Appellant=s Motion for Rehearing Overruled, Memorandum Opinion of May 28, 2009 Withdrawn, Affirmed and Substitute Memorandum Opinion filed July 9, 2009.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-00940-CR
NO. 14-07-00941-CR
____________
KEITH ROCHELL WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1114082 & 1114083
S U B S T I T U T E M E M O R A N D U M O P I N I O N
Appellant=s motion for rehearing is overruled. We withdraw the memorandum opinion and vacate the judgment issued on May 28, 2009, and substitute this memorandum opinion and judgment in its place.
Keith Rochell Woods was arrested in 2007 for the illegal possession of certain prescription-drug tablets. Following a jury trial, he was convicted on two counts: (1) possession of at least 400 grams of alprazolam; and (2) possession of at least 400 grams of dihydrocodeinone with intent to deliver. He was then sentenced to seventy years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000 fine on each count, with the sentences to run concurrently. Woods appeals these convictions contending that (1) the evidence was legally and factually insufficient to prove beyond a reasonable doubt that he delivered the tablets, and (2) the evidence was legally and factually insufficient to prove beyond a reasonable doubt that the seized tablets contained at least 400 grams of either alprazolam or dihydrocodeinone. We affirm.
I
On April 25, 2007, Houston police officers John Huston and Bradley Craig were conducting surveillance of Houston-area pharmacies. A seven-year veteran of the narcotics division, Officer Huston knew that an increasing amount of the prescription drugs being sold illegally in the community were obtained by individual operators hiring groups of indigent or otherwise homeless people to falsely pose as legitimate patients requiring medication. After obtaining prescriptions, they would typically have the prescriptions filled at small, independent pharmacies and then deliver the tablets to the operators in exchange for cash.
On this occasion, Officer Craig was observing Midtown Pharmacy after receiving a tip about possible illegal narcotics activity. He saw three vehicles arrive at the pharmacy together. He watched as the occupants of all three vehiclesCincluding WoodsCcongregated briefly near their vehicles, before all of themCexcept WoodsCwent inside the pharmacy. Shortly thereafter, each of them emerged from the pharmacy carrying a small white bag that appeared to contain a filled prescription. They then got back in their vehicles and left the pharmacy. Officer Craig radioed for assistance and followed the vehicles to their next destination, another pharmacy located on Federal Road.[1]
Officer Huston took over the surveillance of the group as they approached the second pharmacy. He was joined by Officer M.T. McGivern who observed the group from her own vehicle. Both officers saw all three vehicles arrive at the Federal Road pharmacy. Officer McGivern described the people accompanying Woods as Adirty,@ Adisheveled,@ Anot well-kept,@ and likely homeless. Both officers observed that, after the group emerged from their vehicles, the individuals formed a line, and that Woods handed each of them cash and a small piece of paper. Each then went inside the pharmacy while Woods waited outside. Again, the officers saw each person emerge from the pharmacy with a small white paper bag that resembled a filled prescription. Each then took his bag to the rear of Woods=s car and placed it in his trunk. Based on her experience and her observations of this activity, Officer McGivern testified that Woods was clearly Arunning@ the operation.
After everyone had returned from the pharmacy and placed their white bags into Woods=s trunk, they returned to their cars and left the pharmacy. The three vehicles each went in separate directions. Officers Huston and McGivern chose to follow Woods, who was traveling with several unidentified young women, and followed him to an Autozone store, also located on Federal Road. In the Autozone parking lot, the officers observed Woods meet with a man driving a Ford Explorer. This new individual, later identified as Harold Johnson, opened the back of his Explorer. Officer Huston observed Woods reach into the trunk of his car, remove three large, black, plastic trash bags and then hand them to Johnson. Johnson then placed the bags in the back of his Explorer. After this transfer, the two men left the Autozone parking lot in different directions. Units of the Houston Police Department assisting Officers Huston and Craig followed both Woods and Johnson.
