Affirmed as Modified and Opinion Filed January 26, 2015




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01482-CR

                             ERICK EUGENE FORD, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1355893-N

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Francis
       A jury convicted Erick Eugene Ford of possession with intent to deliver four grams or

more but less than 200 grams of heroin, and the trial court assessed punishment, enhanced by a

prior conviction, at twenty years in prison. In two issues, appellant challenges the sufficiency of

the evidence to support his conviction. For reasons set out below, we conclude the issues are

without merit. On our own motion, we modify the trial court’s judgment to make it conform to

the record and affirm the judgment as modified.

       Dallas police executed a search warrant at a south Dallas duplex where police suspected

heroin was being sold. On arrival, the officers announced “police” and then heard “a lot of

running” inside. The front door was barricaded with a cage. It took officers about one minute to

pry open the cage and “slam” the front door to gain entry. Inside, three men were already lying
on the floor; a fourth man, identified as appellant, was coming out of the bathroom. After

securing the house and taking the men outside, Detective Julio Ortiz went into the bathroom and

saw what he believed to be about ten heroin capsules floating in the toilet. Ortiz removed the

capsules and put them in a plastic bag. Police also recovered, among other things, a bottle of

Dormin, which is used to “cut” heroin, cash, a pocket knife with a capsule stuck to it, and a small

green baggie. They also found two baggies of pills on one of the men, Derek Rayford. One of

the baggies contained ninety-two pink/clear capsules.

       The officers field-tested the items they suspected to be drugs. The capsules recovered

from the toilet and from Rayford tested positive for heroin, and the substance in the green baggie

tested positive for cocaine. When he returned to the station, Ortiz noticed the capsules removed

from the toilet had “started changing.” He said they had begun to dry out, change colors, and

stick together, ultimately turning into a tar-like substance. Officers weighed the drugs, and Ortiz

said the total weight of the suspected heroin was 14.2 grams: 10.9 grams for the dry capsules and

3.3 grams for the tar-like substance.

       The items were sent to the Southwestern Institute of Forensic Sciences lab for testing.

Sarah Muhlberger, a drug chemist at SWIFS, said she received a baggie containing a “brown

jelly-like material” that appeared to have “dried up.”        The material contained heroin and

diphenhydramine and weighed 2.04 grams, including adulterants and dilutants. She did not see

any pieces of capsules or “anything like that” in the material.

       She also received a baggie containing ninety-two pink/clear capsules containing a brown

material in powder form. Muhlberger used twenty-five of the capsules for analysis and took a

sample of the brown material from each. The material contained heroin and diphenhydramine,

and the total weight of the material, including adulterants and dilutants, was 2.25 grams. That

material, combined with the weight of the jelly-like substance, totaled 4.2 grams, so Muhlberger

                                                –2–
did not test the contents of the remaining sixty-seven capsules. She explained that it is SWIFS

policy to analyze only enough evidence to reach a certain weight range for penalty purposes and

analyzing the contents of the remaining capsules would not have reached the next penalty weight

range. According to Muhlberger, the untested material inside the sixty-seven capsules was

consistent with the brown powder she did analyze, and the weight was eight grams. The total

weight of “everything” that was “[c]onsistent with heroin” was 12.2 grams. Muhlberger’s

written report, which detailed the items tested, the results, and the weight, was admitted into

evidence.

        Jeral Otaru, one of the men arrested during the raid, testified appellant and Rayford ran

the drug house. Otaru said he purchased heroin capsules from them; the cost was $3 for one

capsule or $5 for two capsules. He also ran errands for appellant and Rayford in exchange for “a

caplet or two of heroin.” Otaru said when the police arrived, appellant was “grabbing on his

pockets, you know, reaching for his bag.” Appellant ran to the back and Otaru heard “water

splash,” like a toilet flush.

        In reviewing a challenge to the sufficiency of the evidence, we examine 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, when analyzing the sufficiency

of the evidence, we “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. Direct and circumstantial evidence are treated equally. Id.




                                                –3–
       Appellant limits his sufficiency challenges to the proof of the weight of the heroin that he

possessed. In his first issue, he argues the evidence failed to establish a weight of four grams or

more because the chemist improperly included the weight of thirty-five capsules (the ten

capsules found in the toilet water that dissolved into a jelly-like mass and the twenty-five

capsules containing powder) when reaching the total controlled substance weight of 4.2 grams.

       To convict in this case, the State must show the defendant knowingly possessed the

controlled substance with intent to deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). A

controlled substance is defined as “a substance, including a drug, an adulterant, and a dilutant,

listed in Schedules I through V or Penalty Groups 1, 1–A, or 2 through 4.” Id. § 481.002(5). A

controlled substance includes the aggregate weight of any mixture, solution, or other substance

containing a controlled substance.     Id.   An adulterant or dilutant means any material that

increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical

activity of the controlled substance. Id. § 481.002(49). Heroin is listed in Penalty Group 1. Id.

§ 481.102(2).

       Assuming for purposes of this opinion that appellant is correct in arguing the dry capsules

themselves should not be included in the total weight, the evidence does not show they were.

