Burleson Jr., D'Waylon v. State

Affirmed and Memorandum Opinion filed June 9, 2005

Affirmed and Memorandum Opinion filed June 9, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00529-CR

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D’WAYLON BURLESON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Cause No. 1213643

M E M O R A N D U M   O P I N I O N

Appellant, D’Waylon Burleson, appeals from his conviction for possession of marijuana in a useable quantity of less than two ounces.  See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003).  A jury found him guilty, and the trial court assessed punishment at 45 days’ confinement.  On appeal, he contends that (1) the trial court erred in admitting the contraband into evidence, and (2) the evidence is insufficient to support the conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  Tex. R. App. P. 47.1.  We affirm.

Background

On January 11, 2004, appellant was detained after he was involved in a minor traffic accident.  Officer Jeffrey Holmes of the Houston Police Department (“HPD”) testified that he was called to the scene of the accident.  When he arrived, he saw appellant, who had been driving one of the vehicles involved in the accident, sitting in the back of a patrol car. Holmes moved appellant to Holmes’s patrol car and interviewed him.  Holmes said that appellant staggered and swayed and that his speech was slurred. He detained appellant on suspicion of being intoxicated and for failing to carry his driver’s license.  Holmes then inventoried the contents of the vehicle appellant had been driving because it was going to be towed.  During the inventory, Holmes found what he described as a “marijuana cigar” in the vehicle’s console.  He said that based on his thirteen years of experience as a police officer he was familiar with the look and smell of marijuana, and the item found in the vehicle looked and smelled like marijuana.  Holmes weighed the item and found that it weighed .78 grams, which he stated was a useable quantity.  Holmes placed the cigar in a brown evidence bag and placed it in the “narcotics drop box” for testing by the HPD crime lab.

Officer John Nickel, a drug recognition expert for the HPD, testified that on January 11, he performed a drug recognition evaluation on appellant.  He determined that appellant had a high level of impairment and was under the influence of cannabis, a drug category that includes marijuana.

Kristen Dyke, a drug chemist with the HPD crime lab, testified that she received a partially burned cigar in a plastic baggy that was inside a HPD evidence envelope or bag.  Dyke performed an analysis of the cigar, and it tested positive for marijuana.  She weighed the cigar, and it weighed .4 grams or .01 ounces.

The evidence bag had the appellant’s name written on it along with the date on which he was arrested and the location at which he was first detained.  There was no specific evidence regarding who placed the cigar inside the plastic baggy between the time Holmes dropped it at the crime lab and Dyke received it.

Chain of Custody

In his first issue, appellant contends that the trial court erred in admitting the contraband into evidence because of alleged problems with the chain of custody. However, a review of the record reveals that the only argument trial counsel made regarding the admission of this evidence was that it was obtained as the result of an illegal search and seizure. Accordingly, we hold that appellant failed to preserve the issue for appeal because his appellate argument does not comport with his trial objection.  See Tex. R. App. P. 33.1; Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003).

Furthermore, even if appellant had preserved his argument, we find that it is without merit.  Complaints regarding theoretical or speculative breaches in the chain of custody, without affirmative evidence of impropriety, go to the weight of the evidence rather than to its admissibility.  Caddell v. State, 123 S.W.3d 722, 727 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  Proof of the beginning and the end of the chain will support the admission of evidence. Id.  Appellant argues that the record provides affirmative evidence of impropriety in that (1) Officer Holmes stated that he initialed the evidence bag on the morning of the trial, and (2) chemist Dyke stated that she received the evidence in a plastic baggy while Holmes stated that he deposited the evidence in a brown evidence bag.  However, neither of these points provide affirmative evidence of impropriety.

In its brief, the State suggests that Holmes initialed the bag as a standard procedure for when evidence is retrieved for presentation in court.  Nothing in the record directly supports or refutes this logical interpretation.^[1]  Appellant offers no explanation as to how Holmes initialing of the bag on the morning of trial evidences impropriety.  The suggestion is that Holmes was undertaking some type of subterfuge regarding the evidence bag, but this is exactly the type of theoretical or speculative gap in the chain of custody that goes to the weight of the evidence and not its admissibility.  See Caddell, 123 S.W.3d at 727.

