Affirmed and Memorandum Opinion filed August 19, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00331-CR
                              NO. 14-13-00332-CR

                  JOSEPH EDWARD SPILLERS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 405th District Court
                           Galveston County, Texas
               Trial Court Cause Nos. 12CR0828 and 12CR0829

                 MEMORANDUM                      OPINION


      A jury convicted appellant Joseph Edward Spillers of burglary of a building
and possession of a controlled substance with intent to deliver. Appellant entered a
plea of true to two enhancement paragraphs. The trial court sentenced appellant to
confinement in the Institutional Division of the Texas Department of Criminal
Justice for five years for the burglary conviction and twenty-five years for the
possession conviction. The sentences were ordered to run concurrently. In each
case, appellant filed a timely notice of appeal. We affirm.

                                       BACKGROUND

      Sergeant Paul Hensley of the Santa Fe Police Department received a report
that someone was taking scrap metal from an unoccupied building. As Sergeant
Hensley approached the building, he saw an individual, later identified as
appellant, exit the building with scrap metal and load it into the back of a pickup
truck. After Sergeant Hensley spoke to the property owner on the phone, appellant
was placed in custody for burglary of a building.

      There was a passenger in the truck. Because the passenger did not have a
valid driver’s license the truck was scheduled to be towed. Prior to having the
vehicle towed, Sergeant Hensley conducted a vehicle inventory. The inventory
revealed a clear plastic bag holding eight smaller baggies, measuring one inch by
one inch, containing small white crystals. Based on his training and experience,
Sergeant Hensley believed the substance in the baggies to be methamphetamine.
After appellant was read his rights, he told Sergeant Hensley they were his drugs.

                                    CHAIN OF CUSTODY

       In his first issue appellant claims evidence of the methamphetamine seized
from his truck should have been suppressed on the grounds the chain of custody
was compromised. Appellant claims there is a seven-month “gap” in the chain of
custody. The issue was raised in appellant’s motion to suppress and following a
pre-trial hearing the trial court denied that motion. The issue was relitigated at
trial. The evidence was then admitted over appellant’s objection that the State
failed to establish the chain of custody prior to the lab’s receipt of the substance.



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      In determining whether a trial court’s decision is supported by the record, we
generally consider only evidence adduced at the suppression hearing because the
ruling was based on it rather than evidence introduced later. Rachal v. State, 917
S.W.2d 799, 809 (Tex. Crim. App. 1996). However, a trial court’s ruling on a
motion to suppress is not a final decree; it is an interlocutory decree that is subject
to revision at any time before the trial ends. Black v. State, 362 S.W.3d 626, 633
(Tex. Crim. App. 2012).       If the State raises the issue at trial, either without
objection or with subsequent participation in the inquiry by the defense, the
defendant has made an election to re-open the evidence, and consideration of the
relevant trial testimony is appropriate in our review. Rachal, 917 S.W.2d at 809.
Accordingly, we consider all the evidence relevant to whether the State established
the requisite chain of custody to admit the substance seized from appellant’s truck.

      It is within the trial judge’s discretion to determine the sufficiency of a
predicate, and, absent an abuse of discretion, we will not reverse the trial court’s
judgment. Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984). Without
evidence of tampering or impropriety, most objections regarding breaks in the
chain of custody go to the weight of the evidence, rather than its admissibility.
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Proof of the
beginning and end of the chain of custody is sufficient; a proponent of evidence
does not need to show a “moment-by-moment” account of the evidence to support
its proper admission. Shaw v. State, 329 S.W.3d 645, 654 (Tex.App.—Houston
[14th Dist.] 2010, pet. ref’d). See also Caddell v. State, 123 S.W.3d 722, 727–28
(Tex.—App.Houston [14th Dist.] 2003, pet. ref’d) (holding testimony by a lab
official explaining the evidence was sealed and properly labeled to show it was the
substance seized by officers established the chain of custody, even when nobody
testified to transporting the evidence to the lab).


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      At the pre-trial hearing on appellant’s motion to suppress, defense counsel
argued the substance seized from the truck had been lost or misplaced according to
the State’s motion seeking a continuance to have the substance tested. Brandon
Simms, Assistant District Attorney for Galveston County District Attorney’s
Office, informed the trial court that his motion for continuance stating the
substance had been “misplaced” was a “poor choice of words.” He stated the
evidence was still in the locker but had not been transported to the Texas
Department of Public Safety (“DPS”) lab. Simms said he had no reason to believe,
based on his discussions with the Santa Fe Police Department, that the seized
substance was ever outside a secure location within the police department.

      During trial, Sergeant Hensley testified he removed the bag containing the
substance from beneath the seat of the truck, placed it on the driver’s seat and took
a picture of it. He then secured it in the front seat of his patrol car. After Sergeant
Hensley left the scene with appellant, he booked appellant into the jail and took the
substance to the patrol room and tested it with a kit provided by the Santa Fe
Police Department to verify the substance was methamphetamine.               Sergeant
Hensley testified that he followed procedure for packaging the substance to send
to the lab by placing the case number, his initials, the suspect’s name, and the date,
on the envelope.     The envelope was sealed and Sergeant Hensley put a circle
around it with his initials and the date. This was done on March 16, 2012.
Sergeant Hensley testified there was a change to the envelope since he initially
sealed it. The DPS crime lab had opened the envelope on a side not taped,
removed the substance, tested it, placed the substance back in the envelope, and
resealed the envelope. DPS also added a label with a tracking number, the name of
the agency submitting the substance for testing, the date submitted, and a bar code.



