# In re L.G. > Court of Appeals of Texas · April 22, 1987 · 728 S.W.2d 939 URL: https://www.frixlaw.com/law-library/cases/5069155 ## Case - **Full name:** In the Matter of L.G. - **Court:** Court of Appeals of Texas - **Decided:** April 22, 1987 - **Citations:** 728 S.W.2d 939 - **Precedential status:** Published - **Opinion:** Dissent by Brady - **Judges:** Brady, Carroll, Shannon - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5069155 ## How later opinions describe it (automated extraction) - stating that when the only evidence in the record was to the effect that local services were available and that appellant could have been rehabilitated locally, there was no evidence to support the trial court’s reasons given for commitment ## Opinion text BRADY, Justice, dissenting. DISSENTING OPINION I must respectfully dissent from the majority opinion insofar as it holds there was sufficient evidence to show a crime was committed by appellant. The only evidence demonstrating the commission of a crime was the testimony of an accomplice that appellant represented the substance to be cocaine, that the accomplice felt different after ingesting the substance, and photographic evidence of appellant and the accomplice engaging in conduct consistent with possession of cocaine. No cocaine was actually recovered or admitted into evidence. Although adjudication of delinquency is a civil matter, the charges against the minor must be proven beyond a reasonable doubt. Tex.Fam.Code Ann. § 54.03(f) (1985). Upon an examination of the criminal cases governing proof of a corpus delicti under that stringent standard, I believe the evidence presented here was insufficient to show the commission of an offense. The only evidence identifying the substance as cocaine is the accomplice’s testimony of appellant’s representation and the accomplice’s description. Both of these bits of evidence were admitted over appellant’s objection that neither appellant nor the accomplice was shown to be qualified to accurately recognize cocaine. Although it is clear that no evidence of either party’s qualification or experience was offered, the majority holds that testimony relating the accused’s assertion that the substance was cocaine was sufficient to identify that substance. As authority for that position, they cite the following criminal cases: Hernandez v. State, 698 S.W.2d 679 (Tex.Cr. App.1985); Bright v. State, 556 S.W.2d 317 (Tex.Cr.App.1977); Stein v. State, 514 S.W.2d 927, 933-34 (Tex.Cr.App.1974). After a review of these opinions, I believe the majority’s reliance on them is misplaced. These cases do not hold the accused’s statement is the only proof required to establish the identity of a substance, but instead address much more narrow issues. In both Bright and Stein , the issue addressed by the appellate court was not the identity of the substance but rather whether the appellant possessed it. An examination of Bright reveals that appellant’s ground of error challenged the failure of the trial court to give the jury a circumstantial evidence charge on “appellant’s possession of the heroin.” Bright at 321 (emphasis added). The court held appel- *947 lanf s admission qualified as direct evidence he possessed the substance; therefore, a circumstantial evidence charge was unnecessary. The identity of the substance was not the matter proven by appellant’s admissions; indeed, earlier portions of the opinion reveal the State called a chemist to testify as part of its case in chief against appellant. The issue in Stein was also whether the evidence of appellant’s possession was direct or circumstantial. The court quoted trial testimony relating appellant’s statement that he knew there was some marihuana in his truck and that he saw officers remove it from the truck. Ruling on the nature of the jury charge warranted by this evidence, the court stated: Under the facts of this case, a charge on circumstantial evidence was not required. There was direct evidence in the testimony of the witness Lewis that appellant admitted having marihuana in his possession in the van owned and operated by him, and that he knew of the presence of such marihuana. Id. at 934 . This language does not hold that appellant’s statement proved the substance was contraband, but rather that it was proof he knowingly possessed it. Furthermore, when the court reviewed appellant’s testimony concerning the container found in his van, the court stated, “[o]ther evidence established that ... the substance in the van was marihuana.” Id. at 929-30 (emphasis added). In Hernandez , appellant challenged the sufficiency of the evidence to show a substance seized by police was contraband. The court held that “the unobjected-to testimony” of a police officer that appellant identified the substance as heroin was sufficient evidence to establish that the substance was heroin. That opinion goes on to hold the statement was “direct evidence,” citing Bright and Stein . The court also notes that, in this context, the statement was not offered as an opinion but as a statement of fact. Because evidence admitted without objection is admitted for all purposes, this statement was held to constitute some evidence to support the judgment. The narrow nature of the court’s holding in Hernandez makes it clear that appellant’s waiver of error was the determinative factor. Here, appellant made a timely objection to the admission of this testimony. The differences between the cases cited in the majority opinion and the facts of the case at bar contrast sharply with the virtually identical situation presented in Steele v. State, 681 S.W.2d 129 (Tex.App.1984, pet. ref'd). In Steele , the only evidence of appellant’s crime consisted of a police officer’s testimony that the appellant identified a substance as cocaine and sold a plastic bag of that substance to the officer for $50.00. The court held this evidence alone was insufficient to support a conviction for possession of cocaine. Id. at 131 . The Court of Criminal Appeals later refused the State’s Petition for Discretionary Review in that case. Like Steele , the only evidence in the present case that proves a corpus delicti is appellant’s representation of the substance as cocaine and evidence of conduct consistent with possession. The logical result of the majority’s holding is that convictions could be obtained upon evidence that the accused showed a witness a substance, stated that the substance was contraband, then acted in a manner which appears to corroborate that fact. Thus, anyone who displays a white powder, announces it is cocaine, then ingests it immediately, can be convicted for possession of a controlled substance beyond a reasonable doubt on this proof alone. The Court of Criminal Appeals cases cited by the majority do not support such a result. The adjudication of delinquency should be reversed upon the unambiguous authority of Steele v. State and because the evidence presented clearly leaves a reasonable doubt as to whether any crime was committed. I would therefore vote to reverse the judgment of the trial court and reform that judgment to show an acquittal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5069155. Public record. Not legal advice.