William Elzy Isham v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

William Elzy Isham

Appellant

Vs.                   No. 11-01-00402-CR  -- Appeal from Stephens County

State of Texas

Appellee

The jury convicted William Elzy Isham of possession of methamphetamine,^[1] and the trial court assessed his punishment at confinement for 10 years and a fine of $5,000.  We affirm.

                                                                Background Facts

Trooper Jason Shea of the Texas Department of Public Safety (DPS), Agent Robert Rains of the West Central Texas Interlocal Crime Task Force, and Stephens County Sheriff James D. Reeves testified that they, along with other law enforcement officers, executed a search warrant on August 14, 2000, which resulted in the arrests of appellant, Preston Crow, Danny Krick, and Dennis Langley.  Crow was the owner of the house which was searched.  Appellant was seen running from the house with a Pyrex dish in his hand as the law enforcement officers approached the house.  Appellant was also seen pouring a white powdery substance from the Pyrex dish just before he was arrested.  The officers collected as much of the white powdery substance as they could.  There was chain-of-custody testimony on the white powdery substance from the scene of appellant=s arrest to the Department of Public Safety Laboratory.

The State=s expert witness, Eddie Lee Dickie, testified that he was the Asupervising criminalist@ at the DPS Lab, that he had been employed by the DPS for 27 years, that the exhibit which was submitted for examination contained methamphetamine, that it also contained grass and weeds, and that the total weight of the exhibit was 6.10 grams. On cross-examination, the State=s expert testified:

Q: This is what weighed how much, 6 grams?

A: 6.10 grams.

Q: And that weight is whatever is in this bag; is that correct?

A: That is correct.  Well, except for what I took out to analyze.  I believe the weight on it after I analyzed it that=s there is approximately 5.7 grams.

Q: So this is 5.7 grams and that includes the grass, the twigs, and whatever?

A: That is correct.

Q: You don=t know how much methamphetamine is here?

A: Pure methamphetamine, no.

Q: Well, you=re just saying it=s more than four, that=s what you=re saying?

A: That is correct.

Q: It=s your opinion that it=s more than four?

A: Yes, sir.  The grass and weeds would have to weigh approximately 2.10 grams.

Q: Couldn=t you have taken those out and weighed the powder without the grass and weeds?

A: I could have taken some of them out, but I couldn=t have gotten them all out, no, sir.

Q: Strainer wouldn=t have done the job?

A: We don=t have one over at the lab, I don=t think, that could do it.  (Emphasis added)

On redirect examination, the State=s expert testified:

Q: The bulk of what is contained in [the exhibit] is methamphetamine, is it not?

A: The powder, yes.

Q: The powder, that=s the powder.  And again it=s your professional opinion that that is more than four grams?

A: That is correct.  (Emphasis added)

The record also contained testimony from Sheriff Reeves that they gathered as much of the white powdery substance as they could and his estimate that there was as much of it left on the ground as they were able to gather. 

                                                                   Points of Error

Appellant briefed three points of error.  He argued that the evidence was Alegally@ insufficient and Afactually@ insufficient to support his conviction; these points were based upon his contention that the State failed to prove beyond a reasonable doubt that the controlled substance which he had possessed weighed  Aat least 4 grams.@  Appellant argues in his final point that the trial court erred in overruling his motion for directed verdict because there was insufficient evidence to prove that the methamphetamine weighed Aat least 4 grams.@

                                                        Sufficiency of Evidence Tests

Appellant cites Brumit v. State, 42 S.W.3d 201 (Tex.App. - Fort Worth 2001, pet=n ref=d), and Goff v. State, 777 S.W.2d 418 (Tex.Cr.App.1989), for his argument that Aweight@ testimony on controlled substances requires more than a Abest guess@ by an expert witness.  Those cases are factually distinguishable.

On the first point, we have reviewed Aall of the evidence in the light most favorable to the prosecution,@ and we have determined that a rational fact finder Acould have found the essential elements of the offense beyond a reasonable doubt.@  Therefore, the evidence is Alegally@ sufficient to support the conviction. See, e.g., Jackson v. Virginia, 443 U.S. 307 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002). On the second point, we have examined Aall of the evidence in a neutral light,@ and we have determined that the evidence is Afactually@ sufficient because it is not  Aobviously weak@ nor Agreatly outweighed@ by contrary evidence; consequently, the conviction is neither  Aclearly wrong@ nor Amanifestly unjust.@ See  Vasquez v. State, supra. 

Since the evidence was both Alegally@ and Afactually@ sufficient to support the conviction, the court did not err in overruling appellant=s motion for a directed verdict. 

Points of Error Nos. 1, 2, and 3 are overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

April 17, 2003

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

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[2]

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^[1]This was a felony of the second degree because the indictment alleged that the amount possessed was more than 4 grams, but less than 200 grams.  See TEX. HEALTH & SAFETY CODE ANN. ' 481.115(d) (Vernon Pamph. Supp. 2003).

^[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.