Thomas, Donnie Ray v. State ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DONNIE RAY THOMAS,                                   )

                                                                              )               No.  08-01-00414-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     Criminal District Court #4

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0151197-UK)

                                                                              )

O P I N I O N

Appellant, Donnie Ray Thomas, appeals his conviction for possession of a controlled substance, cocaine, and sentence of 10 years= confinement.  Appellant raises two issues for review by this Court.  He argues the evidence adduced at trial was both legally and factually insufficient to sustain a conviction.  We will affirm the action of the lower court.

On April 4, 2000, Officer Anthony Hernandez and his partner were on routine foot patrol on the grounds of the Dallas Inn.  The Dallas Inn is a combination motel-apartment complex in Dallas County, Texas.  The site is considered to be a high crime and high drug usage area.  As the officers entered a courtyard of the complex, they encountered Appellant.  Appellant was walking through the courtyard crossing in front of the officers. Officer Hernandez and Appellant were approximately ten feet apart from each other when the officer saw Appellant drop something from his left hand.  Appellant was detained by the other officer; and Hernandez searched the area and recovered a fish food container.  There were several small ziplock baggies containing a white rock-like substance in the container.  He performed a field test on the substance, which tested positive for crack cocaine.  Appellant was then arrested and later indicted for possession of cocaine in an amount greater than one gram but less than four grams.

At trial before the court, the State called Officer Hernandez to testify.  The State also offered into evidence two exhibits.  State=s Exhibit One is a document entitled Defendant=s Agreement to Stipulate Evidence.  It is signed by both Appellant and his counsel at trial.  The document is basically a written statement indicating Appellant agrees to stipulate to certain evidence in the case and waives his rights of appearance, confrontation, and cross-examination with regard to such evidence.  The signature of the trial judge is also included on the bottom of the document, with a statement indicating the agreement is approved by the court.  State=s Exhibit Two is a document entitled Stipulation.  It is signed by Appellant, defense counsel, and the assistant district attorney.  It provides in whole:

IT IS HEREBY STIPULATED THAT

The substance, found by Officer Hernandez, contained in zip-lock baggies, is a controlled substance, to-wit:  COCAINE, in an amount by aggregated weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams,

. . . .

The State=s case-in-chief consisted of the testimony of Officer Hernandez and the two exhibits admitted into evidence.

After the State rested, the Defense called Appellant. Appellant denied possession of the container of cocaine.  He testified he had gone to the complex to visit his aunt and he encountered the police officers as he was leaving.  He maintained he was not carrying, never discarded, and knew nothing about the container of drugs recovered by Officer Hernandez.  He testified that a number of other people were in the courtyard and near the complex at the time the police were patrolling.  He also told the court drugs were regularly sold in the area. Appellant maintained the officer was simply mistaken about seeing the container in his possession. 

At the conclusion of Appellant=s testimony, both sides rested and presented closing arguments.  The court found Appellant guilty and sentenced him to ten years= confinement.  Appellant then gave notice of appeal and appellate counsel was appointed by the court.

Appellant now argues the evidence presented at trial was both legally and factually insufficient to support the conviction. Integral to these arguments is Appellant=s reliance on and discussion of two exhibits found at the end of the reporter=s record for this case.  However, as noted in the State=s brief, these documents are unrelated to the case before us on review.  Though we cannot consider documents outside of the record or arguments specifically relying on such documents, we can consider any general claims raised by Appellant not relating to documents or occurrences outside the record.  Tex.R.App.P. 38.9.  Given such constraints, it appears Appellant raises two related sub-issues in support of his contention the evidence was both legally and factually insufficient to support a conviction.  First, Appellant argues the State failed to introduce the fish food container and the drugs found therein into evidence.  Second, Appellant asserts Officer Hernandez failed to make an in-court identification of the items seized at the scene and establish a chain of custody.

Appellant argues, without citation to authority, that the State failed to introduce the cocaine recovered by the police.  Contrary to Appellant=s assertion, it is not necessary for the State to offer into evidence the controlled substance found in the possession of a defendant.  Lake v. State, 577 S.W.2d 245, 246 (Tex.Crim.App. 1979); Velasquez v. State, 941 S.W.2d 303, 306 (Tex.App.--Corpus Christi 1997, pet. ref=d); Freeman v. State, 917 S.W.2d 512, 515 (Tex.App.--Fort Worth 1996, no pet.); Rogers v. State, 656 S.W.2d 511 (Tex.App.--Beaumont 1983, pet. ref=d).  It is sufficient that Officer Hernandez testified he saw Appellant discard the container of drugs and that he immediately recovered the container.  Freeman, 917 S.W.2d at 515. This testimony coupled with Appellant=s stipulation that the container recovered actually contained cocaine in the amount for which he was indicted is adequate. Freeman, 917 S.W.2d at 515; Wallace v. State, 770 S.W.2d 874, 877 (Tex.App.--Dallas 1989, pet. ref=d).  We further note that no objection was made at trial concerning the absence of the cocaine. Martinez v. State, 640 S.W.2d 378, 379 (Tex.App.--San Antonio 1982, pet. ref=d).  Appellant did not request an independent inspection or testing of the items recovered at the scene.  McBride v. State, 838 S.W.2d 248, 251 (Tex.Crim.App. 1992); Bell v. State, 866 S.W.2d 284, 288 (Tex.App.--Houston [1st Dist.] 1993, no pet.).  Nor is there any evidence or suggestion of bad faith on the part of the State.  Velasquez, 941 S.W.2d at 306; Freeman, 917 S.W.2d at 515.  Appellant=s argument relating to the failure to introduce the actual cocaine into evidence lacks merit.

Appellant cites no authority for his contention that the items recovered at the scene were required to be presented and identified by Officer Hernandez at trial.  As previously noted, Texas law does not require the actual controlled substance to be admitted into evidence.  Lake, 577 S.W.2d at 246; Velasquez, 941 S.W.2d at 306; Freeman, 917 S.W.2d at 515; Rogers, 656 S.W.2d at 511. Because the items were not introduced at trial for demonstrative or evidentiary purposes, there would be no need for an in-court identification.  Further, chain of custody is not at issue in this case either. Appellant=s stipulation that the contraband recovered was cocaine in the amount of more than one gram but less than four grams obviates any issue related to chain of custody.  Appellant=s argument related to these points fails.

Because we find no legal merit in the arguments raised by Appellant, there is no need to analyze the claims under the rubric of legal and factual sufficiency of evidence.  Appellant=s issues on appeal are overruled.  The judgment of the trial court is affirmed.

June 20, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)