                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00329-CR

GARY L. TYSON, SR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 27985


                           MEMORANDUM OPINION


      Gary Tyson appeals from a conviction for delivery of a controlled substance of one

gram or more but less than four grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(c)

(West 2010). Tyson complains that the trial court erred by denying his motion for mistrial

due to improper testimony regarding extraneous offenses and that the evidence was

insufficient for the jury to have found him guilty. Because we find no reversible error,

we affirm the judgment of the trial court.
                                   MOTION FOR MISTRIAL

        In his first issue, Tyson complains that the trial court erred by denying his motion

for mistrial. Tyson argues that testimony given by a confidential informant that "he

always has good dope" was so prejudicial that a mistrial was necessary. While the

confidential informant was identifying the exhibit that allegedly contained crack cocaine

rocks, the following exchange occurred:

        STATE:        Did you notice anything about it when he gave it to you?

        WITNESS:      No. It was just crack.

        STATE:        Fair enough.

        WITNESS:      They all look good, some of them better than others, and it
                      was a nice amount for the money. He always has good dope.

        DEFENSE:      Objection, Your Honor.

        COURT:        Sustained.

        DEFENSE:      I would ask that the jury disregard.

        COURT:        The jury will disregard any side remarks, and ma'am, you will
                      control yourself and you will answer questions, and answer
                      questions only. We don't need any commentary.

        WITNESS:      Yes, sir.

        DEFENSE:      I would move for a mistrial.

        COURT:        That will be denied.




Tyson v. State                                                                        Page 2
        Right after the jury charge conference regarding guilt-innocence, Tyson re-urged

his motion for mistrial, which the trial court denied because it found that the instruction

to disregard was sufficient to cure any error.

        We review a trial court's denial of a motion for mistrial under an abuse of

discretion standard. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App. 2011).

Generally, a witness's reference to an extraneous offense is cured by a prompt instruction

to disregard. See Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam).

A mistrial should be granted only in cases where the "reference was clearly calculated to

inflame the minds of the jury or was of such damning character as to suggest it would be

impossible to remove the harmful impression from the jurors' minds." Id. (internal

citations omitted).

        After the witness's non-responsive statement, the trial court promptly gave an

instruction to the jury to disregard. "The law generally presumes that instructions to

disregard and other cautionary instructions will be duly obeyed by the jury." Archie, 340

S.W.3d at 741 (internal citations omitted). There is nothing in the record that indicates

that the instruction was not effective in curing any potential prejudice or that the harmful

impression left by the statement was "impossible to remove from the jurors' minds" such

that a mistrial was the only appropriate remedy. Tyson conceded that the statement was

not purposefully elicited by the State, and we agree that the unsolicited comment was not

"calculated to inflame the minds of the jury." Young, 283 S.W.3d at 854. We conclude that


Tyson v. State                                                                        Page 3
the trial court did not abuse its discretion in determining that the testimony was not so

prejudicial as to require a mistrial. We overrule Tyson's first issue.

                                SUFFICIENCY OF THE EVIDENCE

        In his second issue, Tyson complains that the evidence was insufficient for the jury

to have found that he committed the offense or that the ten rocks found in the baggie

constituted one gram or more of cocaine because of what he contends was the State's

expert's improper method of testing the rocks. The Court of Criminal Appeals has

expressed our standard of review of a sufficiency issue as follows:

        When addressing a challenge to the sufficiency of the evidence, we consider
        whether, after viewing all of the evidence in the light most favorable to the
        verdict, any rational trier of fact could have found the essential elements of
        the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
        99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
        Crim. App. 2017). This standard requires the appellate court to defer "to
        the responsibility of the trier of fact fairly to resolve conflicts in the
        testimony, to weigh the evidence, and to draw reasonable inferences from
        basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh
        the evidence or substitute our judgment for that of the factfinder. Williams
        v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
        a sufficiency review must not engage in a "divide and conquer" strategy but
        must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at
        232. Although juries may not speculate about the meaning of facts or
        evidence, juries are permitted to draw any reasonable inferences from the
        facts so long as each inference is supported by the evidence presented at
        trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
        443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
        2007). We presume that the factfinder resolved any conflicting inferences
        from the evidence in favor of the verdict, and we defer to that resolution.
        Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
        the jurors are the exclusive judges of the facts, the credibility of the
        witnesses, and the weight to be given to the testimony. Brooks v. State, 323
        S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
Tyson v. State                                                                               Page 4
        evidence are equally probative, and circumstantial evidence alone may be
        sufficient to uphold a conviction so long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction. Ramsey
        v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at
        13.

