits 7 and 8 were placed in) was not admitted. Adams testified that the contents of Exhibits 7 and 8 had not been tampered with since coming into the laboratory’s possession, outside of what was necessary to perform testing. A previous criminologist had done testing before Adams, but Adams testified that the prior work was properly documented. Adams retested the evidence because the original criminalist was on maternity leave. Based on Adams’s analysis of the drugs, she concluded that the fifteen baggies in State’s Exhibit Number 7 contained 2.7 grams of heroin. She also concluded that Exhibit Number 8 contained 6.5 grams of crack cocaine. These weights were slightly less than the results of Patel’s weighing on the day of appellant’s arrest because a portion of the drugs were consumed during testing, and because substances commonly lose weight over time. ISSUES ON APPEAL Appellant raises two issues on appeal: (1) The trial court erred by admitting testimony regarding tests performed on the drugs admitted at trial because the State did not property present evidence of the chain of custody for the drugs. (2) The evidence was legally insufficient to support the convictions because the state failed to produce sufficient evidence establishing the weights for the controlled substances. ADMISSION OF EVIDENCE In his first point of error, appellant contends that the drugs seized and the evidence about testing on those drugs should not have been admitted. He notes that, when physical evidence is not identifiable through distinctive markings or the like, or if evidence is fungible, such as drugs, then proof of the chain of custody is required. See Davis v. State, 992 S.W.2d 8, 10–12 (Tex. App—Houston [1st Dist.] 1996, no pet.). He argues that although proof of the beginning and end of the chain of custody is usually sufficient, that evidence cannot support admission if the evidence was altered or tampered with. In this case, the officers did not put identifying marks on Exhibits 7 or 8. Appellant points out that, after the transactions and arrest, the officers met at “some unknown location to consolidate the drugs before meeting back at the police station.” While the officers testified that they weighed the drugs and placed them in an evidence envelope at the police station, appellant asserts that “the officers could not otherwise identify the drugs as being the same drugs recovered on February 25, 2009.” According to appellant, the officers failed to adequately place an identifying mark on the evidence, and “the circumstances surrounding their acquisition of the evidence and their meeting at some unknown location before going to the police station to then process the evidence raises at least some possibility of tampering.” As a result, appellant argues, “the State failed to properly authenticate the drugs and the Trial Court abused its discretion when it admitted the exhibits based on the officers’ testimony.” In response, the State contends that the “State established the chain of custody of this evidence from the time it left appellant’s possession to the time it was admitted at trial and, even assuming for the sake of argument that the appellant’s objection was meritorious, breaks in the chain of custody go to the weight, not the admissibility, of evidence.” The State argues that it is appellant’s burden to present affirmative evidence of tampering or commingling. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), abrogated on other grounds by Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). Because appellant did not present affirmative evidence of tampering, the State contends that the chain of custody was conclusively proven by the testimony from officers that seized the evidence that they placed the drugs in a marked envelope that they delivered to, and later retrieved from, the police lockbox. Accordingly, the State argues that admission of the seized drugs was not an abuse of discretion. A. Applicable Law We review the sufficiency of an evidentiary predicate and the trial court’s decision to admit or exclude evidence for abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984); Foster v. State, 101 S.W.3d 490, 498 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion when it acts without regard to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We will uphold the trial court’s ruling if it is reasonably supported by the record. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Physical evidence 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). When evidence lacks distinctive characteristics, the State may authenticate it by establishing its chain of custody. Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979). Absent proof of tampering, questions regarding the chain of custody go to the weight of the evidence presented at trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); Gallegos v. State, 776 S.W.2d 312, 315 (Tex. App.—Houston [14th Dist.] 1989, no pet.); accord Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Moreover, when the State shows the beginning and the end of a chain of custody, any intermediate gaps go to the weight rather than the admissibility of the evidence, particularly if the chain of custody ends at a laboratory. Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d at 315–16. B. Analysis We agree with the State that the trial court did not abuse its discretion by admitting into evidence the seized drugs and the testimony about the results of testing performed on those drugs. Sinegal testified that he seized the heroin from appellant, and Patel testified that he seized the crack-cocaine from appellant. Both officers testified that Sinegal watched Patel weigh, test, and place the controlled substances into two separate clear bags and then place them into a manila envelope. Patel then placed that envelope into the police department’s lockbox, and Sinegal retrieved the drugs for trial. Adams testified that the drugs had not been tampered with while in the laboratory’s possession except as necessary to perform tests. Absent evidence of tampering, this testimony was sufficient to establish the drugs’ chain of custody. Lagrone, 942 S.W.2d at 617; see also Young v. State, No. 01-95-00895-CR, 1996 WL 256594, at *1–2 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that chain of custody was proven when seizing officer did not mark individual bags of drugs, but placed them inside an envelope, marked that envelope, and deposited that envelope with the crime laboratory). There was no evidence that anyone tampered with the evidence in this case. Appellant’s speculation that the evidence might have been tampered with or altered, without more, does not render the chain-of-custody evidence insufficient. Irvine v. State, 857 S.W.2d 920, 925 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (holding that appellant’s contention that the “possibility exists that the original baggies were supplemented by other baggies” did not impact admissibility of evidence, but only went to weight). We overrule appellant’s first point of error. SUFFICIENCY OF EVIDENCE In his second point of error, appellant argues that the evidence of the weight of the drugs seized is insufficient to support his conviction. Appellant points to Sinegal’s and Patel’s failure to testify about how much the drugs weighed when they weighed them the day of appellant’s arrest. Appellant concedes that Adams, the criminalist, testified that the heroin in State Exhibit 7 weighed 2.7 grams and the cocaine in Exhibit 8 weighed 6.5 grams. Appellant contends, however, that the State “could not show with any certainty that the drugs representative of Exhibit 7 and Exhibit 8 were the same drugs recovered” from appellant and, thus, “it was just as likely that the drugs could have weighed less.” The State argues that there is no requirement that an officer weigh narcotics before sending them to a crime laboratory. Daniels v. State, 853 S.W.2d 749, 751 (Tex. App.—Houston [1st Dist.] 1993, no pet.). It further contends that Adams’s testimony about the weight of the drugs was sufficient, and that there was no evidence of such a break in the chain of custody to render that evidence about weight of the drugs unreliable. A. Applicable law An appellate court reviews legal and factual sufficiency challenges using the same standard of review. See Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim. App. 2011). “Under this standard, evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). B. Analysis The weight of the narcotics seized is the only essential element that appellant challenges as not supported by sufficient evidence. Appellant was charged and convicted of delivering one to four grams of heroin. The weight is supported by Adams’s testimony that the seized heroin weighed 2.7 grams. Appellant was charged and convicted of possession with intent to deliver four to two hundred grams of cocaine. The weight is supported by Adams’s testimony that the sized cocaine weighed 6.5 grams. Essentially, appellant’s argument is that there was such a break in the chain of custody that the State failed to demonstrate that the drugs that Adams weighed were the same drugs that were seized from appellant. While a break in the chain of custody can affect the evidence’s legal sufficiency if the break causes a complete failure of proof as to an essential element, Jones v. State, 538 S.W.2d 113, 114–15 (Tex. Crim. App. 1976), we have already concluded in response to appellant’s first point of error that the chain of custody in this case was adequately established. We thus overrule appellant’s second point of error. CONCLUSION We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. Tex. R. App. P. 47.2(b). [1] trial court cause number 1205088; appellate cause number 01-11-00113-CR [2] trial court cause number 1205089; appellate cause number 01-11-00114-CR