Travis Lamb v. State

Opinion issued November 10, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00901-CR

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TRAVIS LAMB, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1394200

MEMORANDUM OPINION

The State of Texas charged Appellant, Travis Lamb, by indictment with

possession of cocaine, more than one gram and less than four grams. 1 Lamb

pleaded not guilty. The jury found him guilty. Pursuant to an agreement between

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See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(a), (c) (Vernon

2010).

Appellant and the State, the trial court assessed punishment at 35 years’

confinement. In one issue on appeal, Appellant argues the evidence was

insufficient to establish that he knowingly possessed more than a trace amount of

cocaine.

We affirm.

Background

Officers R. Perez and F. Gallegos, officers with the Houston Police

department, were on patrol on the night of July 10, 2013. They observed Appellant

driving his car and turning without signaling. The officers performed a traffic stop.

During the course of the stop, Appellant admitted he had been driving without a

license. The officers arrested Appellant. Officer Gallegos performed an inventory

of the car in preparation for a tow truck to take the car.

During the inventory, Officer Gallegos found a clear plastic bag containing a

crystalline substance. The baggie had been in an open compartment on the driver’s

door. The officers discussed between themselves whether the substance might be

methamphetamine. Appellant heard their conversation and said, “It’s not meth.

It’s bath salts.” Officer Gallegos field-tested the substance. The field test

identified the substance as methamphetamine.

The State charged Appellant with possession of methamphetamine. Later, a

forensic examiner, A. Noyola, determined that the substance in the baggie

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contained cocaine. Noyola measured the weight of the substance at 1.77 grams.

The State modified the indictment to charge Appellant with possession of cocaine.

At trial, Noyola described the process for testing the substance. She

explained that the types of tests she performs are either presumptive or

confirmatory. Presumptive tests do not confirm the identity of the substance, but

indicate what substances could be present. A confirmatory test, as its name

suggests, confirms all the compounds present in the substance.

Noyola testified that all of the presumptive tests she performed at the

beginning (including chemical screening and ultraviolet spectrophotometry) were

negative, meaning no drugs were identified. Noyola then moved on to

confirmatory tests. One test, Fourier transform infrared spectroscopy, could not

produce an acceptable match. Another, gas chromatography mass spectrometry,

came out negative. Noyola ran this last test a second time with a greater

concentration of the sample. This time, the test identified cocaine in the sample.

Finally, Noyola ran another presumptive test, which was only identified as TLC.

This presumptive test also identified the presence of cocaine. Neither of the

positive tests identified the amount or concentration of cocaine within the sample.

Sufficiency of the Evidence

In his sole issue on appeal, Appellant argues the evidence was insufficient to

establish that he knowingly possessed more than a trace amount of cocaine.

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A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

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The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Analysis

Appellant was ultimately charged with possession of cocaine, more than one

gram but less than four grams. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(3)(D), .115(a), (c) (Vernon 2010). “[A] person commits an offense if

the person knowingly or intentionally possesses a controlled substance listed in

Penalty Group 1, unless the person obtained the substance directly from or under a

valid prescription or order of a practitioner acting in the course of professional

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practice.” Id. § 481.115(a). Cocaine is listed in Penalty Group 1. Id.

§ 481.102(3)(D). The offense is a third degree felony “if the amount of the

controlled substance possessed is, by aggregate weight, including adulterants or

dilutants, one gram or more but less than four grams.” Id. § 481.115(c). Appellant

argues in his issue on appeal that the evidence was insufficient to show that he

knowingly possessed cocaine and to show that the amount of cocaine was greater

than a trace amount.

For knowingly possessing a controlled substance, “[i]f the controlled

substance can be seen and measured, the amount is sufficient to establish the

defendant knew it was a controlled substance.” Victor v. State, 995 S.W.2d 216,

220 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In contrast, “[w]hen the

quantity of a substance possessed is so small that it cannot be quantitatively

measured, there must be evidence other than its mere possession to prove that the

defendant knew the substance in his possession was a controlled substance.”

Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979). Our disposition, then,

of Appellant’s argument that the record indicates he did not possess more than a

trace amount of cocaine influences our determination of whether he knowingly

possessed cocaine. Accordingly, we first address Appellant’s argument that he

only possessed a trace amount of cocaine.

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One of Appellant’s arguments challenging the weight of the cocaine is his

claim that Noyola failed to establish the amount or concentration of cocaine in the

substance. The State correctly argues it did not carry any burden to show this.

Under the new Health and Safety Code definition, the State is no

longer required to determine the amount of controlled substance and

the amount of adulterant and dilutant that constitute the mixture. The

State has to prove only that the aggregate weight of the controlled

substance mixture, including adulterants and dilutants, equals the

alleged minimum weight.

Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2005); see also TEX.

HEALTH & SAFETY CODE ANN. § 481.115(c) (making possession third degree

felony “if the amount of the controlled substance possessed is, by aggregate

weight, including adulterants or dilutants, one gram or more but less than four

grams” (emphasis added)), § 481.002(49) (Vernon 2010) (defining “adulterant or

dilutant” as “any material that increases the bulk or quantity of a controlled

substance, regardless of its effect on the chemical activity of the controlled

substance”).

Appellant further argues that Noyola failed to provide any “foundational

knowledge” for the jury to determine that the substance contained cocaine because

she did not provide the data from the tests that identified cocaine within the

substance. Noyola testified that the substance contained cocaine, and the trial

court admitted a one-page report indicating the same. To the degree that he is

arguing that this evidence should not have been admitted due to this alleged

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deficiency, Appellant did not object to Noyola’s testimony or to the admission of

the report.

To preserve error regarding the admission of evidence, a party must make a

specific and timely objection. TEX. R. APP. P. 33.1(a)(1); Penry v. State, 903

S.W.2d 715, 763 (Tex. Crim. App. 1995). This is as true of alleged unreliability of

expert testimony as it is of other evidentiary issues. See, e.g., Stephens v. State,

276 S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d) (holding appellant

did not preserve error when he neither objected to expert’s testimony at trial nor

requested a Daubert hearing).

Next, Appellant argues that Noyola’s testimony about the multiple tests on

the substance show that the amount of cocaine in the substance was only a trace

amount. When she could not get an identification of any drug in the substance on

the presumptive tests, Noyola began performing determinative tests. One

determinative test was indeterminative. The second was negative. It was not until

Noyola concentrated the sample and ran the second test again that she was able to

obtain any determination of a controlled substance, cocaine. She then ran a final

presumptive test and also received an identification of cocaine. Appellant argues

that the need to run multiple tests and, then, to ultimately concentrate the sample

before any reading of cocaine could be achieved establishes that the 1.77 grams of

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the substance found in Appellant’s car could not have been more than a trace

amount.

Even accepting the merits of Appellant’s reasoning, he cannot prevail.

Regardless of the amount of cocaine present in the substance, it was present, and it

was mixed with “adulterants and dilutants.” See TEX. HEALTH & SAFETY CODE

ANN. § 481.002(49) (defining “adulterants and dilutants”). Regardless of whether

the amount of cocaine by itself would have constituted a trace amount, with the

adulterants and dilutants, it was visible and weighed 1.77 grams. See Melton, 120

S.W.3d at 344 (holding State has to prove only that aggregate weight of controlled

substance mixture, including adulterants and dilutants, equals alleged minimum

weight). Accordingly, there was sufficient evidence for the jury to determine that

Appellant possessed more than one gram and less than four grams of cocaine. See

id. This is not a trace amount. See Shults, 575 S.W.2d at 30 (defining trace

amount to be quantity of substance possessed so small that it cannot be

quantitatively measured).

Appellant argues that Noyola failed to “identify which ‘adulterants and

diluatants’ were contained within the crystalline substance.” This was not

necessary information, however. The Texas Legislature defined “adulterants and

dilutants” to be “any material that increases the bulk or quantity of a controlled

substance, regardless of its effect on the chemical activity of the controlled

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substance.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (emphasis added).

This encompasses blood waste from a failed attempt to inject methamphetamine.

