Derrick Lee Thomas v. State

Opinion issued August 27, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00332-CR
———————————
DERRICK LEE THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1386629

MEMORANDUM OPINION

A jury found appellant, Derrick Lee Thomas, guilty of the felony offense of

possession of a controlled substance, namely cocaine, weighing less than one
gram. 1 After appellant pleaded true to the allegations in two enhancement

paragraphs that he had twice been previously convicted of felony offenses, the trial

court assessed his punishment at confinement for five years. In four issues,

appellant contends that the evidence is legally insufficient to support his conviction

and the trial court erred in denying his motion to suppress evidence, admitting into

evidence certain exhibits, and giving “the jury an improper, misleading, and

confusing instruction which lessened the State’s burden of proof.”

We modify the trial court’s judgment and affirm as modified.

Background

Houston Police Department (“HPD”) Officer M. Parker testified that on

May 6, 2013, while patrolling the north side of Houston, he saw a car failing to

signal as it made a left turn. He initiated a traffic stop of the car, parked his patrol

car behind the stopped car, and approached the driver’s side of the car. Looking

into the car with his flashlight, Parker noted that it contained two occupants,

appellant and Ed Galloway. He then asked appellant, who was the driver, for his

driver’s license.

While speaking with appellant, Officer Parker noticed that he appeared to be

“very nervous” and his hands were “shaking.” Parker also saw that appellant’s

right hand was “cuffed,” i.e., “[t]he last two fingers [on his right hand] were curled
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2014),
§§ 481.102(3)(D), 481.115(a), (b) (Vernon 2010).

2
up as if he was holding onto something or concealing something.” Based on his

previous experience with “people conceal[ing] narcotics,” Parker suspected that

appellant “was concealing” a “type of narcotic” “in his right hand.”

Officer Parker further testified that after he requested appellant’s driver’s

license, appellant “leaned forward to retrieve his wallet” from “[h]is back right

pocket.” As he did so, “his right hand with the cuffed fingers, went down towards

his right side and . . . [his] right fingers opened and . . . he dropped something near

his right thigh.” Appellant then proceeded to give Parker his driver’s license, and

Parker “asked him to exit the vehicle” because Parker “believed that [appellant]

was sitting on what[] . . . he [had] dropped.”

As appellant exited the car, Officer Parker saw “two small white crack

rocks” in appellant’s car seat. He saw “the crack rocks right . . . when [appellant]

got out” of the car. And he explained that he suspected that the “rocks” in

appellant’s car seat were crack rocks because he “had seen [crack rocks] in the

past.”

After appellant exited the car, Officer Parker took him to his patrol car and

“plac[ed] him in the backseat.” Parker did not handcuff appellant, and he was not

“under arrest.” Parker then returned to appellant’s car to “speak to the passenger,”

Galloway.

3
 When Officer Parker asked Galloway to “step out” of the car, he noticed that

Galloway “was mumbling his words as if he was concealing something in his

mouth.” Based on his previous experience, Parker suspected that Galloway was

“concealing narcotics in [his] mouth,” and he asked Galloway to open his mouth,

which he did “briefly.” However, Galloway then quickly “shut his mouth and

began to chew.” Galloway disobeyed Parker’s command to “spit out whatever he

had in his mouth,” and he began “struggling” with Parker. Parker was able to

handcuff Galloway, but he was not able to recover anything from his mouth. He

then searched Galloway for weapons and “more narcotics,” and he recovered “a

screwdriver with what appeared to be numerous amounts of white residue.” Parker

explained that because he believed that the screwdriver was a “push rod,” i.e., “[a]

long, slender object that is used to remove the brillo from a crack pipe,” he seized

it. He then placed Galloway in the backseat of his patrol car with appellant.

Officer Parker returned to appellant’s car to retrieve the “two white rocks in

the front [driver’s] seat” that he had previously seen. He field tested the two rocks,

and both tested positive for cocaine. Parker explained that the area in which he

had stopped appellant’s car was known for “high amounts of narcotic activity,” and

appellant had “control,” “care,” and “custody of the area” from where Parker had

seized the crack rocks.

4
 In regard to the seized evidence, and in particular the crack rocks, Officer

Parker explained that he “tagged” the evidence in “the narcotics operation and

control center,” approximately “[a]n hour” or an “hour and a half” after he arrested

appellant. Subsequently, the crack rocks were “transport[ed]” “to the lab” for

testing. On the day of trial, Parker “picked [the evidence] up from the lab” and

brought it to court. After the first day of trial and prior to their admission into

evidence, Parker took the crack rocks “back to the crime lab and resealed them and

turned them back in.” The following day, he again retrieved the crack rocks and

brought them to the courtroom, where the trial court admitted them into evidence.

Rosaura Rodriguez, a criminalist specialist at the HPD crime laboratory,

testified that her job is to “receive and . . . analyze unknown substances for the

presence of a controlled substance.” She explained that evidence that requires

testing is “received from a section [at the lab] called centralized evidence

receiving.” Prior to testing, Rodriguez “check[s] the envelope . . . [containing] the

evidence to make sure there’s a seal on [it].” She then takes the evidence to her

work area to analyze it.