The drug analysis test report was admitted into evidence. The report showed that “twenty-five

pink/clear capsules containing brown material” were used for analysis; the “material contained

heroin and diphenhydramine[,]” and the “total weight of the material, including adulterants and

dilutants, was 2.25 grams.” Thus, the report shows that only the “material” was weighed, not the

capsules. The report was signed by Muhlberger, and nothing in her testimony at trial was

inconsistent with the report.

       As for the brown jelly-like material, Muhlberger testified she did not notice any pieces of

capsule or “anything like that” mixed in the material. To the extent appellant suggests the State

                                               –4–
had to extrapolate out the weight of the “pre-moisturized” capsules which had dissolved into the

brown jelly-like material after appellant attempted to flush the capsules down the toilet, we

disagree. Any substance that is added to or mixed with a controlled substance, regardless of

when, how, or why that substance was added, may be added to the aggregate weight of the

controlled substance as an adulterant or dilutant. Seals v. State, 187 S.W.3d 417, 420 (Tex.

Crim. App. 2005). Detective Ortiz testified he removed the ten capsules from the toilet water

and placed them in a baggie. At the police station, he noticed the capsules “started changing”

and began drying out, changing colors, and getting stuck together. From this evidence the jury

could have rationally concluded the capsules dissolved in the toilet water and had become mixed

with the powder inside, resulting in the jelly-like substance. See Jones v. State, 235 S.W.3d 783,

785–86 (Tex. Crim. App. 2007) (concluding that when defendant’s accomplice poured liquid

methamphetamine into bottle of bleach hoping to destroy the drug during police pursuit, bleach

was “added to or mixed with” the controlled substance and could be added to aggregate weight);

Seals, 187 S.W.3d at 420 (concluding blood found mixed with methamphetamine in a vial was

properly included in aggregate weight as adulterant or dilutant). We conclude the dissolved

capsules became adulterants or dilutants and were properly added to the aggregate weight of the

controlled substance. We overrule the first issue.

       In his second issue, appellant asserts the evidence was insufficient to show the

“trafficking weight” of the heroin was at least four grams.        Here, he asserts the “indirect

evidence” showed the ten capsules and their contents, in “pre-moisturized” form, weighed only

0.9 grams. When added to the weight of the contents of the twenty-five capsules, 2.25 grams, he

asserts the “trafficking weight for the entire quantity of heroin was 3.15 grams.”

       It appears appellant is attempting to limit the aggregate weight of the drugs to the amount

the drugs would have weighed had he not attempted to destroy them by flushing them down the

                                               –5–
toilet. He has not cited a Texas case for his “trafficking weight” argument nor do we agree

appellant benefits from his attempt to destroy evidence any more than the defendant whose

accomplice attempted to do so by pouring the drugs into a bleach bottle. See Jones, 235 S.W.3d

at 786. Having previously concluded the dissolved capsules became adulterants or dilutants and

were properly added to the aggregate weight of the controlled substance, we conclude his

argument is without merit.

       Appellant also asserts “the weight of the 25 dry capsules, as reported by the laboratory,

was not rationally entitled to any weight, since the weight of the contents of the dry capsules was

not clearly established during the police investigation.” He directs us to State’s Exhibit 49,

which shows the ninety-two capsules on a scale displaying a weight of 13.4 grams, and

testimony from Ortiz that the capsules weighed 10.9 grams. It appears appellant is suggesting

the inconsistent amounts determined by the police render the lab analysis incredible, although he

does not explain how the police scales would affect the accuracy of the chemist’s testing

equipment. Muhlberger testified the lab’s “balances are very specific out to the 4th decimal

place of a gram.” Moreover, we note State’s Exhibit 49 includes the weight of the capsules, their

contents, and the plastic bag in which they were contained, while the lab weighed only the

material inside the capsules. We overrule the second issue.

       Finally, although neither party has raised the issue, our review of the record reveals an

error in the trial court’s judgment. Specifically, the record reflects appellant pleaded true to an

enhancement paragraph alleging a prior conviction, and the trial court accepted the plea and

found the paragraph true. The judgment, however, does not reflect the correct plea or finding.

       This Court has the authority to correct a judgment of the court below to make the record

“speak the truth” when we have the necessary data and information to do so. Asberry v. State,

813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). This authority is not dependent upon

                                               –6–
a request by a party nor does it turn on the question of whether a party has objected in the trial

court. Id. at 529–30. Accordingly, we modify the judgment to reflect a plea of true and a

finding of true to the first enhancement paragraph.

       We affirm the trial court’s judgment as modified.



Do Not Publish
TEX. R. APP. P. 47
131482F.U05

                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE




                                               –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ERICK EUGENE FORD, Appellant                        On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-01482-CR         V.                       Trial Court Cause No. F-1355893-N.
                                                    Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                        Justices Evans and Stoddart participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       To reflect a Plea of True to the 1st Enhancement Paragraph and a Finding of True
       to 1st Enhancement Paragraph.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered January 26, 2015.




                                              –8–
