COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROLAND CARRANZA, )
) No. 08-02-00169-CR
Appellant, )
) Appeal from the
v. )
) 292nd District Court
THE STATE OF TEXAS, )
) of Dallas County, Texas
Appellee. )
) (TC# F-0125196-HV)
)
O P I N I O N
This is an appeal of a jury conviction for possession of cocaine, more than four grams and less than 200 grams, enhanced. The Appellant was sentenced by the trial court to 45 years= imprisonment.
The first two issues are that the evidence is legally and factually insufficient, and the third issue is that the trial court erred in failing to instruct the jury on a lesser included offense of possession of cocaine of less than one gram.
The only fact germane to our review is the testimony of Heather Lynch, a criminalist with the Texas Department of Public Safety, who tested the cocaine found on the Appellant. She testified that the net weight of the cocaine was seven grams and her report, which stated the same, was also introduced into evidence without an objection. The Appellant=s legal and factual sufficiency argument is based on her response to a question that there was less then a gram of cocaine in the sample that was tested.
To determine legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993). On appeal, this Court does not reevaluate the weight and credibility of the evidence, rather we consider only whether the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993).
To determine factual sufficiency, we view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove that fact. Id. The appellate court may find either that the State=s proof of guilt was so obviously weak as to undermine confidence in the jury=s determination, or that the finding of guilt was against the great weight and preponderance of the evidence. Id. at 11.
We agree with the State that the Appellant=s argument is based upon a statement taken out of context. The chemist=s response that the testing Asample@ taken from the seized bag of cocaine could have contained less than one gram of pure cocaine was not applicable to the entire exhibit. She testified that the cocaine seized weighed seven grams and that was the amount stated in the report admitted into evidence. Moreover, the State only has to prove that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the minimum weight alleged in the charge offense. See Isassi v. State, 91 S.W.3d 807, 810 (Tex.App.--El Paso 2002, pet.ref=d). Issues One and Two are overruled.
Issue Three is wholly constructed on the same foundation as Issues One and Two, and since there is no foundation, it must likewise fail.
A charge on a lesser‑included offense must be given if: (1) the lesser‑included offense is included within the proof necessary to establish the charged offense; and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex.Crim.App. 1993); see also, Tex.Code Crim.Proc.Ann. art. 37.09 (Vernon 1981).
The State agrees that if there was some evidence that the amount of cocaine here was less than four grams, then the first prong would be met. However, there is no evidence in the record before us that the Appellant possessed less than four grams of cocaine. Issue Three is overruled.
We affirm the trial court=s judgment.
July 17, 2003
DAVID WELLINGTON CHEW, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)