In this case, Rodriguez received a sealed envelope containing the two crack

rocks. Once she opened the sealed envelope, she found “a sealed Ziploc [bag],

which contain[ed] another Ziploc [bag], which contain[ed] a beige chunk

substance.” Rodriguez administered a screening test that indicated that the “beige

5
chunk substance” “could possibly be cocaine.” She then administered an

“instrumental test,” which identified the substance as cocaine, weighing “0.18

grams.” After she completed her analysis, Rodriguez “sealed the evidence inside

of a Ziploc” bag, placed it “inside of the evidence envelope,” and “sealed the

evidence envelope to be returned to centralized evidence receiving,” “where it was

then stored in a vault.” She explained that she knew that the substance admitted

into evidence at trial was the same substance that she had tested because the

envelope that contained the substance had written upon it the “incident number”

and her initials.

Sufficiency of Evidence

In his fourth issue, appellant argues that the evidence is legally insufficient

to support his conviction because it does not establish that he “exercised actual

care, custody, control or management over the two crack rocks of cocaine” Officer

Parker discovered in his car.

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Our role is that of a due process safeguard, ensuring only the rationality of the trier

6
of fact’s finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We

give deference to the responsibility of the fact finder to fairly resolve conflicts in

testimony, weigh evidence, and draw reasonable inferences from the facts.

Williams, 235 S.W.3d at 750. However, our duty requires us “to ensure that the

evidence presented actually supports a conclusion that the defendant committed”

the criminal offense of which he is accused. Id.

A person commits the offense of possession of a controlled substance if he

“knowingly or intentionally possesses” less than one gram of cocaine. TEX.

HEALTH & SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2014),

§§ 481.102(3)(D), 481.115(a), (b) (Vernon 2010). To prove that appellant

committed this offense, the State had to establish beyond a reasonable doubt that

he exercised control, management, or care over the cocaine and knew that it was

contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see

also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (defining possession as

“actual care, custody, control, or management”). Although the State need not

prove exclusive possession of the cocaine, it must establish that a defendant’s

connection with the contraband is more than fortuitous. Evans v. State, 202

S.W.3d 158, 161–62 (Tex. Crim. App. 2006); Wiley v. State, 388 S.W.3d 807, 813

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). When a defendant is not in

7
exclusive possession of the place where contraband is found, the State must show

additional affirmative links between the defendant and the contraband. Deshong v.

State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981); Kibble v. State,

340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). Mere

presence in the same place as contraband is insufficient, by itself, to establish

actual care, custody, or control. Evans, 202 S.W.3d at 162. But, presence or

proximity to contraband, when combined with other direct or circumstantial

evidence, may be sufficient to establish possession. Id.

Texas courts have recognized that the following non-exclusive “affirmative

links” may be sufficient, either singly or in combination, to establish a person’s

possession of narcotics: (1) the defendant’s presence when a search is conducted;

(2) whether the narcotics were in plain view; (3) the defendant’s proximity to and

the accessibility of the narcotics; (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 narcotics; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place

where the narcotics were found; (12) whether the place where the narcotics were

8
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. Id. at 162 n.12. It is not the number of links that is dispositive, but rather,

the “logical force” of the evidence, both direct and circumstantial, is dispositive to

show possession. Id.; James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston

[1st Dist.] 2008, pet. ref’d).

Appellant argues that “the evidence is legally insufficient to support the

jury’s finding that [he] exercised actual care, custody, control or management over

the two crack rocks of cocaine discovered during the warrantless search” of his car

because “Officer Parker admit[ed] that he did not see what, if anything, [appellant]

dropped to his side when he reached and obtained his wallet.”

Here, several links establish that appellant had possession of the two crack

rocks seized by Officer Parker. First, when Parked approached appellant’s car

after initiating a traffic stop, he saw appellant in the driver’s seat, where he

ultimately saw the crack rocks. See Deshong, 625 S.W.2d at 329 (evidence of

possession sufficient where defendant driving car in which marijuana found in

plain view); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—Austin 1994, no

pet.) (evidence sufficient to “link[]” marijuana found in car to defendant-driver);

see also Stout v. State, 426 S.W.3d 214, 218–19 (Tex. App.—Houston [1st Dist.]

2012, no pet.) (evidence established “link[]” between defendant and gun, where he

9
“was driving the vehicle at the time the gun was found”). Second, Parker noted

that appellant appeared to be “very nervous” and his hands were “shaking.” See

Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.—Beaumont 1996, no pet.)

(defendant’s “extreme nervousness” “factor tending to link [him] to the

contraband”); see also James v. State, 264 S.W.3d 215, 219–20 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d) (evidence sufficient to link defendant to gun

where he “was nervously looking around”). Parker also saw that appellant’s right

hand was “cuffed,” i.e., “[t]he last two fingers [on his right hand] were curled up as

if he was holding onto something or concealing something,” like a “type of

narcotic.”

Third, when appellant “leaned forward to retrieve his wallet” from “[h]is

back right pocket” for Officer Parker, “his right hand with the cuffed fingers, went

down towards his right side and . . . [his] right fingers opened and . . . he dropped

something near his right thigh.” See Kennedy v. State, No. 03-04-00101-CR, 2005

WL 1034114, at *7 (Tex. App.—Austin May 5, 2005, no pet.) (mem. op., not

designated for publication) (“reaching down under [car] seat” constituted “furtive

gesture[]” linking defendant to bag of marijuana); see also James, 264 S.W.3d at

219–20 (evidence linked defendant to gun where he “was seen gesturing as though

he was placing something under the [car] seat”). Parker then asked appellant to

10
“exit the vehicle” because he “believed that he was sitting on what[] . . . he [had]

dropped.”

