Moris L. Richmon v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-142-CR
MORIS L. RICHMON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Moris L. Richmon was convicted by a jury of two counts of
possession of controlled substances in the amount of one gram or more but less
than four grams, namely cocaine and heroin.2 In his first and second points, he
1
… See Tex. R. App. P. 47.4.
2
… See Tex. Health & Safety Code Ann. §§ 481.102(3)(D) (Vernon Supp.
2008), 481.115 (a), (c) (Vernon 2003).
argues that the evidence was legally and factually insufficient to show
possession of heroin in the amount of one or more but less than four grams.3
In his third and fourth points, he argues that the evidence was legally and
factually insufficient to show he possessed cocaine in the amount of one or
more but less than four grams. We affirm.
II. Factual and procedural background
Appellant was riding his bicycle on a dark street at 4:00 a.m. on April 24,
2007, when Kennedale Police Officer Joshua Worthy pulled him over because
of an obscured rear reflector and lack of a front light. Officer Worthy asked
Appellant for identification and ran his name to check for warrants. He took
Appellant into custody for outstanding warrants and searched him incident to
arrest. Officer Worthy found two cardboard matchboxes in Appellant’s left
front pants pocket; one box contained matches but the other contained two
white rock substances that Officer Worthy described as appearing “consistent
with rock cocaine.” From Appellant’s right front pants pocket, Officer Worthy
recovered another matchbox containing thirty-two clear capsules full of a brown
granulated material. Officer Worthy used a field test kit to perform a
3
… Rather than addressing the heroin evidence first, Appellant initially
discusses the cocaine evidence in the body of his argument. We will address
the arguments in the order of his listed points of appeal.
2
preliminary test for cocaine on the rock-like substances and then packaged and
processed the items for further testing. Appellant was indicted on two counts,
possession of cocaine and possession of heroin.
Christina Coucke, a senior drug chemist at the Tarrant County Medical
Examiner’s office, testified about the results of her tests on the rock substance
and brown capsules. Coucke’s educational background included a bachelor of
science degree in biology and a master’s degree in forensic science. She
testified that she had previously worked as a drug chemist at the Dallas County
Medical Examiner’s office before her current employment.
Coucke analyzed the substances found in the matchboxes received from
the Kennedale police department. She stated she weighed the “hard off-white”
rock substance and found it weighed 1.20 grams. She performed a color test
on “a little bit” of the rock substance by adding it to a liquid solvent to allow
for a color change; the result was presumptively positive for cocaine. She then
used a gas chromatograph mass spectrometer to further examine the
substance; the process “breaks apart the molecules” of a small amount of the
substance and then “reads the fragments.” The spectrometer analysis revealed
that the substance contained cocaine.
Coucke testified she took the thirty-two capsules from the matchbox,
emptied the capsules (one of which contained only residue), and weighed the
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substance in each one, individually; the aggregate weight was 4.06 grams.
Coucke stated she performed “a couple of different” color tests on the brown
substance, and it tested “presumptively positive for heroin.” She then weighed
a 1.08 gram sample of the 4.06 grams and used the spectrometer to determine
that the sample contained heroin.
Additionally, Coucke said her analyses of both substances included
adulterants and dilutants. Under cross-examination, Coucke confirmed that her
lab performs qualitative analyses, rather than quantitative analyses, meaning
she just identifies what the substance is. Coucke explained that quantitative
analysis is when an examiner deciphers the amount of the substance in the
total matrix. She testified that she had examined crack cocaine around 500 to
1,000 times in her duties and that she had previously testified as an expert
witness in Tarrant County courts.
The jury returned a verdict of guilty for both possession counts and
assessed a punishment of three years’ confinement for the cocaine possession
offense and five and one half years’ confinement for the heroin possession
offense.
III. Appellant’s first and second points
We will discuss Appellant’s first two points together as they regard the
sufficiency of the evidence supporting the possession of heroin conviction and
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his third and fourth points together as they regard the evidence for the
possession of cocaine conviction. Appellant’s main argument in his first two
points is that the scales used to weigh the substances and the spectrometer
used to confirm the presence of heroin in the substances were not “certified”
or tested and that the chemist did not test all of the material; thus the evidence
is insufficient to establish Appellant’s possession of the alleged heroin was in
an amount of one gram or more but less than four grams.