        We measure whether the evidence presented at trial was sufficient to
        support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is one that "accurately sets out the law, is authorized by
        the indictment, does not unnecessarily increase the State's burden of proof
        or unnecessarily restrict the State's theories of liability, and adequately
        describes the particular offense for which the defendant was tried." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

SUFFICIENCY RELATING TO THE TRANSACTION

        Tyson first complains that the evidence was insufficient for the jury to find him

guilty of delivery of a controlled substance because the informant's testimony was not

credible and the poor quality of the video of the transaction taken with the failure of law

enforcement to link Tyson to the money renders the evidence insufficient to show that he

delivered a controlled substance. His complaint was not briefed as a lack of corroboration

of the confidential informant's testimony but to the sufficiency of the evidence as a whole.

In his brief to this Court, Tyson did not include any authority relating to what is required

relating to confidential informants and corroboration in this issue, so we will address the

issue in the manner he presented it in his brief.
Tyson v. State                                                                           Page 5
RELEVANT FACTS

        The informant called Tyson to set up the transaction, stating that she had $200 and

"couldn't find nothing" and needed his help. In the call, the individual the informant

identified as Tyson verified how much money the informant had to pay and said he

would "do it up" and call her back. A location was later agreed upon by the informant

and Tyson. The informant and her vehicle were searched by law enforcement prior to

her leaving to meet Tyson. The informant was given $200 to complete the transaction.

Law enforcement set up a video camera in the front passenger seat of her vehicle which

ran from the time it was set up until the informant returned later.

        The informant drove to the designated meeting spot where the transaction took

place. The informant testified that Tyson "came to the passenger side of my truck, gave

me the dope, and I gave him the money." A still photograph made from the video

appears to show a package of some kind in Tyson's hand or near his arm. Two officers

testified that they saw Tyson approach the vehicle and one saw Tyson's hands go inside

the vehicle. Law enforcement did not pursue Tyson after the transaction, so the money

was not recovered or otherwise connected to Tyson. Law enforcement was also unable

to follow the informant back to their designated meeting place, but the video showed that

the informant did not make any stops after the transaction. Upon meeting, the informant

gave law enforcement a baggie which contained ten rocks of what appeared to be crack

cocaine and was found to no longer be in possession of the money provided to her.


Tyson v. State                                                                       Page 6
        Tyson contends that the evidence was insufficient because the informant was not

credible. The informant had been paid for her assistance by law enforcement for some

time, although there was no accounting of how much she had been paid and for what.

Additionally, the informant was working with law enforcement pursuant to a written

agreement which both parties knew she had violated because she had been using illegal

substances during the time that she was assisting law enforcement. Tyson also points to

a discrepancy in the description of the search of the informant prior to the transaction,

which the informant claimed included the removal of clothing and the officer who

conducted the search asserted was only a "pat-down." Tyson contends that a "pat-down"

was insufficient for law enforcement to determine whether the informant had drugs on

her person.

        Additionally, Tyson argues that the other evidence merely shows that Tyson put

his arms inside the vehicle and had a conversation with the informant. He points to law

enforcement's failure to follow him or to attempt to retrieve the money as a failure to

show that a delivery of a controlled substance was completed. Tyson further argues that

the video recording was not helpful because the sound was not connected to the video

recording but was separate, the video recording was upside-down, showed the incorrect

date, and the lighting was poor while only showing Tyson putting his arms inside of the

informant's vehicle window and conversing with the informant.




Tyson v. State                                                                     Page 7
ANALYSIS

        Viewing all of the evidence in a light most favorable to the judgment and deferring

to the jury's determinations regarding credibility, the weight of the testimony, and the

facts, which we find were reasonable, we find that the evidence was sufficient for the jury

to have found beyond a reasonable doubt that Tyson was guilty of delivery of a controlled

substance. We overrule this portion of Tyson's second issue.