Fourth, as appellant exited the car, Officer Parker saw the “two small white

crack rocks” in appellant’s car seat. See Deshong, 625 S.W.2d at 329 (marijuana

“conveniently accessible” and in close proximity to defendant where found “on the

floorboard directly in front of driver’s seat” in car defendant driving); Mitchell-

Vrtis v. State, No. 14-10-00380-CR, 2011 WL 1258828, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 5, 2011, no pet.) (mem. op., not designated for

publication) (“strong links between [defendant] and the controlled substance”

where defendant “person closest to the drugs” found in car’s “driver’s side-door

compartment”); Robinson v. State, 174 S.W.3d 320, 326–27 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d) (“The location of the cocaine . . . suggests that

[defendant] had knowledge of and exercised control over the cocaine . . . .”). And

Parker saw “the crack rocks right . . . when [appellant] got out” of the car. See

Deshong, 625 S.W.2d at 329 (“[M]arihuana was in open view once the car door

had been opened by the officer.”); Mitchell-Vrtis, 2011 WL 1258828, at *2

(“strong link[]” where “first crack rock that [law enforcement officer] discovered

was in plain view near [defendant]”).

Finally, appellant was present when Officer Park retrieved the “two white

rocks in the front [driver’s] seat” of appellant’s car. See Mitchell-Vrtis, 2011 WL

11
1258828, at *2 (defendant placed in law enforcement officer’s patrol car “present

when the search was conducted”); Robinson, 174 S.W.3d at 327 (“[B]ecause the

cocaine was found in an enclosed space,” the truck, defendant was “affirmatively

linked to the cocaine.”).

Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that the jury could have reasonably found that appellant exercised actual

care, custody, control, or management over the cocaine found in his seat in the car

that he was driving. Accordingly, we hold that the evidence is legally sufficient to

support appellant’s conviction of the offense of possession of a controlled

substance, namely cocaine, weighing less than one gram.

We overrule appellant’s fourth issue.

Suppression of Evidence

In his first issue, appellant argues that the trial court erred in denying his

motion to suppress evidence because “[O]fficer Parker articulated nothing more

than a hunch or suspicion that [he] was in possession of a controlled substance and

therefore failed to justify his search of [appellant’s] vehicle as based upon probable

cause or incident to arrest.”

We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We review the trial court’s factual findings for an abuse of

12
discretion and the trial court’s application of the law to the facts de novo. Id. The

trial court is the sole and exclusive trier of fact and judge of the witnesses’

credibility and may choose to believe or disbelieve all or any part of the witnesses’

testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If, as in this case, the trial

court makes express findings of fact, we review the evidence in the light most

favorable to the trial court’s ruling and determine whether the evidence supports

the fact findings. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010). A trial court’s findings on a motion to suppress may be written or oral.2

See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006); State v. Groves,

837 S.W.2d 103, 105 n.5 (Tex. Crim. App. 1992). We give almost total deference

to the trial court’s determination of historical facts, particularly when the trial

court’s fact findings are based on an evaluation of credibility and demeanor.

Valtierra, 310 S.W.3d at 447. We will sustain the trial court’s ruling if it is

reasonably supported by the record and is correct on any theory of law applicable

to the case. Id. at 447–48.

2
When reviewing a motion to suppress, oral findings of fact may be considered as
findings of fact on the record and are given due deference. See State v. Cullen,
195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (recording of trial court’s findings
and conclusions from suppression hearing required, whether written or stated on
record); Flores v. State, 177 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d) (noting trial court “made oral findings of fact on the record” at motion
to suppress hearing).

13
 Prior to trial, appellant moved to suppress “[a]ny and all tangible evidence

seized by law enforcement officers or others in connection with [his] detention and

arrest,” namely the crack rocks that Officer Parker found in his car. During trial,

appellant “reurge[d]” his motion to suppress when the State offered into evidence

the crack rocks, asserting that there was a “lack of probable cause” for Parker’s

search. The trial court denied appellant’s motion, “find[ing] that there was

probable cause” and “the cocaine was in plain view.” It further found Parker’s

“testimony regarding the traffic stop and his observations [to be] credible and

undisputed.”

Appellant “concedes [on appeal] that there was probable cause to conduct a

traffic stop for failure to signal a left hand turn, [and] . . . [a]ccordingly, [O]fficer

Parker had sufficient basis to place [a]ppellant under arrest for that offense.”

However, he asserts that Parker’s observation of his “nervous demeanor and the

manner in which he cuffed his fingers as he reached for his wallet to obtain his

driver’s license was not sufficient articulation that criminal conduct was afoot.” In

other words, according to appellant, “[t]here was simply nothing before [O]fficer

Parker that would rise to the level of reasonable suspicion that would allow him to

continue to detain [appellant] . . . and certainly insufficient probable cause that

authorized [O]fficer Parker’s subsequent search of [appellant’s] vehicle.”

14
 The Fourth Amendment of the United States Constitution and Article I,

Section 9 of the Texas Constitution protect against unreasonable searches and

seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v. Betts, 397

S.W.3d 198, 203 (Tex. Crim. App. 2013). A search conducted without a warrant

issued upon probable cause is per se unreasonable subject to only a few

specifically established and well-delineated exceptions. See Reasor v. State, 12

S.W.3d 813, 817 (Tex. Crim. App. 2000).

Notably, however, contraband seen in “plain view” may be seized without a

warrant. See Texas v. Brown, 460 U.S. 730, 736–39, 103 S. Ct. 1535, 1540–42

(1983); see also Horton v. California, 496 U.S. 128, 133–34, 110 S. Ct. 2301,

2306, (1990) (“If an article is already in plain view, neither its observation nor its

seizure . . . involve[s] any invasion of privacy.”). Simply put, the observation of

evidence located in “plain view” does not constitute a search subject to Fourth

Amendment protection. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.