A. Legal sufficiency of evidence for heroin possession
1. Standard of review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). This standard gives full play to the
responsibility of the trier of fact 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, 235 S.W.3d at
778. The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown
5
v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
2. Applicable law and analysis
The State is required to prove every element of an offense beyond a
reasonable doubt. See Juarez v. State, 198 S.W.3d 790, 793 (Tex. Crim. App.
2006) (stating that elements of the offense must be charged in the indictment,
submitted to jury, and proved by the State beyond reasonable doubt.) The
substantive elements of Appellant’s offense are that he (1) knowingly or
intentionally (2) possessed (3) heroin and (4) the amount possessed was, by
aggregate weight, including adulterants or dilutants, one gram or more but less
6
than four grams. See Tex. Health & Safety Code Ann. § 481.102(2), §
481.115(a), (c).
Appellant does not contest the sufficiency of evidence that he knowingly
or intentionally possessed the substance. Rather, Appellant argues that
because “there was no evidence that the scales were certified nor tested to be
sure they were accurate,” the evidence is insufficient to establish beyond a
reasonable doubt that the substance weighed one gram or more but less than
four. He also contends that there was no evidence that the spectrometer was
certified or tested to be sure the results were accurate, so the evidence was
insufficient to prove beyond a reasonable doubt that the substance was heroin.
The jury heard evidence from Coucke, whose qualifications and
experience were not questioned. She weighed the substances and performed
the tests at the Tarrant County Medical Examiners’ office laboratory that is
accredited by the Texas Department of Safety. Coucke explained her process
for attaining the heroin test results from both the color tests and spectrometer
and stated how the results from the presumptive tests and from the
spectrometer were consistent. The jury also heard Coucke describe the process
of weighing the brown substance from each capsule, determining the aggregate
weight and then later weighing a sample of 1.08 grams of the substance, which
was a sufficient weight to meet the requisite amount of one gram or more but
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less than four grams as charged, before testing that sample with the
spectrometer.
Appellant’s complaints that there was no evidence of the scales and
spectrometer having been certified or tested to determine their accuracy are
complaints regarding what the State must prove for admissibility of the
testimony for the weight and results of the tests and arguably should have been
raised by objection to the admissibility of the results at trial. See, e.g., Hewitt
v. State, 734 S.W.2d 745, 749 (Tex. App.—Fort Worth 1987, pet. ref’d)
(holding complaint as to lack of predicate showing that equipment was certified
waived where counsel for defendant failed to inquire about specific equipment
used or to offer evidence from any other source that equipment was faulty or
uncertified); Moseley v. State, 696 S.W.2d 934, 936 (Tex. App.—Dallas 1985,
pet. ref’d) (holding waiver of right to object to improper predicate occurred by
allowing earlier witness to testify without objection to the alcohol
concentration); cf., Hernandez v. State, 819 S.W.2d 806, 817 (Tex. Crim. App.
1991) (holding the state was not required to prove use of properly compounded
chemicals in atomic absorption kit test as predicate for admissibility), cert
denied, 504 U.S. 974, 112 S. Ct. 2944 (1992).
Assuming that these matters were required to be affirmatively shown by
the State as a predicate for admissibility of the weights found and the results
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of the spectrometer testing, we conclude that Appellant’s complaints—in the
absence of an objection—go only to the weight of the evidence and its
credibility rather than the competency or admissibility of the evidence. See,
e.g., LaGrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.) (holding most
questions concerning care and custody of a substance go to the weight rather
than the admissibility of the evidence), cert. denied, 522 U.S. 917, 118 S. Ct.
305 (1997); Harrell v. State, 725 S.W.2d 208, 213 (Tex. Crim. App. 1986);
Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985) (holding lack of
predicate to show proper chain of custody for key, absent objection, went to
weight of evidence rather than admissibility), cert. denied, 475 U.S. 1031, 106
S. Ct. 1238 (1986); see also Hamilton v. State, No. 06-07-00084-CR, 2008
WL 2744635, at *3 (Tex. App.—Texarkana July 16, 2008, pet. filed) (holding
complaint as to insufficiency of evidence that amount of cocaine exceeded one
gram actually challenged credibility of chemist’s testimony, acceptance of
which was within jury’s prerogative).