Regarding the plastic baggy, Holmes testified that he put the evidence in a brown evidence bag before placing it in the narcotics drop box, and Dyke testified that she received the evidence in a plastic baggy.  But contrary to appellant’s assertion, Dyke testified that the plastic baggy was contained within an evidence envelope or bag.  She stated that the bag had appellant’s name written on it along with the date on which he was arrested and the location at which he was first detained.  She further explained that evidence receiving personnel will seal evidence if it is not sealed when it is received.  The only missing information in the chain of custody is exactly who put the evidence in the baggy and then back into the evidence bag.  The State proved the beginning and the end of the chain of custody. This was sufficient for admissibility. See id.  Any theoretical or speculative gaps go to the weight and not the admissibility.  Id. Appellant’s first issue is overruled.

Sufficiency of the Evidence

In his second issue, appellant contends that the evidence is insufficient to sustain his conviction.^[2]  We utilize the normal standards of review in considering this sufficiency issue.  See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standards).

To prove possession of marijuana, the State must show by direct or circumstantial evidence that the accused exercised care, custody, or control over the substance and that he knew the object he possessed was contraband.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Evidence that affirmatively links the accused to the contraband is sufficient to prove that he possessed it knowingly.  Id. The link between the accused and the contraband does not have to be so strong that it excludes every other reasonable hypothesis except the guilt of the accused.  Id. at 748.  Courts have considered a number of factors in assessing the link between the accused and contraband narcotics, including whether the accused owned or was the driver of the vehicle where the contraband was found (if the contraband was found in a vehicle), whether the contraband was in plain sight or recovered from an enclosed space, whether the contraband was found in close proximity to the accused or was conveniently accessible to the accused, whether the physical condition of the accused indicated recent consumption of the contraband in question, and whether there was a strong residual odor of the contraband.  See, e.g., Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.—Corpus Christi 2002, no pet.).

Here, appellant argues only that (1) there is no evidence in the record to establish ownership of the vehicle, and (2) Officer Holmes testified that he did not detect a strong odor of marijuana from appellant’s person.  Regarding the first contention, there is no requirement that the accused be the owner of a vehicle where contraband was found in order to to link him to the contraband.  It has been held that a sufficient link can be established if the accused was the driver of the vehicle.  See, e.g., Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).  Holmes testified that appellant was the driver of the vehicle where the marijuana cigar was found.  He stated that he found the cigar in the vehicle’s console, which would have been readily accessible to the driver.  Further, there was no evidence that anyone else was in the car with appellant at the time of the accident.

Regarding appellant’s second contention, that Holmes did not detect an odor of marijuana, Holmes did testify that he smelled marijuana from the cigar itself, and Officer Nickel, an HPD drug recognition expert, testified that appellant had a high level of impairment and was under the influence of cannabis, a drug category that would include marijuana.  See De La Paz v. State, 901 S.W.2d 571, 584 (Tex. App.—El Paso 1995, pet. ref’d) (considering accused’s physical condition as suggesting affirmative link between accused and contraband).  Accordingly, we find that the evidence sufficiently demonstrated affirmative links between appellant and the marijuana cigar to support the conviction. See Brown, 911 S.W.2d at 747-48. Appellant makes no further argument regarding the sufficiency of the evidence.  We overrule his second issue.

We affirm the trial court’s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed June 9, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]  Dyke testified that it was standard procedure for the last person to handle evidence to place his or her initials on the evidence bag. This inferentially supports the conclusion that Holmes properly initialed the bag prior to trial.

^[2]  Although appellant states his second issue as a factual sufficiency challenge, he appears to argue that the evidence is legally insufficient regarding certain elements.  In the interest of justice, we shall review the evidence under both factual and legal sufficiency standards.