Johnson was stopped and arrested by another officer for a traffic violation. While Johnson was being detained, one of the officers noticed a solitary pill lying on the passenger seat of the Explorer. When the police later conducted an inventory search of the Explorer, they recovered $11,000 in cash, and three large, black, plastic trash bags. Inside the three trash bags were prescription bags holding about 5,000 tablets. These tablets were later identified as alprazolam (sold under the name AXanax@) and dihydrocodeinone (sold under the name AVicodin@). Woods was also stopped and arrested, based on an outstanding warrant associated with his car.
A Houston Police Department chemist determined that the recovered tablets included about 2,600 grams of dihydrocodeinone and about 417 grams of alprazolam. At trial, Officer Huston testified that, based on his experience as a narcotics officer, the amount of tablets found in the Explorer indicated that they were intended for delivery rather than personal use.
Woods was later charged with two separate counts of possession of at least 400 grams of alprazolam, and possession of at least 400 grams of dihydrocodeinone with intent to deliver. Woods was tried before a jury and convicted. He was sentenced to seventy years= confinement in the Institutional Division of the Texas Department of Criminal Justice plus a $10,000 fine on each count, with the sentences to run concurrently. This timely appeal followed.
II
Woods contends that the evidence presented at trial was legally and factually insufficient to prove beyond a reasonable doubt two essential elements of the charged offenses: (1) that Woods delivered at least 400 grams of each type of drug to Harold Johnson, and (2) that the seized tablets contained at least 400 grams of aprazolam and at least 400 grams of dihydrocodeinone.
In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318B19 (1979)); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Wooten v. State, 267 S.W.3d 289, 294 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). The reviewing court must give deference to A>the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318B19). In reviewing the sufficiency of the evidence, we should look at A>events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.=@ Id. (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984); Wooten, 267 S.W.3d at 294. The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); Wooten, 267 S.W.3d at 294. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); Wooten, 267 S.W.3d at 294. Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997); Wooten, 267 S.W.3d at 294.
When reviewing a factual‑sufficiency challenge, we view all the evidence neutrally. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). We especially discuss and examine the specific evidence that the appellant contends undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Newby, 252 S.W.3d at 435. We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); see also Newby, 252 S.W.3d at 435. We may disagree with the jury=s conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Newby, 252 S.W.3d at 435.
A
In his first issue, Woods contends that the evidence was both legally and factually insufficient to prove beyond a reasonable doubt that at least 400 grams of each type of the seized tablets came from him. Specifically, Woods asserts that while it is undisputed that more than 5,000 tablets were recovered from Johnson=s Explorer, there was conflicting evidence as to what, if any, contact Woods may have had with the tablets sufficient to support his conviction.
1
A person commits an offense if he knowingly or intentionally possesses a material containing alprazolam without a valid prescription. See Tex. Health & Safety Code Ann. __ 481.117(a), 481.104(a)(2) (Vernon 2003). A person may also commit an offense if he knowingly or intentionally possesses with the intent to deliver a material containing dihydrocodeinone. See id. __ 481.114(a), 481.104(a)(4) (Vernon 2003). In each case, Apossession@ means the actual care, custody, control, or management of the controlled substance in question. Id. _ 481.002(38) (Vernon Supp. 2008); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).
Juries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Hooper, 214 S.W.3d at 14B15. In fact, circumstantial evidence alone can be sufficient to establish guilt. Id. at 15. In such cases, the sufficiency-of-the-evidence standard of review for circumstantial evidence is the same as in direct-evidence cases. Id. at 13. Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Id. at 15. But juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Id. In a sufficiency review, courts of appeals should 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. Id. at 16B17.
In an illegal-possession case, whether the evidence is direct or circumstantial, it must establish that the appellant=s connection with the contraband was more than fortuitous. Evans, 202 S.W.3d at 161. Moreover, when the accused is not in exclusive possession of the place where contraband is found, the State must show additional affirmative links between the accused and the contraband. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.CHouston [14th Dist.] 2005, no pet.). This Aaffirmative links@ rule protects an innocent bystander from conviction merely because of his fortuitous proximity to someone else=s drugs. Evans, 202 S.W.3d at 161B62. In deciding whether the evidence is sufficient to link the accused to the contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Cuong Quoc Ly v. State, 273 S.W.3d 778, 781 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d).