The jury was entitled to draw inferences from the facts regarding the
accuracy of the laboratory testing devices in determining the requisite amount
of heroin possession. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W.3d at 778. The jury could reasonably have inferred that the
scales and spectrometer were accurate and certified from the evidence that the
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lab was accredited by the DPS and from Coucke’s own experience and
educational background, as well as from the differing weights found for each
substance and the consistency with the presumptive tests. Viewing the
evidence in the light most favorable to the verdict, we hold a rational jury could
have concluded beyond a reasonable doubt that Appellant possessed the
requisite amount of the controlled substance heroin. Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. Therefore, we overrule
Appellant’s first point regarding the legal sufficiency of the evidence for
possession of heroin.
B. Factual sufficiency of evidence for heroin possession
Appellant argues that the evidence is factually insufficient and states “the
record is absolutely void of any evidence that the scales and machine were
certified nor tested to show that the results of the weights and substance were
accurate.” He also argues that Coucke’s testimony regarding the quantity of
the heroin measuring over four grams was insufficient to show he possessed
over four grams.
1. Standard of review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,
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204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the
evidence supporting the conviction, although legally sufficient, is nevertheless
so weak that the factfinder’s determination is clearly wrong and manifestly
unjust or whether conflicting evidence so greatly outweighs the evidence
supporting the conviction that the factfinder’s determination is manifestly
unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
2. Analysis
The jury heard ample and uncontradicted testimony from Coucke about
her testing process and the accredited facility in which she performs the tests.
The fact that she repeatedly weighed the brown capsules, first to determine
aggregate weight and, second, to weigh a small portion for the spectrometer
test, provided evidence supporting the conclusion that the stated amount of
heroin was sufficient under the statute’s requirements. See Hamilton, 2008 WL
2744635, at *3 (stating jurors “believed the chemist’s testimony and accepted
her calculations, which was their prerogative.”)
Appellant also argues that the evidence supporting the substance quantity
requirement is factually insufficient because there was an “implication that he
possessed four grams instead of barely over one gram . . . and the evidence
was factually insufficient to show he possessed over four grams.”
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The offense at issue requires that the Appellant possess between one and
four grams of the controlled substance (heroin). See Texas Health & Safety
Code § 481.102(2). Coucke stated that she tested 1.08 grams of the
substance, an amount that comports with the statute’s requirement for
possession. See id. § 481.102(2). Conviction did not require legally or
factually sufficient evidence of more than four grams because Appellant was
not charged with possessing over four grams and because the jury was not
instructed to determine if Appellant possessed over four grams; rather the
charge described the offense as possession of “heroin of one gram or more but
less than four grams as charged in Count Two of the indictment.” 4
Considering all of the evidence in a neutral light, we cannot say that the
evidence is so weak that the jury’s verdict seems clearly wrong or manifestly
unjust. Watson, 204 S.W.3d at 414. And because there is no contrary
evidence, we cannot say the verdict is against the great weight and
4
… Appellant also contends that the implication from the testimony that
he possessed more than four grams “affected the jury in assessing
punishment.” Appellant did not object on this basis at trial, and he has not
briefed this complaint nor explained why the jury was not properly entitled to
consider that evidence in assessing his sentence. See Tex. Code Crim. Proc.
Ann. art. § 37.07(3)(a)(1) (Vernon Supp. 2008) (stating evidence may be
offered as to any matter the court deems relevant to sentencing, including
circumstances of offense for which he is being tried as well as any other
evidence of an extraneous offense or bad act shown beyond a reasonable doubt
by evidence to have been committed by the defendant).
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preponderance of the evidence. Id. at 414–15. We overrule Appellant’s
second point challenging the factual sufficiency of the evidence supporting the
heroin conviction.
IV. Appellant’s third and fourth points
A. Legal sufficiency of evidence of possession of cocaine
Appellant argues that the evidence is legally insufficient to support the
possession of cocaine count for the same reason, because the scales and
spectrometer used to measure the cocaine were not certified or proved to be
functioning properly. He also argues that it is unclear whether both rocks of
the white substance were weighed.5
1. Applicable law
Under the relevant statutes, the State must prove beyond a reasonable
doubt that Appellant (1) knowingly or intentionally (2) possessed (3) cocaine
and (4) the amount possessed was, by aggregate weight, including adulterants
or dilutants, one gram or more but less than four grams. See Tex. Health &
Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (c).