2000); Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975); see also Swarb

v. State, 125 S.W.3d 672, 680 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).

The “plain view” doctrine requires that law enforcement officers: (1) be

legally present when making their observation and (2) have probable cause to

associate any visible evidence with criminal activity. Walter, 28 S.W.3d at 541.

In determining whether the officer was legally present, “the Supreme Court

15
requires . . . ‘the officer [to] . . . not violate the Fourth Amendment in arriving at

the place from which the evidence could be plainly viewed.’” Id. (quoting Horton,

496 U.S. at 136, 110 S. Ct. at 2308). A law enforcement officer need not have

actual knowledge that an observed item is contraband in assessing whether it

constitutes evidence of criminal activity, but he must have probable cause to

connect the item with criminal activity. Brown, 460 U.S. at 741–42, 103 S. Ct. at

1543; Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991). An officer

may use his training and experience in determining whether an item seen in plain

view constitutes contraband. Brown, 460 U.S. at 746, 103 S. Ct. at 1545–46

(Powell, J., concurring) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S.

Ct. 690, 695 (1981)); Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.—Houston

[1st Dist.] 1994, pet. ref’d).

Here, Officer Parker initiated a traffic stop of appellant’s car after seeing

him commit a traffic violation by failing to signal while making a left turn. See

TEX. TRANSP. CODE ANN. § 545.104(a), (b) (Vernon 2011); see also id. § 542.301

(Vernon 2011) (violation of provision of Transportation Code title 7, subtitle C

constitutes misdemeanor offense). And appellant concedes that Parker legally

initiated the stop. See Walter, 28 S.W.3d at 542 (“[T]he decision to stop an

automobile is reasonable where the police have probable cause to believe that a

traffic violation has occurred.”).

16
 Further, after observing appellant commit a traffic violation, Officer Parker

legally approached appellant’s car, looked into it using a flashlight, and asked

appellant for his driver’s license and to step out of the car. See Brown, 460 U.S. at

739–40, 103 S. Ct. at 1542; Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct.

330, 333 (1977); Duff v. State, 546 S.W.2d 283, 286–87 (Tex. Crim. App. 1977);

see also Hopkins v. State, No. 01-10-01098-CR, 2012 WL 344908, at *3 (Tex.

App.—Houston [1st Dist.] Feb. 2, 2012, pet. ref’d) (mem. op., not designated for

publication) (“A police officer’s observation of a traffic violation establishes

probable cause to stop a car and, thus, provides the officer with a lawful vantage

point from which she can look through the windows of a car into its interior.”). It

was after appellant “step[ped] out of the car” that Parker saw, from his lawful

vantage point, “two small white crack rocks” in plain view on appellant’s car seat.

Officer Parker explained that he suspected that the “two small

white . . . rocks” were crack rocks because he “had seen [crack rocks] in the past,”

was, at the time, patrolling in an area known “for high amounts of narcotic

activity,” and had previously “seen people conceal[ing] narcotics” as appellant had

tried to do by “cuff[ing]” his right hand. See Hill v. State, 303 S.W.3d 863, 874

(Tex. App.—Fort Worth 2009, pet. ref’d) (law enforcement officers, “based on

their experience and training, immediately identified what they believed to be

crack cocaine” in plain view). Thus, based on his training and experience as a

17
police officer, Parker had probable cause to associate the “two small

white . . . rocks” that he saw in appellant’s car seat with criminal activity.

Based on the foregoing, the trial court could have reasonably concluded that

Officer Parker’s “plain view” observation of the crack rocks located in appellant’s

car seat did not constitute a search and seizure implicating the Fourth Amendment.

Accordingly, we hold that the trial court did not err in overruling appellant’s

motion to suppress evidence.3

Admission of Evidence

In his third issue, appellant argues that the trial court erred in admitting into

evidence a sealed envelope, State’s exhibit 4, that contained State’s exhibit 5, a

sealed Ziploc bag containing the two crack rocks seized from his car by Officer

Parker, because “the State failed to prove the beginning and end of the chain of

custody.”

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without

3
In support of his argument that the trial court erred in denying his motion to
suppress evidence, appellant relies on Arizona v. Gant, 556 U.S. 332, 129 S. Ct.
1710 (2009). However, Gant concerns vehicle searches incident to arrest, whereas
here, Officer Parker observed the crack rocks in plain view. See 556 U.S. at 335–
38, 129 S. Ct. at 1714–16. And whether Parker conducted a proper search incident
to arrest is not at issue.

18
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990). When considering a trial court’s decision to

admit evidence, we will not reverse the trial court’s ruling unless it falls outside the

“zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex.

Crim. App. 1996) (internal quotations omitted).

We may not determine whether a trial court erred in the admission of

evidence, unless error is preserved for our review. See Martinez v. State, 98

S.W.3d 189, 193 (Tex. Crim. App. 2003). To preserve the issue of erroneously

admitted evidence, a party must make a timely and specific objection and obtain a

ruling from the trial court. TEX. R. APP. P. 33.1(a); Martinez, 98 S.W.3d at 193.

“The purpose of requiring a specific objection in the trial court is twofold: (1) to

inform the trial [court] of the basis of the objection and give [it] the opportunity to

rule on it; and (2) to give opposing counsel the opportunity to respond to the

complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). To

preserve error, a party “must be specific enough so as to ‘let the trial [court] know

what he wants, why he thinks himself entitled to it, and do so clearly enough for

the [trial court] to understand him at a time when the trial court is in a proper

position to do something about it.’” Id. at 313 (quoting Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party fails to preserve error when the

contention urged on appeal does not comport with the specific complaint made in

19
the trial court. See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009); Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.]

