Lamb, Travis ( 2015 )

PD-1650-15
PD-1650-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/18/2015 3:03:54 PM
Accepted 12/19/2015 11:03:47 AM
No. __________ ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
TRAVIS LAMB
Appellant
v.
THE STATE OF TEXAS
Appellee
On Petition for Discretionary Review from
Cause No. 01-14-00901-CR, affirming the conviction in
Cause No. 1394200, in the 351st Judicial District Court of Harris County, Texas
PETITION FOR DISCRETIONARY REVIEW
Oral Argument Requested ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
NICOLAS HUGHES
Assistant Public Defender
Harris County, Texas
TBN: 24059981
1201 Franklin St., 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 437-4316
nicolas.hughes@pdo.hctx.net
December 18, 2015
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND ATTORNEYS
APPELLANT: TRAVIS LAMB
TRIAL PROSECUTOR: KRISTIN ASSAAD
Assistant District Attorney
JOSEPH ALLARD
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
ATTORNEY AT TRIAL: KEITH LARSON
Attorney at Law
2855 Mangum Road, Suite A-559
Houston, Texas 77092-7493
JUDGE AT TRIAL: HON. MARK KENT ELLIS
351st District Court
Harris County, Texas
1201 Franklin Street, 14th floor
Houston, Texas 77002
ATTORNEY ON APPEAL: NICOLAS HUGHES
Assistant Public Defender
Harris County, Texas
1201 Franklin St., 13th Floor
Houston, Texas 77002
PROSECUTOR ON APPEAL: MELISSA HERVEY
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS ............................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ....................................................................................................... vi
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 2
GROUNDS FOR REVIEW.......................................................................................................... 2
REASONS FOR REVIEW ........................................................................................................... 3
1. The Court of Appeals had decided an important question of state law that has
not been, but should be, settled by the Court of Criminal Appeals ........................... 3
2. The Court of Appeals has decided an important question of state law in a way
that conflicts with Court of Criminal Appeals precedent ............................................ 3
ARGUMENT .............................................................................................................................. 4
I. The Court of Appeals erred by holding that conclusory expert testimony was
sufficient to support Appellant’s conviction, in contravention of the rule that “an
expert's simple ipse dixit is insufficient to establish a matter” Coble v. State, 330
S.W.3d 253, 277 n. 62 (Tex. Crim. App. 2010) ............................................................. 4
A. Due process imposes minimum standards the testimony required to support
a conviction for possession of a controlled substance ........................................... 4
B. Measuring the quality of expert testimony in a criminal case ........................... 5
C. An expert’s bare conclusions or ipse dixit are insufficient to establish a fact of
consequence in a criminal case .................................................................................. 6
D. In Appellant’s case, the expert testimony and laboratory report were
conclusory and insufficient to support a conviction for possession of a
controlled substance ................................................................................................... 7
iii
1. The laboratory report has no evidentiary value............................................. 7
2. The analyst’s testimony that the analysis of the crystalline substance
indicated the crystalline substance “contains cocaine” is insufficient to
support Appellant’s conviction ........................................................................... 8
3. Taken together, the laboratory report and the expert testimony are
insufficient to prove that the crystalline substance “contains cocaine” ....... 12
II. The Court of Appeals erred by holding that Appellant’s mere possession of a
crystalline substance Appellant claimed to be “bath salts” was sufficient to uphold
a conviction for a nearly undetectable amount of cocaine, in contravention in the
rule set forth in King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995) .................... 13
A. The visible presence of “adulterants or dilutants” does not establish that a
defendant possessed anything more than a trace amount of a controlled
substance .................................................................................................................... 13
1. The Court of Appeals included the weight of adulterants and dilutants
when determining whether there was a trace amount of cocaine present in
Appellant’s case ................................................................................................... 13
2. The Court of Appeals’s reasoning is circular, dangerous, and should be
rejected.................................................................................................................. 14
B. There is no testimony that established that Appellant knew or should have
known the crystalline substance contained cocaine.............................................. 16
1. The testimony regarding the apparent form of the crystalline substance 16
2. There was no testimony that any person in Appellant’s shoes would have
suspected there to be cocaine present in the crystalline substance ............... 17
3. There is no other circumstantial evidence which would connect Appellant
to the nearly undetectable amount of cocaine in this case ............................. 19
PRAYER .................................................................................................................................. 20
CERTIFICATE OF SERVICE .................................................................................................... 21
CERTIFICATE OF COMPLIANCE ........................................................................................... 21
iv
APPENDIX .............................................................................................................................. 22
v
INDEX OF AUTHORITIES
Federal Cases
Illinois v. Gates, 462 U.S. 213 (1983) ...................................................................................... 7
Jackson v. Virginia, 443 U.S. 307 (1979) .......................................................................... 4, 19
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) .................................................... 15
State Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................ 5, 6
Burrow v. Arce, 997 S.W.2d 229 (Tex.1999) .......................................................................... 7
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010)........................................... 2, 3, 6, 7
Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977).................................................. 4, 11
Earle v. Ratliff, 998 S.W.2d 882 (Tex.1999) .......................................................................... 7
Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) ............................................... 5
Frierson v. State, 839 S.W.2d 841 (Tex. App.—Dallas 1992, pet. ref'd) ........................... 18
Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 2008) .................................................................. 7
Hensley v. State, No. 02–13–00190–CR, 2014 WL 1999307 (Tex. App.−Fort Worth
May 15, 2014, no pet.)(mem. op., not designated for publication) ......................... 6, 11
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) .............................................................. 6, 7, 19
Joseph v. State, 897 S.W.2d 374 (Tex. Crim. App. 1995) .................................................... 20
King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995) ............................................ 3, 13, 20
Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010)...................................................... 5
Lamb v. State, 01-14-00901-CR, 2015 WL 6933120 (Tex. App.−Houston [1st Dist.]