 SUFFICIENCY RELATING TO THE COCAINE

        Tyson also complains that the evidence was insufficient to show that he delivered

one gram or more of cocaine to the informant because of the testing methodology used

by the State's expert. The rocks were contained in a single baggie. The expert testified

that after viewing and weighing the rocks, he scraped a small amount off of each one,

combined the scrapings, and tested it for the presence of a controlled substance. The

scrapings tested positive for cocaine. Tyson argues that this methodology would make

it impossible to show that more than one rock contained cocaine, which would necessitate

a finding that he only delivered less than one gram of cocaine.

        In Melton v. State, the Court of Criminal Appeals has addressed a very similar issue

which we believe controls our determination of this portion of Tyson's issue. Melton v.

State, 120 S.W.3d 339 (Tex. Crim. App. 2003). In Melton, the court of appeals had found

that the evidence was legally insufficient to establish that the defendant was guilty of

possession of the full weight of all of a baggie of rocks of crack cocaine when only several


Tyson v. State                                                                        Page 8
rocks were actually tested for the presence of cocaine. The Court of Criminal Appeals

reversed, holding in relevant part:

        The fault in the court's point is that it treats each rock as a separate
        controlled substance, rather than treat all the rocks as a mixture. The term
        "controlled substance" includes the "aggregate weight of any mixture,
        solution, or other substance containing a controlled substance." TEX.
        HEALTH & SAFETY CODE ANN. § 481.002 (5) (Vernon 2003) (emphasis added).
        Here, the jury heard testimony that the rocks of crack cocaine were all found
        in one bag. The jury was also permitted to inspect the bag and its contents
        in order to see the similarities in appearance. Therefore, it was reasonable
        for the jury to infer that the thirty-five to forty rocks composed a mixture of
        crack cocaine, even if, some of the rocks were, as the court of appeals
        hypothesized, "composed entirely of noncocaine."                 Under these
        circumstances, it would be unnecessary to require the State to test each rock
        to determine whether it contains cocaine, much in the same way that it
        would be unnecessary to require the State to prove that each grain of a
        powdery substance contains cocaine, especially if there were,
        hypothetically, 350 to 400 rocks instead of thirty-five to forty, all with the
        same appearance, and all found in the same receptacle. The Legislature did
        away with the requirement for this sort of hyper-technical analysis when it
        amended the definition of "adulterant or dilutant." See TEX. HEALTH &
        SAFETY CODE ANN. § 481.002 (49) (Vernon 2003); Hines v. State, 976 S.W.2d
        912, 913 (Tex. App.—Beaumont 1998, no pet.).

        Under the new Health and Safety Code definition, the State is no longer
        required to determine the amount of controlled substance and the amount
        of adulterant and dilutant that constitute the mixture. See Isassi v. State, 91
        S.W.3d 807, 810 (Tex. App.—El Paso 2002, pet. ref'd); Williams v. State, 936
        S.W.2d 399, 405 (Tex. App.—Fort Worth 1996, pet. ref'd); TEX. HEALTH &
        SAFETY CODE ANN. § 481.115. The State has to prove only that the aggregate
        weight of the controlled substance mixture, including adulterants and
        dilutants, equals the alleged minimum weight. See Isassi, 91 S.W.3d at 810;
        Hines, 976 S.W.2d at 913; TEX. HEALTH & SAFETY CODE ANN. § 481.002 (5)
        (Vernon 2003). Here, Ramsey tested and confirmed that the rocks contained
        cocaine, and that the aggregate weight of the rocks was 5.77 grams.
        Contrary to the finding of the court of appeals, we find that a rational jury
        could have found that the evidence showed beyond a reasonable doubt that


Tyson v. State                                                                            Page 9
        the plastic bag found in the appellant's possession contained at a minimum,
        four grams of cocaine.

Melton, 120 S.W.3d at 343-44. Here, as in Melton, the jury was able to view the actual rocks

of cocaine that were contained in one baggie. Additionally, the State's expert testified

that the rocks contained in the baggie weighed 2.21 grams, all of the rocks appeared

identical in appearance as to their composition, and the rocks were all in contact with

each other in the baggie. We find that, like in Melton, the evidence was sufficient for the

jury to have found that the baggie contained one gram or more of cocaine. We overrule

issue two.

CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed April 24, 2019
Do not publish
[CR25]




Tyson v. State                                                                        Page 10
