
NO. 07-04-0260-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 2, 2004

______________________________


ELLERY CORNELIUS OLIVER, APPELLANT

V.

ZONIA A. SCOTT, APPELLEE


_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 91,428; HONORABLE PAMELA C. SIRMON, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION
	Pending before this Court is appellant Ellery Cornelius Oliver's motion by which he
requests we dismiss this appeal. (1)  Oliver, an inmate proceeding pro se and informa
pauperis, originally filed suit against appellee Zonia A. Scott in justice court where his claim
was dismissed pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. 
After his appeal to the County Court At Law No. 2 was dismissed for lack of prosecution,
he appealed to this Court. 
	In his motion, Oliver indicates a desire to re-file his claim.  Thus, because the
dismissal of his claim in county court was not a ruling on the merits, we dismiss this appeal
without prejudice.  Cf. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001,
no pet.) (holding that it was error to dismiss with prejudice an inmate's suit for failure to
comply with the rules governing the filing of in forma pauperis suits).
	Without passing on the merits of this appeal, pursuant to Rule 42.1(a)(1) of the
Texas Rules of Appellate Procedure, we grant the motion and dismiss the appeal without
prejudice.  Having dismissed the appeal at Oliver's request no motion for rehearing will be
entertained and our mandate will issue forthwith.

						Don H. Reavis
						    Justice

1. Oliver requests that his case be exchanged and transferred for refiling pursuant to
Rule 330(e) of the Rules of Civil Procedure.  Rule 330(e), however, does not apply.   

