in the Matter of the Marriage of Michael A. Ott and Arlene J. Ott ( 2002 )

NO. 07-02-0176-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 14, 2002 ______________________________

MICHAEL A. OTT

Appellant

v.

ARLENE J. OTT

Appellee

FROM THE 247^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 00-24499; HON. BONNIE G. HELLUMS, PRESIDING

______________________________

ORDER ON APPELLANT'S MOTION TO DISMISS APPEAL

Before BOYD, C.J., QUINN and REAVIS, JJ.

Michael A. Ott, appellant, has moved to dismiss his appeal contending that he "no longer wishes to continue with his appeal." Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellant's personal request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Per Curiam

Do not publish.

received and its contents were examined by Brandon Conrad, a DPS chemist. Tests revealed the substance in the package to be 131.76 grams of cocaine. After testing, the package and its contents were placed in a DPS storage facility until the time of trial when they were released to Gonzalez.

At trial, Gonzalez and Conrad testified regarding the package and its contents. When Exhibit 1 was offered, by his general objection that a chain of custody had not been established, appellant objected to the admission of the evidence. Appellant's objection was overruled and the evidence was admitted. We review the trial court's decision to admit evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Cr.App. 1996). The trial court does not abuse its discretion when the evidence admitted is based on a belief that a reasonable juror could find the evidence has been authenticated or identified. Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Cr.App. 1996). The requirement of authentication or identification to render an exhibit admissible is satisfied if the evidence is sufficient to support a finding that the matter is what its proponent claims. Tex. R. Evid. 901(a). Thus, the State is only required to make a showing to the trial court that the matter in question is what it purports to be. Garner v. State, 939 S.W.2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref'd). Without evidence of tampering, questions regarding chain of custody go to the weight of the evidence and not its admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Cr.App. 1997).

In the present case, Gonzalez testified he placed the package he obtained from appellant in an envelope identified by the time, date, and his initials. The envelope was then sealed and hand-delivered to Conrad at the DPS crime lab in Amarillo. Conrad testified he received the envelope by marking it with his initials and assigning it a unique laboratory number. He then placed the envelope in the DPS storage vault where it remained until it was removed for testing. At the conclusion of the tests, Conrad was unable to return the substance to its original packaging and placed the substance in a plastic bag. This bag and the original packaging were placed back in the original envelope and returned to the storage vault where they remained until appellant's trial. On the day of trial, Conrad released the envelope to Gonzalez.

At trial, Gonzalez identified State's Exhibit 1 as the envelope he received from the DPS crime lab and testified that it contained the original black packaging he obtained from appellant. Conrad identified State's Exhibit 1 as the package he received in the laboratory and testified that it did not appear to have been tampered with in any way since it had been released back to Gonzalez. He further testified that when evidence is received from a law enforcement officer for testing, it is stored in a secure location until the time for analysis. Once it is analyzed, the evidence is returned to that secure location until it is returned to the officer. Here, as in Bird v. State, 692 S.W.2d 65,70 (Tex. Cr. App. 1985), there being no evidence of tempering presented, the objection simply went to the weight of the evidence rather than its admissibility.

Based on the above, we conclude the trial court did not abuse its discretion in finding the evidence to be that which the State asserted it to be. Appellant's issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.