Nov. 10, 2015) (mem. op., not designated for publication) ....................... 3, 14, 16, 18
Menges v. State, 9 S.W. 49 (Tex. Ct. App. 1888) ................................................................. 19
vi
N.N. v. Inst. for Rehab. & Research, 234 S.W.3d 1 (Tex. App.-Houston [1st Dist.] 2006)
withdrawn by No. 01-02-01101-CV, 2007 WL 4279613 (Tex. App.-Houston [1st
Dist.] Dec. 5, 2007) ............................................................................................................. 5
Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005) ..................................................... 15
Shelby v. State, 819 S.W.2d 544 (Tex. Crim. App. 1991) ..................................................... 4
Shults v. State, 575 S.W.2d 29 (Tex. Crim. App. 1979) ................................................ 19, 20
State v. Cunningham, 108 N.C. App. 185 (1992) ................................................................... 8
State Statutes
TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2011) .................................. 14, 15
TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2011) .................................. 14, 15
TEX. PENAL CODE ANN. § 6.04 (West 2011) .................................................................... 18
State Rules
TEX. R. APP. P. R. 66.3 ....................................................................................................... 3, 4
Treatises
Edward J. Fitzgerald, INTOXICATION TEST EVIDENCE § 68:16 (2d. ed.) ........................... 8
Other Authorities
54 AM. JUR. PROOF OF FACTS 3d 381 (1999) ...................................................................... 5
Christian G. Daughton, Illicit Drugs: Contaminants in the Environment and Utility in Forensic
Epidemiology, 210 REV. OF ENVIRON. CONTAMINATION AND TOXICOLOGY 59 (2011)
............................................................................................................................................. 16
Edward J. Cone & William W. Weddington, Jr. Prolonged Occurrence of Cocaine In Human
Saliva and Urine after Chronic Use, 13 J. ANALYTICAL TOXICOLOGY 65 (1989) ............ 16
Jeffrey C. Grass, Mcfadden v. United States: Deconstructing Synthetic Drug Prosecutions,
CHAMPION 34 (2015) ........................................................................................................ 18
vii
Maria João Valente et. al, Chromatographic Methodologies for Analysis of Cocaine and Its
Metabolites in Biological Matrices, INTECH (2012) available at
http://cdn.intechopen.com/pdfs-wm/31530.pdf ....................................................... 10
Photo 9 – Thin Layer Chromatography, IOWA DEP’T OF PUBLIC SAFETY (2006) available at
http://www.dps.state.ia.us/DCI/lab/drugidentification/tlc.shtml ........................... 12
S.E. Stein, An Integrated Method for Spectrum Extraction and Compound Identification from
GC/MS Data, J. AM. SOCIETY FOR MASS SPECTROMETRY (1999) available at
http://chemdata.nist.gov/dokuwiki/lib/exe/fetch.php?media=chemdata:method.p
df ........................................................................................................................................... 9
Standard Operating Procedures, HOUSTON FORENSIC SCIENCE CENTER § 8.5 (issued May
5, 2014) available at http://www.houstonforensicscience.org/sop/CS/FAD-CS-
SOP%20issued%2005-05-14-v2.pdf .......................................................................... 9, 11
The Importance of Area and Retention Time Precision in Gas Chromotography, Agilent
Technologies (Sept. 16, 2005) available at
http://www.agilent.com/cs/library/technicaloverviews/public/5989-3425EN.pdf 9
Thin Layer Chromatography, C.U. BOULDER (2015) available at
http://orgchem.colorado.edu/Technique/Procedures/TLC/TLC.html ................. 11
William Reusch, Mass Spectrometry, MICHIGAN STATE UNIVERSITY (May 5, 2013)
available at
http://www2.chemistry.msu.edu/faculty/reusch/virttxtjml/spectrpy/massspec/ma
sspec1.htm............................................................................................................................ 9
viii
STATEMENT REGARDING ORAL ARGUMENT
Appellant is requesting that the Court of Criminal Appeals draw a clear
distinction between a controlled substance and an adulterant and dilutant for purposes
of determining whether there is a trace amount of controlled substance present in the
evidence. Oral argument will be helpful to explain why Appellant’s case highlights the
need for a clear distinction between the two definitions. Additionally, oral argument
would provide Appellant the opportunity to help resolve any questions the Court may
have regarding the technology behind controlled substance identification.