5
… This latter argument again is resolved by the previously cited Melton
decision, stating that each part of a homogenous substance does not have to
be tested to provide proof of the controlled substance under the statute. See
Melton, 120 S.W.3d at 342–44.
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2. Analysis
As we have held above with respect to the possession of heroin count,
the jury was entitled to draw inferences from the facts regarding the accuracy
of the laboratory scales and spectrometer in determining the amount of cocaine
possession. Coucke testified that she weighed the “hard off-white material,”
and it weighed 1.20 grams. She performed a color test on a small portion of
the material, which tested presumptively positive for cocaine, and confirmed
that the substance contained cocaine by the gas spectrometer. Additionally,
the random, representative portion tested by the gas spectrometer was taken
by Coucke from material weighing within the required range of one gram or
more under the possession statute cited in Appellant’s indictment, and both
rocks were taken from the same receptacle, i.e, a single matchbox, so it is
irrelevant whether Coucke tested both rocks. See § 481.115(a), (c); Melton,
120 S.W.3d at 345 (holding that State could randomly sample some rocks to
determine whether they contained cocaine where all rocks were found in same
receptacle and all had same color and texture); Guia v. State, 220 S.W.3d 197,
201–03 (Tex. App.—Dallas 2007, pet. ref’d).
Based on the previously-explained legal sufficiency standard of review,
viewing the evidence in a light most favorable to the prosecution, a rational jury
could have found beyond a reasonable doubt that Appellant possessed the
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requisite amount of cocaine under the statute. See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789. We therefore overrule Appellant’s third point.
B. Factual sufficiency of evidence of possession of cocaine
Appellant argues in his fourth point that the record is unclear as to
whether both rock-like substances of the alleged cocaine were tested and
weighed. He argues that the evidence is too weak and thus factually
insufficient to support the conviction for possession of cocaine of one gram or
more but less than four grams.
1. Analysis
The testimony from Officer Worthy was uncontradicted that he found
both pieces of the rock-like substance in the same receptacle—i.e.—a cardboard
matchbox in Appellant’s left front pants pocket. His testimony was further
uncontradicted that the appearance of the substances was consistent with rock
cocaine. He packaged and processed the substances for further testing after
conducting a preliminary field test of them for cocaine. The jury could have
inferred that the preliminary test was presumptively positive for cocaine.
Coucke testified that she weighed the “hard off-white material,” and it
weighed 1.20 grams. She said a sample color tested presumptively positive for
cocaine. The sample was also confirmed to contain cocaine by her testing with
the spectrometer. While it is unclear whether she either weighed both rocks
15
together or whether she tested a sample of both rocks, her conclusion is clear
and unquestioned that the sample was taken from an amount that weighed
1.20 grams, which is within the required range under the possession statute
cited in Appellant’s indictment. All of the material was admitted into evidence,
and the jury could make its own determination as to whether the rocks
appeared to be the same in substance. Thus, it is immaterial whether Coucke
weighed or tested only one or both rocks. See Tex. Health & Safety Code Ann.
§ 481.115(a), (c); Melton,120 S.W.3d at 343–44; Zone v. State, 118 S.W.3d
776, 776 (Tex. Crim. App. 2003); see also Guia, 220 S.W.3d at 201–03.
It is unclear why the testimony elicited from the chemist by the State in
this case was not more detailed. Nevertheless, we will not substitute our
judgment for that of the jury. See Laster v. State, 275 S.W.3d 512, 518 (Tex.
Crim. App. 2009); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008 (2000). Reviewing all
the evidence in a neutral light, we hold the evidence introduced to support the
verdict is not so weak that the jury’s verdict seems clearly wrong or manifestly
unjust. See Watson, 204 S.W.3d at 414. We overrule Appellant’s fourth
point.
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V. Conclusion
Having overruled all four of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL : GARDNER, LIVINGSTON, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 7, 2009
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