2008, pet. ref’d).

We consider the context of the complaint to determine if the party preserved

error. Resendez, 306 S.W.3d at 313. If the correct ground for exclusion was

obvious to the trial court and opposing counsel, waiver will not result from a

general or imprecise objection. Zillender v. State, 557 S.W.2d 515, 517 (Tex.

Crim. App. 1977). However, if the context shows that a party failed to effectively

communicate his argument, then the error is deemed waived on appeal. Lankston,

827 S.W.2d at 909.

Here, after the State offered into evidence its exhibits 4 and 5, the following

exchange took place:

[Appellant’s Counsel]: . . . Your Honor, maybe I’m confused; but
yesterday I believe that both of the
envelopes were actually opened. Today [the
State] has gone through the whole process of
opening the envelope. Do they get resealed
every day?

The Court: Regardless, what’s your objection?

[Appellant’s Counsel]: Well, my objection, well, one, because I will
reurge my Motion to Suppress at this time
regarding State’s Exhibit 5 based upon, you
know, lack of probable cause.

20
 The Court: And, I’ve had an opportunity to review the
written Motion to Suppress. Are there any
other -- any additional information --

[Appellant’s Counsel]: No.

The Court: -- that you want to present regarding the
Motion to Suppress?

[Appellant’s Counsel]: No, that’s it.

The Court: All right. For purposes of the record, your
Motion to Suppress is denied. . . .

[Appellant’s Counsel]: Okay, Respectfully, may I -- yes, I still
believe there’s a foundation with State’s
Exhibit 5 because of the fact that it, whether
or not this is the actual, the same things, I
mean that were --

The Court: Again, I recognize that you made that
objection to the weight not the admissibility.
I’m admitting those two items over
objection.

(Emphasis added.)

Although appellant challenges the trial court’s admission of both State’s

exhibits 4 and 5 on appeal, our review of the record reveals that he made no timely

and specific objection in the trial court regarding the admission of State’s exhibit 4.

Accordingly, we hold that appellant did not preserve his issue in regard to State’s

exhibit 4 for our review. See TEX. R. APP. P. 33.1(a); Martinez, 98 S.W.3d at 193.

In regard to State’s exhibit 5, in addition to “reurg[ing]” his motion to

suppress evidence based on a lack of probable cause, appellant complained about

21
the “foundation with State’s [e]xhibit 5 because of the fact that it, whether or not

[it] is the actual, the same things . . . .” And the trial court “recognize[d]” his

“objection to the weight[,] not the admissibility.” Assuming, however, without

deciding, that appellant preserved for review his chain-of-custody complaint

regarding State’s exhibit 5 that he now makes on appeal, we conclude that the trial

court did not err in admitting the exhibit into evidence.

Chain of custody is a predicate that must be established for the admission of

fungible evidence, such as narcotics or test results. Davis v. State, 992 S.W.2d 8,

10–11 (Tex. App.—Houston [1st Dist.] 1996, no pet.). To establish the

admissibility of such evidence, the proponent “need only prove the beginning and

end of the chain of custody; it need not show a ‘moment-by-moment account of the

whereabouts of evidence from the instant it is seized.’” Shaw v. State, 329 S.W.3d

645, 654 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (quoting Reed v.

State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)).

This is particularly true if a proponent establishes the chain of custody through to

the laboratory. Gallegos v. State, 776 S.W.2d 312, 315–16 (Tex. App.—Houston

[1st Dist.] 1989, no pet.); see also Menefee v. State, 928 S.W.2d 274, 280 (Tex.

App.—Tyler 1996, no pet.). “Absent evidence of tampering, issues regarding the

chain of custody bear on the weight, rather than on the admissibility, of evidence.”

Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010).

22
 Here, Officer Parker testified that he seized “two small white crack rocks”

from “the front [driver’s] seat” of appellant’s car. Approximately “an hour” or an

“hour and a half” after he arrested appellant, he “tagged” the evidence in “the

narcotics operation and control center.” The crack rocks were then “transport[ed]”

“to the lab” for testing. On the first day of trial, Parker “picked [the evidence] up

from the lab” and brought it to court. After the first day of trial, and before the

admission of State’s exhibit 5 into evidence, he took the crack rocks “back to the

crime lab and resealed them and turned them back in.” The next day, Parker again

retrieved the evidence and brought it back to the courtroom.

Officer Parker further testified that he knew that State’s exhibit 5 contained

“the same . . . crack cocaine that [he] found on [appellant’s car] seat” because it

was sealed in an envelope, State’s exhibit 4, upon which he had written his initials.

And the contents of State’s exhibit 5 were “in the same or substantially similar

condition” as they were when he seized the crack rocks on May 6, 2013.

Rodriguez, who had tested the “beige chunk substance” in State’s exhibit 5

at the HPD crime laboratory, testified that evidence in need of testing is “received

from a section [at the lab] called centralized evidence receiving.” Prior to testing

evidence, she “check[s] the envelope . . . [containing] the evidence to make sure

there’s a seal on it.” Rodriguez then takes the evidence to her work area to analyze

it.

23
 In this case, Rodriguez explained that she received a sealed envelope, State’s

exhibit 4, that contained State’s exhibit 5, a Ziploc bag containing two crack rocks.

Once she opened the sealed envelope, she found “a sealed Ziploc [bag], which

contain[ed] another Ziploc [bag], which contain[ed] a beige chunk substance.”