STATEMENT OF THE CASE
Appellant was arrested by officers for failing to signal a left turn. (4 R.R. at 10-
11). Before impound Appellant’s truck, the police performed a search of the truck. (4
R.R. at 11). Inside the truck, police found a crystalline substance which they believed
to be methamphetamine, which Appellant claimed consisted of “bath salts,” and
which police claimed field tested positive using a test for amphetamine-class drugs. (3
R.R. at 19-20; 4 R.R. at 32-34). The crystalline substance was analyzed in the police
laboratory by presumptive chemical test (negative), an ultraviolet/visible
spectrophotometry test (negative), a fourier transform infrared spectroscopy (no
acceptable match), and gas chromatography / mass spectrometry1 (negative). (4 R.R.
at 63-65). The analyst concentrated the sample crystalline substance and detected
cocaine using GC/MS and thin layer chromatography. (4 R.R. at 65-66).
1
Hereinafter “GC/MS.”
1
STATEMENT OF PROCEDURAL HISTORY
Appellant was arrested for possession of substance in penalty group 1 , ≥ 1 g.
and < 4 g (methamphetamine) on July 11, 2013 and was indicted for possession of
substance in penalty group 1 , ≥ 1 g. and < 4 g (cocaine) in Cause 1394200 in the 351st
District Court of Harris County, Texas on September 26, 2013. (C.R. at 6, 14). On
October 28, 2014, Appellant was convicted of possession of substance in penalty
group 1 , ≥ 1 g. and < 4 g (cocaine) after a jury trial and was sentenced to 35 years in
prison. (C.R. at 76). On November 5, 2014, Appellant filed notice of appeal. On
November 10, 2015, Appellant’s conviction was affirmed in a memorandum opinion
in Cause 01-14-00901-CR. On November 13, 2015, Appellant filed a motion for
rehearing. On November 24, 2014, the First Court of Appeals denied Appellant’s
motion for rehearing.
GROUNDS FOR REVIEW
Ground One
The Court of Appeals erred by holding that conclusory expert testimony was
sufficient to support Appellant’s conviction, in contravention of the rule that an
“expert's simple ipse dixit is insufficient to establish a matter” Coble v. State, 330 S.W.3d
253, 277 n. 62 (Tex. Crim. App. 2010)
Ground Two
The Court of Appeals erred by holding that Appellant’s mere possession of a
crystalline substance Appellant claimed to be “bath salts” was sufficient to uphold a
2
conviction for a nearly undetectable amount of cocaine, in conflict with the rule set
forth in King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995)
REASONS FOR REVIEW
1. The Court of Appeals had decided an important question of state law that
has not been, but should be, settled by the Court of Criminal Appeals
The Court of Appeals concluded that regardless of whether the amount of
cocaine present, by itself, would constitute a trace amount, where the “adulterants or
dilutants” are visible and measurable, the mixture should not be treated as a trace
amount of a controlled substance. Lamb v. State, 01-14-00901-CR, 2015 WL 6933120
*3 (Tex. App.−Houston [1st Dist.] Nov. 10, 2015) (mem. op., not designated for
publication). This holding significantly alters the rule that “when the quantity of a
substance possessed is so small that it cannot be measured, there must be evidence
other than mere possession to prove that the defendant knew the substance in his
possession was a controlled substance.” King v. State, 895 S.W.2d 701, 703–704 (Tex.
Crim. App. 1995); TEX. R. APP. P. R. 66.3(b).
2. The Court of Appeals has decided an important question of state law in a
way that conflicts with Court of Criminal Appeals precedent
The Court of Appeals treated Appellant’s argument that the expert testimony
in this case was conclusory as a challenge to the admissibility of the evidence. Lamb,
2015 WL 6933120 at *3. However, Appellant challenged the expert testimony as mere
ipse dixit insufficient to support the verdict. See Coble v. State, 330 S.W.3d 253, 277 n. 62
(Tex. Crim. App. 2010). This Court should grant review as the Court of Appeals’s
3
analysis is incorrect and conflicts with state law. See Shelby v. State, 819 S.W.2d 544, 545
(Tex. Crim. App. 1991) (granting petition for discretionary review to determine
whether court of appeals applied the correct analysis); TEX. R. APP. P. R. 66.3(c).