The following list of relevant factors may affirmatively link an accused to contraband: (1) the defendant=s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant=s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Cuong Quoc Ly, 273 S.W.3d at 781B82; Olivarez, 171 S.W.3d at 291. But these are simply some factors which may circumstantially establish the legal sufficiency of the evidence to prove a knowing Apossession.@ They should not amount to a litmus test. Evans, 202 S.W.3d at 162 n.12. We focus not on the number of linking factors present but, rather, the Alogical force@ they create to prove the crime was committed. Cuong Quoc Ly, 273 S.W.3d at 782.
In Valencia v. State, the defendant met another individual in a parking lot while the two were being observed by a DEA agent. 51 S.W.3d 418, 420B21 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d). The person the defendant met opened the hatchback of the defendant=s car and removed a black bag from the car. Id. at 421. Fifteen minutes later, this individual was stopped by the DEA; the black bag was no longer in the car, but a female passenger who had not been in the car previously was present. Id. The black bag later was found in an apartment leased by the female passenger; it contained more than eight kilograms of cocaine. Id. The defendant in Valencia was arrested later at a grocery store. Id. Just one day earlier, the defendant had picked up a black bag and a large sum of money from the individual he met while under observation. Id. at 421, 423. The evidence in Valencia was held to be legally and factually sufficient to support the jury's finding that the defendant was affirmatively linked to the cocaine. Id. at 423.
The circumstances here parallel those in Valencia. The cocaine in Valencia was found in a bag recently removed from the defendant=s car. See id. In this case, police officers found the contraband tablets inside three black, plastic trash bags seized just a short time after they had witnessed Woods deliver three black, plastic trash bags to Johnson in the Autozone parking lot. The tablets had been transported to Johnson in the trunk of Woods=s car. Therefore, the tablets were immediately accessible to Woods in the same manner that the cocaine was in Valencia. See id. Further, as the tablets were transported in Woods=s car, they were under Woods=s control before being delivered to Johnson. Also, in Valencia, the police had observed the defendant pick up the black bag and a significant sum of money the day before the transaction took place. In this case, the police observed multiple individuals deposit prescription bags into the trunk of Woods=s car. But when Woods=s car was searched after his arrest, and after the exchange with Johnson, no tablets were found. Finally, in both cases, the large quantity of contraband makes it even more unlikely that their presence was accidental.
Other links in this case create an even stronger association than that found in Valencia. In that case, the police actually lost visual contact with the defendant as they followed him after the transaction. Here, police officers followed Woods to the Autozone parking lot, maintaining constant surveillance of him throughout the journey. And after the exchange with Johnson, police again maintained constant surveillance of both cars before arresting both men and searching their vehicles. Additionally, in this case the police observed Woods personally directing several persons to enter a pharmacy and then deposit their filled prescriptions into the trunk of his car.
Woods asserts in his motion for rehearing that none of the prescriptions found in the bags recovered from Johnson=s Explorer correspond to AMAPPS Pharmacy,@ the one location where officers Huston and McGivern testified they saw prescription bags placed directly into the trunk of Woods=s car. Because none of the bags Acame from Mapp Pharmacy,@ Woods contends, the recovered pills could not be traced back to the pharmacies where Woods was observed. At trial, the State introduced into evidence Exhibit 24, a collection of prescription receipts recovered from the three black bags found in Johnson=s Explorer. Specifically, Exhibit 24 contained twenty-two receipts from Midtown Pharmacy, eight receipts from Mercury Pharmacy, and nineteen receipts from AMaswoswe=s Alt Pharmacy Svcs.@[2] As stated above, during the trial it was primarily counsel for the State and Woods that referred to the second-observed pharmacy as AMAPPS Pharmacy.@ The police officers, on the other hand, testified to observing Woods at the AMidtown Pharmacy@ and a second pharmacy, which they generally identified by its location Aon Federal Road.@ The receipts from the Maswoswe pharmacy state its address as A911 Federal Road.@ Further, we observe that the initials for the Maswoswe pharmacy are M.A.P.S. Consequently, it was not a stretch of logic for the jury to infer that, in fact, the pharmacy on Federal RoadCor the AMAPPS Pharmacy@Cwas the pharmacy referred to on its receipts as AMaswoswe Alt Pharmacy Svcs.@ Indeed, nineteen receipts from AMaswoswe Alt Pharmacy Svcs@ at 911 Federal Road were recovered from Johnson=s Explorer and admitted into evidence.[3]