After completing her testing, Rodriguez “sealed the evidence inside of a Ziploc”

bag, placed it “inside of the evidence envelope,” and “sealed the evidence envelope

to be returned to centralized evidence receiving,” “where it was then stored in a

vault.” Rodriguez explained that she knew that the substance admitted into

evidence at trial, contained in State’s exhibit 5, was the same substance that she

had tested because State’s exhibit 4, the sealed envelope that contained State’s

exhibit 5, had written upon it the “incident number” and her initials.

Appellant argues that the State failed to establish the chain of custody of

State’s exhibit 5 because “[n]o one was called . . . to testify as to who transported

the evidence from [the] ‘narcotics operation and control center . . . to the lab’” and

Officer Parker did not “tag[]” the crack rocks themselves. Contrary to appellant’s

arguments, however, testimony as to who transported the evidence to the HPD

crime laboratory was not required to establish the chain of custody, nor was Parker

required to “mark” or “tag” the individual crack rocks. See Reber v. State, No. 07-

02-0488-CR, 2004 WL 1175484, at *3–4 (Tex. App.—Amarillo May 26, 2004,

pet. ref’d, untimely filed) (not designated for publication) (no chain-of-custody

24
issue where law enforcement officer “did not place an identifying mark on the

plastic bag [containing narcotics] itself,” but “did put identification upon the

envelope in which the plastic bag was placed”); Caddell v. State, 123 S.W.3d 722,

727–28 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (rejecting defendant’s

argument State failed to establish chain of custody because “no one testified that

they transferred the evidence bag from the lock box to the lab”); Young v. State,

No. 01-95-00895-CR, 1996 WL 256594, at *1–2 (Tex. App.—Houston [1st Dist.]

May 16, 1996, pet. ref’d) (not designated for publication) (no chain-of-custody

issue despite no markings on individual baggies of crack cocaine and marijuana

placed in evidence envelope). Further, once the evidence establishes the chain of

custody into the lab, as Parker’s and Rodriguez’s testimony did here, any further

objection, as noted by the trial court, goes to the weight of the evidence, rather than

to its admissibility. See Menefee, 928 S.W.2d at 280.

To the extent that appellant asserts that Officer Parker may have tampered

with State’s exhibit 5 by taking it to the lab to store overnight after the first day of

trial, he does not direct us to any affirmative evidence showing that State’s exhibit

5 was actually tampered with or changed in any way. See Hall v. State, 13 S.W.3d

115, 120 (Tex. App.—Fort Worth 2000, pet. dism’d) (absent affirmative evidence

of commingling or tampering, speculative or theoretical breaches in chain of

custody do not affect admissibility); Irvine v. State, 857 S.W.2d 920, 925 (Tex.

25
App.—Houston [1st Dist.] 1993, pet. ref d) (holding defendant’s assertion

“possibility” original baggies “supplemented by other baggies” impacted only

weight of evidence, not admissibility); see also Foley v. State, Nos. 01-11-00113-

CR, 01-11-00114-CR, 2012 WL 1564685, at *2–4 (Tex. App.—Houston [1st

Dist.] May 3, 2012, pet. ref’d) (mem. op., not designated for publication)

(“Appellant’s speculation that the evidence might have been tampered with or

altered, without more, does not render the chain-of-custody evidence

insufficient.”).

Accordingly, we hold that the trial court did not err in admitting State’s

exhibit 5 into evidence.

We overrule appellant’s third issue.

Voir Dire and Jury Charge Error

In his second issue, appellant argues that the trial court erred in making

certain “remarks” during voir dire of the venire panel and subsequently instructing

the jury in its charge on the meaning of “beyond a reasonable doubt” because its

comments and instruction were “improper, misleading, and confusing,” resulting in

a “lessen[ing] [of] the State’s burden of proof.” He asserts that the trial court’s

error is “structural” and “not subject to a harmless error review.”

In regard to the trial court’s charge to the jury, appellant complains that the

trial court instructed the jury as follows:

26
 The prosecution has the burden of proving the defendant guilty and it
must do so by proving each and every element of the offense charged
beyond a reasonable doubt and if it fails to do so, you must acquit the
defendant.

It is not required that the prosecution prove guilt beyond all possible
doubt; it is required that the prosecution’s proof excludes all
reasonable doubt concerning the defendant’s guilt.

However, appellant does not provide a clear argument or direct us to any authority,

establishing that the complained-of instruction resulted in a lessening of the State’s

burden of proof. See TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to “contain

a clear and concise argument for the contentions made, with appropriate citations

to authorities”). Instead, appellant merely cites the standard of review for jury

charge error and quotes the complained-of instruction. Such is not sufficient to

properly present an issue to this Court for review. See Watkins v. State, 333

S.W.3d 771, 779 (Tex. App.—Waco 2010, pet. ref’d) (“[A] generic statement

regarding the standard of review” not adequate on issue of whether “trial court

erred by not including an ‘impeachment instruction’ in the jury charge . . . .”);

Torres v. State, 979 S.W.2d 668, 674 (Tex. App.—San Antonio 1998, no pet.)

(point of error “inadequately briefed” where defendant “advance[d] no argument as

to why the charge . . . [was] erroneous”). Accordingly, we hold that appellant has

waived this portion of his second issue. See Cardenas v. State, 30 S.W.3d 384,

393 (Tex. Crim. App. 2000) (appellate court has no obligation to consider

inadequately briefed points of error).