ARGUMENT
I. The Court of Appeals erred by holding that conclusory expert testimony
was sufficient to support Appellant’s conviction, in contravention of the
rule that “an expert's simple ipse dixit is insufficient to establish a
matter” Coble v. State, 330 S.W.3d 253, 277 n. 62 (Tex. Crim. App. 2010)
A. Due process imposes minimum standards the testimony required to
support a conviction for possession of a controlled substance
Though cases involving controlled substances are common, there is scant
jurisprudence governing the expert testimony required to prove the identity of a
controlled substance. Generally, lay testimony is insufficient to establish the identity
of a controlled substance. Curtis v. State, 548 S.W.2d 57, 58–59 (Tex. Crim. App.
1977). Additionally, presumptive chemical tests are insufficient to prove that evidence
contains a particular controlled substance. Id. at 59. This is where the jurisprudence
stops.
What limitations does the right to due process impose upon expert testimony
required to support a conviction? Regardless of what type of evidence the State offers,
the State’s evidence must amount to more than a mere modicum: “it could not be
argued that such a ‘modicum of evidence’ could by itself rationally support a
conviction beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 320 (1979).
In order to determine whether there is enough evidence to support a conviction, a
4
reviewing court must measure the quality of the evidence offered in the case: “[l]egal
sufficiency of the evidence is a test of adequacy, not mere quantity. Sufficient
evidence is such evidence, in character, weight, or amount, as will legally justify the
judicial or official action demanded.” Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.
App. 2010). Like any other evidence, expert evidence must be sufficient to establish
an essential fact. See e.g. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010)
(Standing alone, BAC-test results are insufficient to prove intoxication at the time of
driving).
B. Measuring the quality of expert testimony in a criminal case
It is not the role of an appellate court to re-examine a factfinders’s conclusions.
Ex Parte Harleston, 431 S.W.3d 67, 70 (Tex. Crim. App. 2014) (the factfinder is in the
best position to evaluate the credibility of testifying witnesses). Correspondingly, the
appellate process is not usually conducted in a way that allows an appellate court to
investigate the accuracy of an expert opinion. 2 See N.N. v. Inst. for Rehab. & Research,
234 S.W.3d 1, 21 (Tex. App.-Houston [1st Dist.] 2006) withdrawn by No. 01-02-01101-
CV, 2007 WL 4279613 (Tex. App.-Houston [1st Dist.] Dec. 5, 2007). Instead, the
reviewing court simply ensures that there is a record-based foundation for the expert’s
opinion and that the opinion is linked to the facts of the case. See e.g. Hensley v. State,
2
Appellant does not dispute that “[m]ass spectrometry following gas chromatography
has been called an extremely reliable specific test for the measurement, separation and
identification of particular organic compounds—drugs, among them,” only that there
is no proof of the actual analysis conducted in this case. 54 AM. JUR. PROOF OF FACTS
3d 381 (1999).
5
No. 02–13–00190–CR, 2014 WL 1999307, 5 (Tex. App.−Fort Worth May 15, 2014,
no pet.)(mem. op., not designated for publication) (Evidence was insufficient where
fingerprint expert failed to properly link defendant’s fingerprints to the evidence).
Requiring that expert opinions are supported by a factual basis ensures a minimal
“quality of the evidence and the level of certainty it engenders in the factfinder's
mind.” Brooks, 323 S.W.3d at 918 (J. Cochran, concurring). On the other hand, “if no
basis for the opinion is offered, or the basis offered provides no support, the opinion
is merely a conclusory statement and cannot be considered probative evidence,
regardless of whether there is no objection.” Jelinek v. Casas, 328 S.W.3d 526, 536
(Tex. 2010). So while the appellate court is an inappropriate venue to challenge the
accuracy of foundational data supporting an expert’s opinion or the opinions
themselves, it is the appropriate place to challenge the absence of the required
foundational data. Id.
C. An expert’s bare conclusions or ipse dixit are insufficient to establish
a fact of consequence in a criminal case
In Coble, this Court addressed the issue of the admissibility of the bare
conclusions of an expert. Coble, 330 S.W.3d 253. After turning to civil law for
guidance, the Court concluded that expert ipse dixit is inadmissible:
Although expert opinion testimony often provides valuable evidence in a
case, 'it is the basis of the witness's opinion, and not the witness's
qualifications or his bare opinions alone, that can settle an issue as a
matter of law; a claim will not stand or fall on the mere ipse dixit of a
credentialed witness. […] An expert's simple ipse dixit is insufficient to
6
establish a matter; rather, the expert must explain the basis of his
statements to link his conclusions to the facts.