Seals v. State, 187 S.W.3d 417, 418, 422 (Tex. Crim. App. 2005). This is true

even though the presence of blood would make the drug toxic if injected into the

body. Id. at 427 (Cochran, J., dissenting).

Anticipating this outcome, Appellant further argues, “The rules set forth in

[two Court of Criminal Appeals cases] regarding trace amounts of controlled

substances, even those invisible to the human eye, and the rule set forth in Seals,

transforming pretty much any substance mixed with a controlled substance into an

‘adulterant or dilutant,’ make felons of the innocent.” 2 As Appellant’s argument

establishes, however, the Court of Criminal Appeals has already ruled on the

matters he raises. As an intermediate court of appeals, we are bound to follow the

precedent of the Texas Court of Criminal Appeals. Gonzales v. State, 190 S.W.3d

125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); TEX. CONST.

art. V., § 5(a) (providing that Court of Criminal Appeals is final authority for

2

In his reply brief, Appellant argues that due process requirements put limits on

what constitutes an adulterant or dilutant and on the quality of evidence that will

support a conviction for possession of a controlled substance. Appellant’s due

process arguments were not raised in his primary brief. An appellant cannot raise

issues raised for the first time in a reply brief. See TEX. R. APP. P. 38.3 (limiting

reply brief to addressing matters raised in appellee’s brief); Barrios v. State, 27

S.W.3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (rejecting

review of argument raised for first time in reply brief).

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interpreting criminal law in Texas). Appellant’s argument is outside the scope of

our review.

We turn now to the question of whether there was sufficient evidence to

show that he knowingly possessed cocaine. Appellant does not challenge the

sufficiency of the determination that he possessed the substance. Instead, he

disputes that there was sufficient evidence to establish that he knew it was cocaine.

We have held that the evidence was sufficient to establish that the substance found

in Appellant’s car contained cocaine, was visible, and weighed more than one

gram. Because the substance contained cocaine and can be seen and measured,

“the amount is sufficient to establish the defendant knew it was a controlled

substance.” Victor, 995 S.W.2d at 220.

Appellant points out his statement to the officers after they found the bag

with the controlled substance. While the officers were discussing between

themselves what type of controlled substance the bag might contain, Appellant

volunteered, “It’s not meth. It’s bath salts.” Appellant asserts that this statement

establishes that he did not know the substance was cocaine. The State argues that

it was not required to prove that he knew the substance was cocaine, only that he

knew the substance was a controlled substance. 3 We do not need to resolve either

3

But see King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). (“Therefore,

the State must prove, through other evidence, that appellant had knowledge that

the substance in his possession was cocaine.”).

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of these arguments, however. While it is undisputed that Appellant made this

statement, there was no requirement for the jury to conclude that this statement

was honest and credit it. “With respect to testimony of witnesses, the jury is the

sole judge of the credibility and weight to be attached thereto, and when the record

supports conflicting inferences, we presume that the jury resolved the conflicts in

favor of the verdict, and we defer to that determination.” Thomas v. State, 444

S.W.3d 4, 8 (Tex. Crim. App. 2014). Appellant argues elsewhere in his brief,

“There is no guarantee that a person possessing . . . ‘bath salts,’ recreational drugs

created specifically to skirt the law as it existed at the time of the chemical’s

creation, possesses a prohibited substance.” A jury could have reasonably

determined that Appellant’s statement was designed to take advantage of any

ambiguity on the legality of what he claimed the substance to be. 4 Because this

determination would support the jury’s verdict, we must defer to that

determination. See id.

We hold that, because the amount of cocaine was visible and measureable,

the evidence is sufficient to support the jury’s determination that Appellant knew

the substance was cocaine. See Victor, 995 S.W.2d at 220.

4

Appellant argues, “There is no record-based or evidence-based reason to

disbelieve [Appellant]’s assertion that he thought the drugs were ‘bath salts.’”

There is no reason to believe the assertion, either. Credibility determinations are

left to the jury and are not subject to sufficiency-of-the-evidence reviews. See

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014).

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We overrule Appellant’s sole issue.

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Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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