27
 In regard to the trial court’s “remarks” made during voir dire of the venire

panel, appellant complains that the trial court made the following comments:

The Court: Let’s also talk about the presumption of
innocence. How many of you-all have heard
of the presumption of innocence? A person
is presumed innocent unless and until the
State proves their guilt beyond a reasonable
doubt. . . .

....

. . . Again, I’ve told you the State’s done the
accusing, they have to do the proving. So,
let’s talk about the burden of proof. The
burden of proof in a criminal case is beyond
a reasonable doubt. Anyone want to guess
what the definition of beyond a reasonable
doubt is, or anybody know the definition of
beyond a reasonable doubt? Good. Because
there is no definition of beyond a reasonable
doubt.

I can tell you a couple of things about
beyond a reasonable doubt, first of all, many
years ago our appellate court justices
attempted to come up with a definition of
beyond a reasonable doubt, and they quickly
recognized that it’s something that shouldn’t
be defined. They felt like it should be up to
individual jurors to determine their level of
satisfaction beyond a reasonable doubt.

Now, I can tell you that beyond a reasonable
doubt is the highest burden of proof that we
have in our legal system. How many of
you-all walked near the fancy courthouse
across the street, big dome on top? Over in
the civil courthouse, lawyers argue about

28
millions of dollars every day; and the burden
of proof over at the civil courthouse is by a
preponderance of the evidence. A greater
weight of the credible evidence, the shifting
of the scale to over 50 percent gets you all
the money over in the civil courthouse. And
in the family courthouse across the street,
people talk about child custody cases every
day. Children can be removed from their
parents by clear and convincing evidence,
that’s the standard of proof and that’s less
than beyond a reasonable doubt.

So, by illustration, using those as examples,
we’ve got preponderance of the evidence,
clear and convincing evidence; and in a
criminal court, it is beyond a reasonable
doubt. Now, I tell you that because while it
is the highest burden of proof that we have,
it is not proof to a hundred percent certainty
or proof beyond all possible doubt. . . .

....

All right. I would say that probably the
reason that we have beyond a reasonable
doubt and not beyond all doubt as a standard
of proof is because ordinarily, well, it’s
almost an impossible standard. When we
talk about proof to a hundred percent
certainty, I would say that most people
would feel like if you didn’t see it with your
own eyes, you didn’t actually witness it, it
would be hard for you to be convinced to a
hundred percent certainty. So, it’s not a
hundred percent certainty. I can also tell
you that there’s no requirement that the
State bring you a certain type of evidence or
a certain number of witnesses, for example.

29
I can tell you in the 30 years that I’ve been
down here, Prosecutors have proven cases
with physical evidence or circumstantial
evidence such as DNA, fingerprints, and no
eyewitness; and the jurors are satisfied
beyond a reasonable doubt.

Any CSI fans in the group? There always
are. Let me just tell you this, I imagine this
isn’t going to play out like an episode from
CSI, just a guess, based on my experience.
It won’t be wrapped up, I don’t know, in 30
minutes including commercials, right?
Usually they’re able to -- the last episode I
watched of CSI was actually, I think, a
murder case where the perpetrator was
caught and the case was solved based on an
exotic bird feather that fell on the scene that
apparently belonged to an exotic bird owned
by the murderer, so it was solved through
DNA evidence and some sort of expert on
bird feathers. I haven’t seen that ever play
out in the criminal courthouse. So, put those
episodes of CSI out of your mind. This is
real life and we’re going to be dealing with
real life people, real-life circumstances.

That being said, physical evidence alone
might be sufficient for the State to meet their
burden of proof. There are cases that are
proven with the testimony of one single
witness if that witness is believed by the
jurors to be credible, and they prove every
element of the offense beyond a reasonable
doubt. The bottom line is it’s the quality of
the evidence, not the quantity of the
evidence. So, you as jurors are going to be
asked to determine the credibility of the
witnesses and make your decision as to

30
whether or not the Defendant is actually
guilty based on the evidence that you hear.

. . . At the end of the process, I’m going to
give you the law that applies in this case,
you’ll go back to the jury room with your
fellow jurors, and you’ll make a decision as
to whether or not the State’s proven the
Defendant’s guilt[] beyond a reasonable
doubt. Makes sense to everybody? Good.

All right. So, your job is to determine the
credibility of the witnesses. My job, of
course, is to give you the law that applies;
and that will be given to you in writing at
the end of the trial. Let’s talk about -- I’ve
told you multiple times that the State has
done the proving. I told you they’ve done
the accusing, they have to do the proving.
I’ve told you it’s beyond a reasonable doubt.
That means, obviously, that [defense
counsel] is not required to bring you any
evidence. Now, she’s an excellent attorney,
and I expect that she will do a very good
job, but there’s no requirement that the
Defendant or his attorney bring you any
evidence at all. You look to this side of the
table for all the evidence. And I promise
you [the State] knows exactly what his job
is, and he accepts that responsibility.

....

Now, at the end of the first phase of the trial,
you’ll go back to the jury room; and you’ll
make a decision based on the evidence that
you hear. Is the Defendant actually guilty of
this offense? Or is he not guilty based on
that burden of proof, beyond a reasonable
doubt? If you-all find a defendant not

31
 guilty, the trial is over; and we all go home.
If you find a defendant guilty in any
criminal trial, we would then move on to the
second phase of the trial, which is the
punishment phase.