Id. at 277 n. 62.3 An expert’s ipse dixit is inadmissible because it has no evidentiary
value and, in a civil context, is insufficient to survive summary judgment. See Hamilton
v. Wilson, 249 S.W.3d 425, 427 (Tex. 2008) (“[C]onclusory statements, even from
experts, are not sufficient to support or defeat summary judgment.”). In the criminal
context, a conclusory statement is insufficient to establish even probable cause. Illinois
v. Gates, 462 U.S. 213, 239 (1983). If a conclusory statement is insufficient to prove
probable cause in a criminal case or survive summary judgment in a civil case, it is of
insufficient quality to support a conviction where the State’s burden of proof is
greater than in any other context. See e.g. Jelinek v. Casas, 328 S.W.3d at 536-538
(Expert’s conclusory testimony insufficient to prove causation in a civil case).
D. In Appellant’s case, the expert testimony and laboratory report were
conclusory and insufficient to support a conviction for possession of a
controlled substance
1. The laboratory report has no evidentiary value
Laboratory casefiles are often condensed and tendered into evidence as “one-
liner” reports, providing a bare conclusion on whether analysts detected a controlled
substance during testing:
Generally crime labs provide what might be called “one-liner” reports,
which are short and to the point but which also, often by design, manage
3
Citing Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999) and Earle v. Ratliff, 998 S.W.2d
882, 890 (Tex.1999).
7
to hide all the important data needed for an effective review. Often,
nothing of substance is provided[.]
Edward J. Fitzgerald, INTOXICATION TEST EVIDENCE § 68:16 (2d. ed.). The laboratory
report offered as evidence to support Appellant’s provides information about the
evidence tested (item: 1.1, ziplock with plastic bag with crystalline substance), the
weight of the evidence (net weight: 1.77 grams), and the conclusion of the analyst
(results: contains cocaine), but it offers no details about the analysis performed. (7
R.R. at State’s Ex. 5). The laboratory report is the quintessential conclusory opinion,
reporting an opinion without any factual support, and carries no evidentiary value. (7
R.R. at State’s Ex. 5); see State v. Cunningham, 108 N.C. App. 185, 194 (1992)
(differentiating conclusory laboratory report from the analysis utilized by chemist to
reach such a conclusion).
2. The analyst’s testimony that the analysis of the crystalline
substance indicated the crystalline substance “contains cocaine” is
insufficient to support Appellant’s conviction
a. GC/MS
Unlike a medical examiner who physically examines wounds or a psychologist
who observes the symptoms of a person’s mental disease, a criminalist using GC/MS
relies entirely upon the instrumentation to identify a controlled substance. See Standard
Operating Procedures, HOUSTON FORENSIC SCIENCE CENTER § 8.5 (issued May 5,
8
2014).4 While a criminalist may understand the theory behind and operation of a
GC/MS instrument, the instrument itself analyzes the sample. First, the
chromatography portion of the GC/MS instrument separates the different
component molecules in a sample into groups, measures the time it takes each group
of molecules to pass through the machine, measures the relative amounts of the
different molecules, and records those measurements in a chromatogram. The
Importance of Area and Retention Time Precision in Gas Chromotography, Agilent
Technologies (Sept. 16, 2005).5 Next, the mass spectrometer portion of the GC/MS
instrument ionizes each group of molecules into molecular ions (a charged version of
the whole molecule) and fragment ions (smaller, charged fragment molecules), sorts
the ions by charge and mass, and detects the mass and charge of the ions. William
Reusch, Mass Spectrometry, MICHIGAN STATE UNIVERSITY (May 5, 2013).6 The
molecules do not always fragment and register perfectly – sometimes spectra are
hidden by a larger background peak or are only present below the detection threshold.
S.E. Stein, An Integrated Method for Spectrum Extraction and Compound Identification from
GC/MS Data, J. AM. SOCIETY FOR MASS SPECTROMETRY (1999).7 Therefore, in order
4
Available at http://www.houstonforensicscience.org/sop/CS/FAD-CS-
SOP%20issued%2005-05-14-v2.pdf
5
Available at http://www.agilent.com/cs/library/technicaloverviews/public/5989-
3425EN.pdf
6
Available at http://www2.chemistry.msu.edu/faculty/reusch/virttxtjml/spectrpy/
massspec/masspec1.htm.
7
Available at http://chemdata.nist.gov/dokuwiki/lib/exe/fetch.php?media=
chemdata:method.pdf
9
to “match” a spectra with a known substance, a computer makes statistical
calculations comparing the observed values with an internal library of known
substances. The computer orders the best statistical comparisons by likelihood and
displays the results. Id.
Figure 1: Sample output from a GC/MS instrumental analysis of a substance containing
cocaine, including a full scan chromatogram (top-left), the mass spectrum of an individual
peak on the chromatogram (bottom-left), and an internal library reference for
cocaine(right). Maria João Valente et. al, Chromatographic Methodologies for Analysis of Cocaine and Its
Metabolites in Biological Matrices, INTECH (2012) available at http://cdn.intechopen.com/pdfs-
wm/31530.pdf.