The evidence that Woods actively participated in both the acquisition and exchange of the tablets was sufficient to demonstrate that his connection with the contraband was more than fortuitous. See Evans, 202 S.W.3d at 161B62; Cuong Quoc Ly, 273 S.W.3d at 781B82; Valencia, 51 S.W.3d at 420B23; see also Davis v. State, 923 S.W.2d 781, 786B87 (Tex. App.CBeaumont 1996), rev=d on other grounds, 947 S.W.2d 240 (Tex. Crim. App. 1997) (despite the fact that car was not owned by defendant, the fact that he had driven car to New York and back was legally sufficient to affirmatively link defendant to marijuana found in trunk). Viewing the evidence here in the light most favorable to the State, we believe that a rational jury could have found beyond a reasonable doubt that the appellant was affirmatively linked to the tablets found in Johnson=s Explorer. See Hooper, 214 S.W.3d at 13; Wooten, 267 S.W.3d at 294. Therefore, the evidence of Woods=s possession was legally sufficient to support the jury=s verdict beyond a reasonable doubt. See McDuff, 939 S.W.2d at 614; Wooten, 267 S.W.3d at 294.
2
Woods challenges the factual sufficiency of the State=s evidence as to his connection to the tablets in several ways. First, Woods contends that there was conflicting evidence concerning exactly how many trash bags were delivered to Johnson in the Autozone parking lot. Further, Woods argues that because more than three black, plastic trash bags were discovered in the back of Johnson=s Explorer, it was impossible for the witnesses to know that Johnson received the bags containing the tablets from Woods, as opposed to already possessing them before their meeting. Finally, Woods asserts that no witness could testify as to exactly what was in the bags that Woods handed to Johnson. As a result, Woods argues, the jury was required to speculate as to both what was in the bags that appellant delivered, and that those were the exact bags later discovered with the tablets inside Johnson=s Explorer.
On appeal, and again in his motion for rehearing, Woods contends that the State failed to prove beyond a reasonable doubt that Woods delivered three bags to Johnson, and therefore failed to establish an affirmative link between Woods and the pills recovered from Johnson=s Explorer. At trial, Officer Huston testified on direct examination that he saw Woods take AthreeCappeared to be three large plastic garbage type bags,@ which he then handed to another man, later identified as Johnson. On cross-examination, Huston stated that there were Aseveral black trash bags,@ and that they were Abundled together.@ When asked by defense counsel if it was Atwo to three black trash bags,@ Huston replied, AYes.@ Woods asserts that this statement by Huston amounted to a Aretraction@ of his earlier testimony. But Huston never stated that his earlier testimony was inaccurate. In fact, Huston=s response to Wood=s defense counsel was not inconsistent with his prior testimony that Woods= had deliver to Johnson what Aappeared to be three@ bags. Huston never stated that only two bags were exchanged. We presume the jury evaluated this testimony in reaching its verdict. We should not intrude upon the jury=s role as the sole judge of the weight and credibility given to the evidence and any witness=s testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see also Gant v. State, 278 S.W.3d 836, 839 (Tex. App.CHouston [14th Dist.] 2009, no pet.) (AWe give deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony.@). A>A jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State.=@ Kromah v. State, 283 S.W.3d 47, 50 (Tex. App.CHouston [14th Dist.] 2009, pet. ref=d) (quoting Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d)).
There was no testimony to contradict the evidence that filled prescriptions were deposited into the trunk of Woods=s car while at the Federal Road pharmacy. It was also undisputed that, although Houston police officers rotated their surveillance of Woods while traveling from the Federal Road pharmacy to Autozone,[4] at no time was Woods unobserved by officers participating in the investigation. Finally, it was undisputed that no prescriptions were recovered from Woods=s car when he was ultimately arrested, again after uninterrupted surveillance. At trial, Woods=s trial counsel questioned Officer Huston as to why the female passengers in Woods=s car were never searched, and why the trash bags were never fingerprinted. But no one saw the passengers ever remove anything from Woods=s trunk. And there was no testimony that anyone other than Woods or Johnson ever handled the trash bags. Therefore, it was reasonable for the jury to infer that the prescriptions deposited into Woods=s trunk at the Federal Road pharmacy must have been removed when Woods handed the trash bags to Johnson in the Autozone parking lot, as this was the only time any of the witnesses described seeing anything removed from Woods=s trunk.