Now, I consider the guilt/innocence phase to
be the objective phase of the trial. And I tell
you that because in that portion of the trial,
you’re asked to objectively evaluate the
evidence to determine whether or not the
Defendant actually committed this offense.
The punishment phase is more subjective.
And I tell you that because during the
punishment phase of the trial, you’re
looking at evidence a little bit differently.
You may be looking at motive in the
punishment phase of a trial. You may be
looking at how the offense was carried out,
what was the Defendant’s demeanor? Who
was harmed as a result of this offense?
What is the person’s background, those are
things that are completely irrelevant to
guilt/innocence but can be highly relevant as
to what the appropriate punishment should
be.

As revealed by the above quoted portion of the record, appellant did not

timely and specifically object to the trial court’s comments and obtain an adverse

ruling. See TEX. R. APP. P. 33.1(a); Fuentes v. State, 991 S.W.2d 267, 273 (Tex.

Crim. App. 1999) (holding defendant waived complaint about trial court’s

explanation of beyond-a-reasonable-doubt standard during voir dire by failing to

renew objection when trial court repeated explanation); Marshall v. State, 312

S.W.3d 741, 743 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (to preserve

32
error for review necessary to object to trial court’s voir dire comments). Because

appellant did not object to any part of the trial court’s voir dire to the venire panel,

he, on appeal, may only complain of fundamental error. See McLean v. State, 312

S.W.3d 912, 915 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“[A]s a threshold

matter, we address whether appellant preserved error through an objection in the

trial court and, if not, whether the error was fundamental error affecting a

substantial right and thus required no objection.”); Marshall, 312 S.W.3d at 743–

45 (after noting defendant failed to object to “court’s comments during voir dire,”

determining whether comments constituted fundamental error); see also TEX. R.

EVID. 103(e). Fundamental error occurs when a “trial [court’s] comments r[i]se to

such a level as to bear on the presumption of innocence or vitiate the impartiality

of the jury.” Jasper v. State. 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).

We note that this Court has previously concluded that comments, made by

both prosecutors and judges during voir dire, similar to the complained-of

comments in this case, did not rise to the level of fundamental error. See, e.g.,

Haro v. State, 371 S.W.3d 262, 263–66 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (holding trial court’s voir dire comment, “you, individually, g[et] to decide

what beyond a reasonable doubt means to you,” not fundamental error (internal

quotations omitted)); McLean, 312 S.W.3d at 915–18 (holding trial court’s voir

dire comments, which included “the permissibility of convicting a defendant based

33
on a single witness,” not fundamental error); Marshall, 312 S.W.3d at 742–45

(holding trial court’s voir dire comments, “the Legislature has not given . . . a

definition” of reasonable doubt and “the Legislature figures everybody is

reasonable and they would know a reasonable doubt when they see it,” not

fundamental error (internal quotations omitted)); Rogers v. State, 795 S.W.2d 300,

306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (holding trial court’s voir

dire comments, “the bottom line is going to be what beyond a reasonable doubt is

to you” and “the legislature has not defined th[e] term,” not fundamental error

(internal quotations omitted)); see also Ali v. State, No. 05-02-01235-CR, 2003

WL 21350250, at *2 (Tex. App.—Dallas June 11, 2003, pet. dism’d) (not

designated for publication) (holding prosecutor’s voir dire question, whether “the

venire . . . would require physical evidence or more than one witness to convict,”

not fundamental error).

Here, we cannot conclude that the trial court’s voir dire comments negated

the presumption of innocence or vitiated the impartiality of the jury. See Jasper,

61 S.W.3d at 421. Accordingly, we hold that the complained-of voir dire

comments made by the trial court do not rise to the level of fundamental error, and,

thus, appellant has waived his complaint about them.

34
 Modification of Judgment

We note that the trial court’s written judgment does not accurately comport

with the record in this case in that it states:

Defendant entered a plea and filed a written election to have the jury
assess punishment. The jury heard evidence relative to the question of
punishment. The Court charged the jury and it retired to consider the
question of punishment. After due deliberation, the jury was brought
into Court, and, in open court, it returned its verdict as indicated
above.

The record, however, indicates that appellant, after the jury found him guilty, and

with the State’s consent, changed his election to have the trial court, not the jury,

assess his punishment. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(b)

(Vernon Supp. 2014) (“If a finding of guilt is returned, the defendant may, with the

consent of the attorney for the state, change his election of one who assesses the

punishment.”); Gibson v. State, 549 S.W.2d 741, 742 (Tex. Crim. App. 1977)

(once defendant elects whether jury or trial court is to assess punishment, he may

change election if State consents).

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when it has the necessary data and

information to do so, or make any appropriate order as the law and nature of the

case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet ref’d)). Although neither party addresses the inconsistency

35
between the trial court’s written judgment and the record in this case, based on our

review, we conclude that the portion of the judgment regarding who “assessed”

punishment does not accurately comport with the record. 4 See Asberry, 813

S.W.2d at 529–30 (authority to correct incorrect judgment not dependent upon

request of any party).

Accordingly, we modify the trial court’s judgment to uncheck the box next

to:

Defendant entered a plea and filed a written election to have the jury
assess punishment. The jury heard evidence relative to the question of
punishment. The Court charged the jury and it retired to consider the
question of punishment. After due deliberation, the jury was brought
into Court, and, in open court, it returned its verdict as indicated
above.

We further modify the trial court’s judgment to check the box next to: “Defendant

elected to have the Court assess punishment. After hearing evidence relative to the

question of punishment, the Court assessed Defendant’s punishment as indicated

above.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Crim. App. 1993).

4
We note that the first page of the trial court’s judgment, under the section titled
“Punishment Assessed by,” accurately states “COURT.”

36
 Conclusion

We affirm the judgment of the trial court as modified.

Terry Jennings
Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

37