 Williams possessed a valid driver's license, Johnson asked
Williams for, and Williams provided, consent to search his vehicle.  Johnson then walked
to the back of his patrol car to retrieve the consent forms.  As he began to open the trunk,
he noticed appellant open the front passenger door of the car, step out and throw an object
under the car door toward the barrow ditch.  According to Johnson, appellant was looking
directly at him as he tossed the object out of the car.  Johnson immediately recovered the
object, a baggie containing a substance he believed, based upon its color and appearance,
to be methamphetamine.  The officer then placed appellant under arrest and released
Williams with a verbal warning.  
	Back at the station, Johnson "field tested" the substance he recovered from the crime
scene and obtained a positive result for methamphetamine.  Johnson also field tested the
substance for the presence of cocaine and obtained negative results.  After performing the
field tests, Johnson placed the controlled substance in a sealed envelope and put the
envelope in the evidence locker at the police department.  Ruben Lemon, another
Brownfield police officer, retrieved the substance from the locker and transported it to the
Department of Public Safety's Crime Lab, where the DPS lab technician analyzed it and
determined the substance weighed 1.37 grams and contained cocaine.  Johnson, Lemon,
and the DPS lab technician also confirmed the cocaine admitted into evidence as State's
Exhibit 1 had not been tampered with in any way since their last contact with it.  
	On cross-examination, Johnson explained the field test was utilized "to verify there
was a controlled substance, and not necessarily which type, but that it [was a controlled
substance]."  Further, he testified the field tests were not scientifically proven, nor were they
100 percent accurate.  Indeed, Johnson conceded the incident involving appellant was not
the first in which the field test indicated a substance was methamphetamine, when forensic
analysis proved it to be cocaine instead.  Lemon explained on direct examination that
unknown substances are sent to the lab because field tests are sometimes wrong. 
Likewise, the DPS lab technician testified field tests sometimes provide false positive
results on unknown substances.  He attributed the inaccurate results to "the experience of
the officer" conducting the test, an invalid test kit being used, or the existence of
contaminants in the substance being tested.
	By his first issue, appellant maintains the evidence is factually insufficient to
establish the cocaine introduced into evidence at trial was the same substance Johnson
recovered and initially identified as methamphetamine. (3)  According to appellant, for the
substance the crime lab tested as positive for cocaine to be the same as the substance that
Johnson recovered on the roadside and tested at the police department, Johnson's field
tests would have had to result in not only a false positive for methamphetamine, but also
a false negative for cocaine.  Because that inference is not supported by any credible
evidence, it follows the jury's finding, implicit in the guilty verdict, that the substances were
one and the same is clearly wrong and manifestly unjust.  We disagree. 
	At the outset, we note Johnson originally arrested appellant for possession of a
controlled substance, methamphetamine.  However, after the crime lab's analysis indicated
the substance at issue was, instead, cocaine, a Terry County Grand Jury returned a true
bill of indictment against appellant for possession of a controlled substance, cocaine.   We,
therefore, measure the sufficiency of the evidence against the elements of the offense of
possession of a controlled substance, cocaine, as defined by a hypothetically correct jury
charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997).  
	Next, in reviewing a challenge to the factual sufficiency of the evidence, we begin
with the assumption the evidence is legally sufficient.  Santellan v. State, 939 S.W.2d 155,
164 (Tex.Cr.App. 1997).  We must then view all the evidence without the prism of "in the
light most favorable to the prosecution."  In doing so, we ask whether a neutral review of
all the evidence, both for and against the finding, demonstrates the proof of guilt is so
obviously weak as to undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v.
State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000).  We must also remain cognizant of the
factfinder's role and unique position-one the reviewing court is unable to occupy.  Id. at 9. 
Indeed, it is the jury that accepts or rejects reasonably equal, competing theories of a case. 
Goodman v. State, 66 S.W.3d 283, 285 (Tex.Cr.App. 2001).  Finally, a decision is not
manifestly unjust as to the accused merely because the factfinder resolved conflicting views
of evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex.Cr.App. 1997).
	The jury determines the credibility of the witnesses and may believe all, some, or
none of the testimony.  Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App. 1991).  It
follows the jury was entitled to discount the results of the field tests and to find as credible 
the DPS lab technician's testimony that his forensic analysis of the substance determined
it contained cocaine, not methamphetamine.  Our review of the record, including an
examination of the videotaped recording of the stop, does not uncover any great weight of
evidence contradicting the finding made by the jury in this case, nor does the jury's verdict
otherwise shock the conscience of this Court.  See Thompson v. State, 54 S.W.3d 88, 97
(Tex.App.-Tyler 2001, no pet.).  Therefore, we conclude the evidence is factually sufficient
to support the jury's finding that appellant possessed cocaine as alleged in the indictment. 
Appellant's first issue is overruled.
	  In his second issue, appellant contends the trial court abused its discretion in
denying his motion for new trial based upon newly discovered evidence of innocence.  We
disagree.  We review the denial of a motion for new trial based upon newly discovered
evidence under an abuse of discretion standard of review.  Lewis v. State, 911 S.W.2d 1,
7 (Tex.Cr.App. 1995).  Motions for new trial based upon newly discovered evidence
traditionally lack favor with the courts and are viewed with great caution.  Drew v. State, 743
S.W.2d 207, 225-26 (Tex.Cr.App. 1987).  A criminal defendant is entitled to a new trial if
the record reflects: (1) the newly-discovered evidence was unknown to him at the time of
trial; (2) his failure to discover the evidence was not due to his want of diligence; (3) the
evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching;
and (4) the evidence is probably true and would probably bring about a different result. 
Boyett v. State, 692 S.W.2d 512, 516 (Tex.Cr.App. 1985).
	In support of his motion for new trial, appellant presented the affidavit of Kavin
Nolan.  According to the affidavit, after the trial, Kavin was approached by Williams, who
told him it was he, not appellant, who possessed the controlled substance.  At the hearing
on the motion for new trial, however, Kavin testified Williams told him neither he nor
appellant possessed any drugs on the night of the offense.  Appellant testified at the
hearing that Willie Nolan and Kavin related to him conversations with Williams in which
Williams inculpated himself and exculpated appellant.  Like Kavin, however, Willie, at the
hearing on the motion for new trial, denied making statements to appellant regarding
Williams's admission.  Finally, appellate counsel for appellant testified about a conversation
he had with Willie, in which Willie described a conversation he had with Williams at the
Terry County Jail.  According to appellate counsel, Williams admitted to Willie that it was
he who tossed the drugs on the ground after being stopped by police, and that he felt
remorse over appellant being charged with the offense.  In response, the State called
Williams who denied possessing any drugs on the night of the offense and making
incriminating statements to Willie and Kavin.  Finding that the evidence did not "[rise] to the
level contemplated by the courts in newly discovered evidence" cases, the trial court denied
the motion for new trial.
	Assuming arguendo appellant sufficiently proved the first three elements of the  four-part test for establishing his entitlement to a new trial, we are not persuaded he
demonstrated the last.  The "probably true" requirement means the trial court must
determine the whole record presents no good cause to doubt the credibility of the witness
whose testimony constitutes new evidence, either by reason of the facts proven at the trial
or by the controverting affidavits on the motion, or otherwise.  Jones v. State, 711 S.W.2d
35, 37 n.4 (Tex.Cr.App. 1986). 
	Both of appellant's witnesses at the hearing on the motion for new trial denied the
statements appellant attributed to them regarding Williams's inculpating assertions. 
Therefore, the only remaining evidence presented to establish someone else was
responsible for the controlled substance he was convicted of possessing was the hearsay
testimony of appellant and his attorney. (4)  Moreover, at the hearing Kavin disclosed he had
convictions for delivery of marihuana, robbery, and forgery.  Likewise, the record reveals
Willie had at least two final felony convictions.  Based upon the authority of the trial court
to judge the credibility of the witnesses and the weight to be given their testimony, we
conclude it may have properly found the "new evidence" appellant presented as a basis for
the motion for new trial was probably not true.  The trial court did not abuse its discretion
by denying appellant's motion for new trial.  Appellant's second issue is overruled.        
	By his final issue, appellant maintains the trial court assessed an illegal and void
sentence.  The State, with commendable candor, concedes the trial court ran afoul of the
requirements of the habitual offender statute.  See generally Tex. Pen. Code Ann. § 12.42
(Vernon 2003).  That statute provides:
	If it is shown on the trial of a felony offense other than a state jail felony . . .
that the defendant has previously been finally convicted of two felony
offenses, and the second previous felony conviction is for an offense that
occurred subsequent to the first previous conviction having become final, on
conviction he shall be punished by imprisonment in the institutional division
of the Texas Department of Criminal Justice for life or for any term of not
more than 99 years or less than 25 years.