The point of this explanation is simply to show how GC/MS instrumentation
functions without the need for the assistance or intervention of the analyst and to
highlight the limited the role of the analyst in the process. The analyst prepares
samples, ensures the proper operation of the instrument, prints out the results of the
10
analysis, and double-checks the observed values and the reference standards that the
substance is “matched” with. Standard Operating Procedures §§ 8.5.2, 8.6. An analyst’s
conclusion that the GC/MS testing indicated the presence of a controlled substance is
supported by the chromatograms and mass spectra linking the tested sample to a
known controlled substance. See Hensley, 2014 WL 1999307 at 5. Without this critical
data, the expert’s testimony that the GC/MS instrumentation indicated that the
crystalline substance “contains cocaine” lacks foundation and has no evidentiary
value. (4 R.R. at 66).
b. Thin layer chromatography
Thin layer chromatography is a laboratory technique where visual comparison
of the chromatogram from the sample and the known controlled substance is used to
verify a “positive” result. See Standard Operating Procedures § 15.6; Thin Layer
Chromatography, C.U. Boulder (2015).8 However, the evidentiary value of thin layer
chromatography is limited, as it is merely a presumptive test and cannot conclusively
identify a controlled substance. (7 R.R. at 66); Standard Operating Procedures § 3.5.1.
Presumptive chemical tests are insufficient to support a conviction for possession of a
controlled substance. Curtis, 548 S.W.2d at 59. Therefore, the presumptive thin layer
chromatography test performed in this case is insufficient to support the verdict. (7
R.R. at 66). Furthermore, the expert failed to provide the observational basis for her
8
Available at http://orgchem.colorado.edu/Technique/Procedures/TLC/TLC.html
11
opinion regarding the thin layer chromatography test. (7 R.R. at 66). Neither the
presumptive test nor the expert testimony are sufficient to support conviction.
Figure 2: Chromatogram comparing an unknown substance to reference standards for
cocaine, heroin, and methamphetamine by thin layer chromatography. Photo 9 – Thin Layer
Chromatography, IOWA DEP’T OF PUBLIC SAFETY (2006) available at
http://www.dps.state.ia.us/DCI/lab/drugidentification/tlc.shtml.
3. Taken together, the laboratory report and the expert testimony are
insufficient to prove that the crystalline substance “contains
cocaine”
As the laboratory report is a conclusory statement without any evidentiary
value and the expert testimony consists of only conclusory statements without any
underlying data supporting those statements (i.e. the mass spectra and
chromatograms), there is insufficient evidence to support the conclusion that the
crystalline substance contained cocaine.
12
II. The Court of Appeals erred by holding that Appellant’s mere possession
of a crystalline substance Appellant claimed to be “bath salts” was
sufficient to uphold a conviction for a nearly undetectable amount of
cocaine, in contravention in the rule set forth in King v. State, 895 S.W.2d
701 (Tex. Crim. App. 1995)
A. The visible presence of “adulterants or dilutants” does not establish
that a defendant possessed anything more than a trace amount of a
controlled substance
1. The Court of Appeals included the weight of adulterants and
dilutants when determining whether there was a trace amount of
cocaine present in Appellant’s case
The Court of Appeals concluded that because the “adulterants and dilutants”
were visible in Appellant’s case, that there was more than a trace amount of cocaine
present:
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 [confirmatory] tests. One [confirmatory] test was
[indeterminate]. 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 the substance found in
Appellant's car could not have been more than a trace amount. 9
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.”
Regardless of whether the amount of cocaine by itself would have
9
The analyst’s testimony additionally indicates that the cocaine was present at an
insignificant level: “If there's a bunch of adulterants and dilutants, it will probably take
the form of the adulterants and dilutants.”(4 R.R. at 74).
13
constituted a trace amount, with the adulterants and dilutants, it was
visible and weighed 1.77 grams. Accordingly, there was sufficient
evidence for the jury to determine that Appellant possessed more than
one gram and less than four grams of cocaine. This is not a trace
amount.
Lamb, 2015 WL 6933120 at *3 (citations omitted). The Court of Appeals held 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.” Lamb, 2015 WL 6933120 at 5.
2. The Court of Appeals’s reasoning is circular, dangerous, and
should be rejected
In the context of Section 481.115, an “adulterant or dilutant” does not exist
outside of the presence of a controlled substance in penalty group 1. TEX. HEALTH &
SAFETY CODE ANN. § 481.002 (West 2011)(49); TEX. HEALTH & SAFETY CODE §
481.115(a, c). An “adulterant or dilutant” is defined 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.” TEX. HEALTH & SAFETY CODE § 481.002(49).
The Controlled Substance Act defines “controlled substance” as:
“a substance, including a drug, an adulterant, and a dilutant, listed in
Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.
The term includes the aggregate weight of any mixture, solution, or
other substance containing a controlled substance.”