At trial, and again on appeal, Woods contends that there were Aquite a number of black plastic trash bags@ in Johnson=s Explorer, making it impossible for the jury to know which bags came from Woods. But this argument confuses Woods=s assertions with the actual testimony of the witnesses. At trial, Officer Huston testified that there were three black trash bags in the back of Johnson=s Explorer. When pressed by Woods=s trial counsel on cross-examination, Officer Huston stated that, although there was other property in the back of the Explorer, there were only three black trash bags. When recalled and questioned again by Woods=s trial counsel a day later, Officer Huston insisted still that there were only three black trash bags in the vehicle. Officer Nash Patel also testified to seeing only three black trash bags. When asked by Woods=s trial counsel if he could see any other black trash bags in a photograph of Johnson=s Explorer displayed during cross-examination, Officer Patel stated, AI see three for sure. I can=t tell what=s in the back. I don=t know if that=s trash bags or not.@ Officer McGivern first testified that she saw two black trash bags in the Explorer. When shown the photograph of Johnson=s vehicle Officer McGivern stated that she saw AthreeCmaybe four trash bags. Possibly more.@ As the jury is free to believe or disbelieve all or part of a witness=s testimony, the jury in this case could reasonably find, based on all of the witnesses= testimony, that there were only three black trash bags found in the back of Johnson=s Explorer.
Woods=s second basis for attacking the State=s evidence is through Johnson=s testimony. Johnson testified that the appellant occasionally worked for him selling clothes, and that he met Woods in the Autozone parking lot on the day in question to pick up some coat hangers. According to Johnson, when Woods brought him hangers, he usually brought them in black trash bags. Johnson repeatedly denied knowing anything about the seized tablets, or how they got into his Explorer. But during cross-examination, Johnson made the following admission:
I don=t know what [Woods] was doing. I just met him to get the pillsCthe bag you saying there were pills in there, what was put in my car, I don=t know.
The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Wooten, 267 S.W.3d at 294. Therefore the jury was free to believe either the police officers or Johnson regarding the events on the day in question.
A neutral review of the evidence in this case supports Woods=s Aaffirmative links@ to the tablets seized from Johnson=s Explorer. We cannot say that the evidence in this case is so weak that the verdict is clearly wrong and manifestly unjust, or is against the great weight and preponderance of the evidence. Therefore, we find the evidence to be factually sufficient to support a finding of guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d at 414B15; Newby, 252 S.W.3d at 436. We overrule Woods=s first issue.
B
In his second issue, Woods contends that the evidence was both legally and factually insufficient to prove beyond a reasonable doubt that the recovered tablets were, in fact, the substances charged in the indictment. Specifically, Woods argues that the prosecution=s expert witness, chemist Ahtavea Barker of the Houston Police Crime Lab, failed to explicitly testify that she had performed a chemical test on the seized tablets. Further, Woods argues that Ms. Barker used an ineffectively small sample size in her analysis, preventing her from conclusively identifying the tablets. In response, the State asserts that Woods=s argument misinterprets Ms. Barker=s testimony, as well as misstates the applicable legal standards.
1
As a preliminary matter, it bears noting that Woods does not challenge either Ms. Barker=s qualifications as an expert, or the scientific basis of the applied analysis. Rather, Woods has restricted his appeal to the adequacy with which Barker identified the substances in question.
