Dena Darlene Glasscock v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00360-CR
DENA DARLENE GLASSCOCK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Dena Darlene Glasscock of possession of
methamphetamine under one gram and assessed her punishment at twenty-four
months’ confinement and a $2500 fine. The trial court sentenced her
accordingly. Appellant brings two points on appeal, challenging the sufficiency of
the evidence to support the verdict and the admission of evidence regarding the
usability of trace amounts of methamphetamine. Because the evidence is
1
See Tex. R. App. P. 47.4.
sufficient to support the jury’s verdict and because the trial court committed no
reversible error, we affirm the trial court’s judgment.
Background Facts
On October 5, 2010, Granbury Police Officer William Duckett stopped
Appellant for speeding. Appellant, who was the sole occupant of the vehicle, had
an invalid driver’s license, and a warrant had been issued for her arrest. Duckett
obtained Appellant’s consent to search the vehicle and found a backpack behind
the driver’s seat. The backpack held a propane torch lighter, a spoon, a pick,
razor blades, and a clear baggie containing a ―clear rock substance.‖
After conducting field tests on the contents of the baggie, Duckett
concluded that the substance in the baggie was methamphetamine. Duckett
arrested Appellant but allowed her to make arrangements to have a friend
retrieve her vehicle in lieu of its being towed. Appellant asked Duckett to remove
the ―obvious stuff‖ from the vehicle before her friend arrived. Duckett interpreted
her comment as a reference to the ―drug paraphernalia‖ in the backpack. In a
later lab test, the residue in the clear baggie tested positive for
methamphetamine, and Appellant was indicted for possession of a controlled
substance under one gram.
A two-day trial began on July 25, 2011. Duckett testified that when he
conducted the field test on the contents of the baggie, the test returned a weak
result for methamphetamine. He stated that he then retested the contents and
received a stronger result for methamphetamine. Duckett also testified that he
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placed the evidence into evidence bags, transported the evidence to the police
department, and placed the evidence in the evidence locker for the evidence
custodian to retrieve.
On cross-examination, however, Duckett stated that he could not identify
the substance in the baggie based on his initial field test. He also admitted that
he gave the baggie to Chris Weston, a backup officer who arrived at the scene to
assist Duckett, and that it was Weston who transported the baggie to the police
department and conducted the second test. After conducting the test, Weston
contacted Duckett and told him the result. Duckett later went to the police
department, retrieved the evidence from Weston, sealed it, and then deposited it
into the evidence locker.
The State also called William Chandley as an expert witness. Chandley
testified that he had a degree in chemistry and had worked for the Texas
Department of Public Safety as a forensic chemist for over twenty years.
Chandley testified that he retrieved the evidence submitted by Duckett from the
evidence vault, tested the contents of the baggie, and found a trace amount of
methamphetamine. During cross-examination, Appellant’s trial counsel asked
Chandley whether a trace amount of methamphetamine was usable. Chandley
responded that it was. On redirect, the State asked Chandley to explain how a
trace amount of methamphetamine was usable. Chandley’s response and
Appellant’s objections were as follows:
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[CHANDLEY]: We get an awful lot of this type of evidence
that’s trace in bags that—that are less than .01 grams. People
collect these bags until they get several. In talking to confidential
informants, the police officers—
[DEFENSE COUNSEL]: Judge, I’m going to object to
hearsay.
THE COURT: Sustained.
[STATE]: Without saying what somebody said, necessarily,
what’s your understanding of how a drug user uses a trace amount
of methamphetamine[?]
[DEFENSE COUNSEL]: Judge, I’m going to object that
he doesn’t have personal knowledge, because he just said that he’s
gotten this information from—thirdhand from officers that have talked
to other people.
THE COURT: Overruled.
[CHANDLEY]: Water is added to the bags, and that—that
solution is passed down through three or four bags, and then it’s
drawn up into a syringe, and then it’s injected. They’re not going to
throw the bags away if there’s a trace amount of methamphetamine
or cocaine in the bags.
On recross examination, Appellant’s counsel asked Chandley whether
someone would have to have several bags with trace amounts to have a usable
amount. Chandley testified that a trace amount from one bag was usable,
depending on ―how addicted you are.‖ The State called no additional witnesses.
Sufficiency of the Evidence
Appellant phrases her first point as a factual sufficiency complaint but
acknowledges that there is no longer a factual sufficiency review in Texas
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criminal law.2 We therefore address Appellant’s first point as a sufficiency
complaint under the Jackson v. Virginia standard.3 In reviewing the sufficiency of
the evidence to support a conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.4
The health and safety code provides that it is an offense to possess
methamphetamine.5 Unlike section 481.121, which requires a person to possess
a usable amount of marijuana in order to commit an offense,6 section 481.115
does not require that the person possess a usable amount of methamphetamine
in order to commit an offense; it appears to require only that the person possess
some amount of methamphetamine.7
2
See Brooks v. State, 323 S.W.3d 893, 905–06, 911 (Tex. Crim. App.
2010).
3
See id. at 911; Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979).
4
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
5
Tex. Health & Safety Code Ann. §§ 481.102(6) (providing that
methamphetamine is a penalty group 1 substance), .115(a), (b) (providing that
unauthorized possession of a penalty group 1 substance of less than a gram is a
state jail felony) (West 2010).
6
Id. § 481.121(a).
7
Id. § 481.115(a), (b).
5
Appellant argues that Duckett’s contradictory testimony about who
performed the second field test and who took the evidence to the station
―seriously calls into question the chain of custody of the evidence and the
reliability of such evidence. A broken . . . chain of custody coupled with hearsay
testimony about a second field test leaves far more than a reasonable doubt
concerning the guilt of Appellant.‖ But the Texas Court of Criminal Appeals has
stated that ―[a]bsent evidence of tampering, issues regarding the chain of
custody bear on the weight, rather than on the admissibility, of evidence.‖ 8 And
the jury as the trier of fact determines the credibility of the witnesses and the
evidence and the weight to be given to each witness and to each piece of
evidence.9 Finally, in reviewing the sufficiency of the evidence, an appellate
court considers all the evidence, even improperly admitted evidence.10
Duckett testified to two separate tests of the residue in the baggie. Both
tests revealed the presence of methamphetamine.
Appellant was alone when she was pulled over by Duckett. The baggie
containing the methamphetamine residue was found in her vehicle. Duckett
testified that he had tested the residue and that the result came back a weak
8
Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010), cert. denied,
132 S. Ct. 122 (2011).
9
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
10
Clayton, 235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489–90
(Tex. Crim. App. 2004).
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positive for methamphetamine. Applying the appropriate standard of review, we
hold that the evidence is sufficient to support the jury’s verdict. We overrule
Appellant’s first point.
Admissibility of Testimony about Usability of Trace Amounts of Drug
In her second point, Appellant argues that the trial court reversibly erred by
allowing Chandley to testify about how drug users could potentially use trace
amounts of methamphetamine because the testimony was outside his personal
knowledge and expertise. At trial, Appellant objected that the testimony was
hearsay. Appellant does not argue here, and did not argue below, that the trial
court’s admitting the hearsay testimony violated any of her constitutional rights.
Accordingly, if we were to assume that the trial court erred by admitting the
testimony, we would nonetheless disregard the error because it would not affect
any substantial right of Appellant,11 given that whether she possessed a usable
quantity of methamphetamine was irrelevant because the law does not require
that the amount of methamphetamine possessed be a usable amount to
constitute an offense.12 We therefore overrule Appellant’s second point.
11
See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort
Worth 1998, pet. ref’d).
12
See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (b); see
also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
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Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 29, 2012
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