TEX. HEALTH & SAFETY CODE § 481.002(5). To consider the substances mixed with
controlled substances to actually be controlled substance would create a definition
which is “completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden,
14
503 U.S. 318, 323 (1992). Under that circular definition, a “controlled substance”
would mean a controlled substance mixed with any substance and “adulterant or dilutant”
would mean the same thing - any substance mixed with a controlled substance. The context in
which to consider adulterants or dilutants, as suggested by the plain language of the
definition of “controlled substance,” is in calculating the aggregate weight of a
controlled substance and determining the appropriate punishment range. TEX.
HEALTH & SAFETY CODE §§ 481.002(5); 481.115(a).
As an example explaining why the Court of Appeals’s analysis must be rejected,
consider a police officer who uses a sensitive test to detect cocaine in a homeowner’s
toilet bowl. See Seals v. State, 187 S.W.3d 417, 423 (Tex. Crim. App. 2005) (J. Womack,
concurring) (Even toilet bowl water could be considered an adulterant or dilutant).
Upon laboratory analysis, it is determined that there is a nearly undetectable, trace
amount of cocaine in the toilet water. Using the Court of Appeals’s rationale, because
the toilet water was visible, the homeowner’s mere possession of the toilet water is
sufficient to prove intentional and knowing possession of cocaine. But how does the
mere presence of water, not a material inherently associated with narcotics possession,
suggest that the homeowner should be aware of the trace presence of cocaine within
the water? How could a factfinder reasonably distinguish between the innocent,
unwitting homeowner whose guest had taken cocaine the night before and had used
15
the bathroom10 or whose water was tainted by trace background levels of cocaine in
the water supply 11 and the person who tried to dispose of cocaine in the toilet or who
was using cocaine in the bathroom? When the entire purpose of the “mere
possession” rule is to protect an innocent individual who may be unaware of the
presence of controlled substance residues or contamination, disregarding that rule
permits the jury to draw irrational conclusions from ambiguous facts.
B. There is no testimony that established that Appellant knew or should
have known the crystalline substance contained cocaine
1. The testimony regarding the apparent form of the crystalline
substance
Appellant was arrested possessing a crystalline substance, which he claimed to
be “bath salts,” a loose family of “recreational drugs created specifically to skirt the
law as it existed at the time of the chemical's creation”. Lamb, 2015 WL 6933120 at
*4. On inspection of the substance, police officers believed the crystalline substance
to be methamphetamine due to the shape of the crystals:
Q. (By the Prosecution) Based on your experience, what did the
substance look like to you?
A. (By Officer Gallegos) Due to its crystal formation, we believed it to
be methamphetamine.
10
Unmetabolized cocaine can be detected in the urine and saliva of cocaine-users,
even days after the last use of cocaine. Edward J. Cone & William W. Weddington, Jr.
Prolonged Occurrence of Cocaine In Human Saliva and Urine after Chronic Use, 13 J.
ANALYTICAL TOXICOLOGY 65 (1989).
11
Pharmaceuticals and illicit substances can persist in tapwater even after the water is
treated. Christian G. Daughton, Illicit Drugs: Contaminants in the Environment and Utility in
Forensic Epidemiology, 210 REV. OF ENVIRON. CONTAMINATION AND TOXICOLOGY 59,
77-79 (2011)
16
(4 R.R. at 33). The analyst did not testify that the structure of the crystalline substance
revealed the presence of cocaine within the substance, but merely testified that
cocaine can take the form of adulterants and dilutants:
Q. Is cocaine -- does cocaine come in a powder form?
A. Cocaine can come in different forms. It can come in a powder form.
I've seen it in a liquid form. I've seen it in a chunk substance, or
commonly known as crack cocaine. It can come in any form. If there's a
bunch of adulterants and dilutants, it will probably take the form of the
adulterants and dilutants.
Q. What do you mean by that?
A. That, you know, for example, I've seen cocaine in water, in liquid. So
the adulterants could be the liquid because it's adding to the cocaine
weight.
Q. And in this case, a crystalline substance, you're saying that cocaine
can take the appearance of the adulterants and dilutants?
A. Not cocaine, the compound, but other adulterants and dilutants can
interfere. We normally see cocaine in powder or in chunk, but like I
stated, I've seen it in other forms as well. I've seen it in liquid, I've seen it
in gooey, sticky forms or substances.
(4 R.R. at 74-75).