On appeal, Woods cites both Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977), and Steele v. State, 681 S.W.2d 129 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d), as authority for his assertion that A[p]roof beyond a reasonable doubt normally requires a chemical analysis to prove that the substances seized are, in fact, the substances charged in the indictment.@ But both cases are factually dissimilar from the present case in significant ways. In Curtis, the Court of Criminal Appeals held that testimony from an Aexperienced narcotics officer@ visually identifying a Awhite or brown powdered substance@ as heroin was insufficient to prove the identity of the charged substance by even a preponderance of the evidence.[5] Curtis, 548 S.W.2d at 59. Likewise, in Steele, this court reversed a conviction in which the only evidence specifically identifying the substance in question was a statement by an investigating officer that the defendant had referred to the Awhite powder@ as cocaine. Steele, 681 S.W.2d at 131. The Steele court stated that although a police laboratory chemist testified at trial, the State never elicited any testimony from her to establish that the substance was, in fact, cocaine. Id. Neither of these cases stand for the proposition that chemical testing is absolutely necessary to prove guilt beyond a reasonable doubt. Rather, the Curtis court inferred the opposite by restating the long-held rule that an experienced officer may be qualified to testify that a certain green leafy plant substance is marijuana, based solely on a visual inspection, even if a visual inspection is insufficient to prove that a bag of powder is actually heroin. Curtis, 548 S.W.2d at 59; accord Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986). Moreover, Woods himself states in his brief that, Aa comparison of the tablets seized in this case with descriptions or photographs from some standard reference such as the Physician=s Desk Reference might have provided at least some evidence supporting the verdict.@ See Manning v. State, 637 S.W.2d 941, 943 (Tex. Crim. App. 1982).
At trial, Barker described the process she generally applies in controlled-substance cases, as well as the specific actions she took with the tablets seized from Johnson=s Explorer. She described how, in Atablet cases,@ she looks at every single tablet to confirm the conformity of shape, color, logo, and general quality. This information is then compared with pharmaceutical product information in order to identify the substance of the tablets. In this case, Barker testified that she identified all of the seized tablets as belonging to one of three categories: either one type of dihydrocodeinone or one of two types of alprazolam, each of these tablets being characterized by different colors, shapes and manufacturer logos. Such a thorough examination and comparative analysis is closer to the standard Woods suggests, see Manning, 637 S.W.2d at 943, rather than the speculative assessments dismissed by Curtis and Steele.
But even if we were to accept that chemical testing were required to support the conviction in this case, Ms. Barker also described her analysis as including certain Aconfirmatory tests.@ Specifically, Barker referred to performing a gas-chromatograph-mass-spectrometry test, an instrumental test in which substances are reduced into their separate components and are then identified according to their spectral fragmentation pattern.
Woods contends that Barker never explicitly stated that this gas-chromatograph-mass-spectrometry test was ever performed. However, the following exchange suggests otherwise:
PROSECUTOR: In State=s Exhibit 28 [the unique lab report], did you do an analysis of all the tablets there in that big container?
BARKER: Yes.
PROSECUTOR: And what were those two types?
BARKER: The first was hydrocodoneCor dihydrocodeinone. It=s generic Vicodin. The other one is alprazolam, known as Xanax.
PROSECUTOR: In both of those cases, did you perform an initial check of the pills to determine what type they were?
BARKER: Yes. I did a preliminary examination for each of them based on their logos and their shape and color.
PROSECUTOR: Okay. And after you did that, did you perform a specific analysis, like you talked about to confirm thatCwhat you had found?
BARKER: Yes. On each type as well as each logo.
In her testimony, Barker states that she performed both a preliminary visual inspection of the tabletsCobserving their size, shape, and colorCand then performed a Aspecific analysis.@ This statement relates to her prior testimony in which, when asked if she conducted a more Ain-depth analysis,@ she described the gas-chromatograph-mass-spectrometry test as Aa specific instrumental test.@ Woods suggests that we require testifying experts to Aunambiguously swear that >I performed the mass spectrometry test,= >I followed the procedures designed to reach an accurate result,= and >I tested these particular tablets and obtained a positive result.=@ However, he offers no authority for such a requirement. We decline Woods=s invitation to require the use of such Amagic words@ to prove the identity of the substance in question.