§12.42(d).  A previous conviction for a state jail felony may not be used for enhancement
purposes under the habitual offender statute.  § 12.42(e).  In this case, the record reveals
one of the convictions upon which the State relied for enhancement purposes was a state
jail felony.  Because the possession of a controlled substance conviction appellant received
was a third degree felony, the maximum range of punishment to which appellant could have
been subjected was the second degree felony range of punishment.  § 12.42(a)(3). 
Because the trial court's 25 year sentence exceeds that range, it is illegal and, therefore,
void.  See Ex parte Pena, 71 S.W.3d 336, 340 n.2 (Tex.Cr.App. 2002).  Appellant's third
issue is sustained.
	Accordingly, the judgment of conviction is affirmed; that portion of the judgment of
the trial court regarding punishment is reversed and the cause is remanded for a new trial
on punishment.  Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2003); see State
v. Hight, 907 S.W.2d 845, 846 (Tex.Cr.App. 1995).

							Don H. Reavis
						    	    Justice


Do not publish.  
1. Tex. R. App. P. 47.2(a).
2. Donald Ray Williams is not related to appellant.
3. Although appellant couches the issue in terms of "a glaring breach in the chain of
custody," he concedes the State "ostensibly" established the beginning and end of the
chain.  Where the State makes such a showing, any gaps in between affect the weight and
not the admissibility of the evidence.  Blackmon v. State, 830 S.W.2d 711, 713
(Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).  In the context of his factual sufficiency
challenge, appellant does not contest the admissibility of the controlled substance so much
as the weight the jury was entitled to give the witnesses' testimony regarding the
inaccuracies of field tests.
4. We do not, by this decision, impugn appellant's attorney's credibility.  Indeed, he
was placed in the precarious position of impeaching his own witnesses at the hearing on
the motion for new trial.  We simply conclude the court did not abuse its discretion in
finding nothing believable about those witnesses' testimony.  