2. There was no testimony that any person in Appellant’s shoes would
have suspected there to be cocaine present in the crystalline
substance
There was no testimony that any person observing the crystals could – or
should – have expected that the crystalline substance contained cocaine. The State’s
laboratory expert testified that cocaine is typically found in chunk or powder form
and that she had previously found cocaine in a liquid or gooey form, but never
testified that she observed cocaine in a crystalline form. (4 R.R. at 72, 75-76). There
was no testimony that crystalline substances are used as binding agents to help make
17
cocaine visible or usable.12 See Frierson v. State, 839 S.W.2d 841, 846 (Tex. App.—
Dallas 1992, pet. ref'd) (Binding agents make drugs with small effective dosages visible
and easier to use). There was no testimony that a person possessing bath salts
knowingly possesses contraband, particularly when such substances were historically
conspicuously sold in stores. Jeffrey C. Grass, Mcfadden v. United States: Deconstructing
Synthetic Drug Prosecutions, CHAMPION 34, 35 (2015). There was not even an instruction
on the doctrine of transferred intent. TEX. PENAL CODE ANN. § 6.04(b)(1) (West
2011). Thus the State’s conviction is based on Appellant’s knowing possession of
cocaine, and not bath salts or methamphetamine.
The Court of Appeals indicated that the jury could have convicted Appellant by
rejecting Appellant’s claim that the crystalline substance consisted of bath salts: “[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.” Lamb, 2015 WL 6933120 at *4. But whether or not Appellant thought he
possessed bath salts or sought to take advantage of the legal gray-area occupied by
12
Whether a binding agent or bulking agent is intentionally or commonly added to a
controlled substance would be relevant to the question of whether a defendant
possessed the relevant culpable mental state in a drug case. It might be fair to
conclude that a nearly undetectable amount of cocaine mixed with cutting agents
seized from a defendant could indicate a desire to possess cocaine while a trace
amount of cocaine mixed with dirt and pocket lint may not indicate the knowing
possession of cocaine.
18
13
bath salts, the question remains: “is the evidence sufficient to support the
conviction?” Menges v. State, 9 S.W. 49, 50–51 (Tex. Ct. App. 1888) (State must prove
facts necessarily inconsistent with the innocence of the accused). Without an
admission by Appellant that he possessed cocaine and without testimony that
Appellant could or should have known that the crystalline substance contained
cocaine, there is no direct evidence that reflects that Appellant was aware of the drug’s
presence. Without any basic facts which would support the jury’s conclusion that
Appellant intentionally or knowingly possessed cocaine, the jury’s inference was
unreasonable and is not supported by the record. C.f. Jackson v. Virginia, 443 U.S. at
319 (holding that the jury may fairly draw reasonable inferences from basic facts to
ultimate facts). There is simply no evidence “that the defendant knew the substance in
his possession was [cocaine].” Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App.
1979).
3. There is no other circumstantial evidence which would connect
Appellant to the nearly undetectable amount of cocaine in this
case
Finally, the State did not offer any circumstantial evidence in Appellant’s case
that would support the conclusion that Appellant knowingly possessed the nearly
13
See e.g. Jelinek v. Casas, 328 S.W.3d at 532 (“When the evidence offered to prove a
vital fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no evidence."
The same is true when the evidence equally supports two alternatives: When the
circumstances are equally consistent with either of two facts, neither fact may be
inferred.”) (citations omitted).
19
undetectable amount of cocaine involved in this case. There was no evidence in this
case that suggested Appellant’s intoxication or recent use of cocaine. King, 895 S.W.2d
at 703. As Appellants’ claim that the crystalline substance consisted of “bath salts” is
exculpatory or ambiguous at worst, there is no evidence that suggests that Appellant
knowingly possessed contraband – much less cocaine. Joseph v. State, 897 S.W.2d 374,
376 (Tex. Crim. App. 1995). There was no paraphernalia discovered along with the
crystalline substance. King, 895 S.W.2d at 702; Joseph, 897 S.W.2d at 376. Simply put,
there was nothing more than the mere possession of a nearly undetectable amount of
cocaine supporting the State’s theory that Appellant knowingly possessed cocaine, and
this evidence is insufficient to support Appellant’s conviction. Shults, 575 S.W.2d at
30.
PRAYER
Appellant prays that this Court reverse and remand his case with instructions to
acquit the Appellant.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
Harris County Texas
1201 Franklin Street, 13th Floor
Houston Texas 77002
(713) 368-0016
20
(713) 386-9278 fax
TBA No. 24059981
nicolas.hughes@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of this Appellant’s Petition for Discretionary Review (Bullock)
has been served upon the Harris County District Attorney's Office − Appellate Section
and upon the State Prosecuting Attorney, on December 18, 2015 by electronic service.
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the page
and word count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains
4,420 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
21
APPENDIX
A. Opinion, Lamb v. State, 01-14-00901-CR, 2015 WL 6933120 (Tex. App.—
Houston [1st Dist.] Nov. 10, 2015) (mem. op., not designated for publication)
22
Opinion issued November 10, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00901-CR
———————————
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
1
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
2
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.
3
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.
4
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
5
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.
6
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
7
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
8
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
9
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).
10
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.”).
11
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).
12
We overrule Appellant’s sole issue.
13
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).
14