Woods also challenges the legitimacy of the sample sizes Barker used in her analysis of the seized tablets. At trial, Barker testified that she used one tablet from each type of the tablets seizedCone type of dihydrocodeinone and two types of alprazolam. A conviction for possession of a controlled substance may be based on the testing of a representative amount of a homogenous substance found in a container in the possession of a defendant. Avington v. State, No. 14-08-00122-CR, 2008 WL 5086003, at *3 (Tex. App.CHouston [14th Dist.] Nov. 25, 2008, no pet.) (mem. op., not designated for publication) (citing Melton v. State, 120 S.W.3d 339, 342B44 (Tex. Crim. App. 2003)). Woods argues that this small sample size was inadequate to assess the identity of over 5,000 tablets. But the manner of testing a substance by random sampling goes only to the weight the jury may give to the tested substances in determining that the untested substance is the same as the tested substance. Zone v. State, 118 S.W.3d 776, 777 (Tex. Crim. App. 2003). As discussed earlier, Barker had already testified as to her visual examination of the tablets, dividing them into three groups based on their conformity of color, shape, and logo. Barker had also testified about being able to recognize the difference between manufactured tablets, and illicit or illegally made ones. According to her testimony, there were only three types of tablets in the total seizure and she sampled each type.
The jury was free to judge Barker=s credibility as well as the strength of the evidence. See Fuentes, 991 S.W.2d at 271; Wooten, 267 S.W.3d at 294. Based on this evidence, we cannot say that the verdict was irrational or unsupported by proof beyond a reasonable doubt. Therefore, we must hold that Barker=s testimony was legally sufficient to support the verdict beyond a reasonable doubt. Matson, 819 S.W.2d at 846; Wooten, 267 S.W.3d at 294.
2
Appellant did not present any conflicting evidence or attempt to test the substances himself to establish that the recovered tablets were not either alprazolam or dihydrocodeinone. See Jones v. State, No. 01-06-01159-CR, 2008 WL 525696, at *6 (Tex. App.CHouston [1st Dist.] Feb. 28, 2008, pet. ref=d) (mem. op., not designated for publication) (citing Gabriel v. State, 900 S.W.2d 721, 722 (Tex. Crim. App. 1995) (holding that evidence was sufficient when the State tested only five of 54 bags containing cocaine and noting that Aappellant could have conducted independent chemical tests on all fifty‑four [bags] to show they did not contain the same substance@)). Therefore, the evidence, when viewed in a neutral light, shows that the jury=s verdict neither was against the great weight and preponderance of the evidence nor seems clearly wrong or manifestly unjust. Watson, 204 S.W.3d at 414B15. We conclude that the State presented factually sufficient evidence that appellant possessed more than 400 grams of both alprazolam and dihydrocodeinone.
Woods=s second issue is overruled.
* * *
Having overruled both of Woods=s issues, we affirm the trial court=s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] At trial, counsel for both the State and Woods referred to this second pharmacy interchangeably as either the AFederal Road pharmacy@ or the AMAPPS Pharmacy.@ But the police officers involved in the investigation and arrest of Woods generally referred to this second location by its geographic location, Aon Federal Road.@ On one occasion, Officer Huston even went so far as to confirm that a reference by defense counsel to the AMAPPS Pharmacy@ was, in fact, the pharmacy located Aon Federal Road.@
[2] It bears noting that, upon examination of these receipts, all of the prescriptions were filled on April 25, 2007; every individual received a prescription of both alprazolam and dihydrocodeinone; all of the prescriptions were written by the same physician; and almost all of the individuals received identical prescriptions from two different pharmacies.
[3] The trial record does not indicate that trial counsel for the State or defense, or any testifying witness, ever demonstrated the proper spelling of AMAPPS Pharmacy.@ Consequently, it is possible that the court reporter simply erred in using two P=s in spelling AMAPPS.@
[4] Several officers testified that, when traveling between destinations, they utilized a following technique wherein one officer would follow the suspect for some distance before passing the suspect=s vehicle off to another officer. The purpose of this technique is to avoid detection by the suspect being followed. Consequently, multiple officers were involved in following the suspect from one location to another, resulting in continuous, yet undetected, surveillance.
[5] In Curtis, the prosecution also relied upon unobjected-to hearsay statements by the Aexperienced narcotics officer@ that a DEA lab chemist had personally told him that the substance in question was heroin. See Curtis, 548 S.W.2d at 59. The Court of Criminal Appeals also rejected this testimony as having Ano probative value.@ Id.