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      Sergeant Hensley opened the envelope, by cutting along the top, and took
out a DPS crime lab submission form. Sergeant Hensley had retained a copy of the
form he filled out and he was able to authenticate the form in the envelope by
comparison. Sergeant Hensley then identified the substance in the envelope as the
same substance he placed into the envelope to be sent to DPS. He testified the
only alteration was by the DPS crime lab placing a series of numbers and a heat
seal across the top of the plastic bag. DPS opened the bag on November 27, 2012,
approximately eight months after Sergeant Hensley placed the substance in the
envelope to be sent to DPS. Sergeant Hensley testified that during that time
period, the substance was in the evidence locker at the Santa Fe Police Department.
The evidence had not been logged out.

      Sergeant Hensley testified on cross-examination that after he returned to the
station and field-tested the substance, the substance was weighed and he secured
the substance in the manila envelope.        According to Sergeant Hensley the
substance was logged into the evidence locker and dropped into a slot that goes
into a secured room and the detective division is responsible for transporting the
substance to be tested. Once the lab results are returned from DPS, Sergeant
Hensley testified, he completes his supplemental report.

      Amanda Ramos, a forensic scientist with the DPS, testified when evidence is
received by the lab, it is given a unique case number and bar code. Ramos stated
that she used the green evidence tape on the manila envelope to seal it after
opening it. On the tape were her initials and the date she closed the evidence,
November 27, 2012. Inside the manila envelope was a plastic bag with the DPS
case number, exhibit number, her initials, and the date. The plastic bag had been
heat-sealed. Inside that bag were eight smaller plastic bags. Four of those bags
were sealed with evidence tape and those were the four that Ramos tested. The

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case number, exhibit number, her initials, and the date they were sealed were on
those four bags. The four bags that were tested contained 1.29 grams. Ramos
testified that because the highest possible penalty is for more than one gram and it
would not change the penalty, the other four bags were not tested. Ramos testified
that other than the cutting of the bottom, there had been no tampering of the bag
from when she put her original markings on it. Ramos confirmed the heat seal that
she placed on the bag was still intact.

      In this case, the State established, through the testimony of Sergeant
Hensley, the substance seized from appellant’s truck was the same substance tested
by Amanda Ramos at the DPS lab. Although the substance was not sent for
testing for eight months, the record does not reflect the bags containing the
substance were tampered with during that time. Absent any proof of impropriety,
and “[w]ithout evidence of tampering, most questions concerning care and custody
of a substance go to the weight attached, not the admissibility, of the evidence.”
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997). When the State shows
the beginning and the end of the chain of custody, any gaps in between go to the
weight rather than admissibility, particularly if the chain of custody through to the
laboratory is shown. Gallegos v. State, 776 S.W.2d 312, 315–16 (Tex. App.—
Houston [1st Dist.] 1989, no pet.). As there was no evidence of tampering, any
gaps alleged by appellant went to the weight of the evidence, not its admissibility.
See id. We therefore conclude the trial court did not abuse its discretion in
admitting the evidence.       See Caddell, 123 S.W.3d at 727–28. Accordingly,
appellant’s first issue is overruled.




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                               AMENDMENT OF INDICTMENTS

         In his second issue, appellant claims both indictments were not properly
amended. The indictment in each case contained two enhancement paragraphs.
The first paragraph erroneously stated appellant was convicted in cause number
02CR1180 in the 405th District Court of Galveston County.               The court of
conviction for cause number 02CR1180 was the 10th District Court of Galveston
County. In each case, the State filed a motion to amend the indictment to correct
the first enhancement paragraph and the trial court granted the motion.

         Appellant relies upon the holding in Ward v. State, 829 S.W.2d 787, 794
(Tex. Crim. App. 1992), that the only effective means of accomplishing an
amendment is by interlineation — the actual, physical alteration of the face of the
charging instrument. In Riney v. State, 28 S.W.3d 561, 565–66 (Tex. Crim. App.
2000), the Court of Criminal Appeals overruled Ward and held physical
interlineation is not the only acceptable means of effecting an amendment to an
indictment. A written motion to amend the indictment containing the requested
amending language, granted by the trial court, is sufficient to accomplish an
amendment. See Nwosoucha v. State, 325 S.W.3d 816, 829 (Tex. App. — Houston
[14th Dist. 2010, pet. ref’d), citing Riney 28 S.W.3d at 565 (indicating State’s
motion and trial judge’s granting thereof constitute authorization of eventual
amendment of charging instrument pursuant to Texas Code of Criminal Procedure
article 28.10).

         In each of these cases, the trial court’s written order granting the motion to
amend the indictment contains the requested amending language. We therefore
conclude the indictments were properly amended and overrule appellant’s second
issue.



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       Having overruled both of appellant’s issues, we affirm the judgments of the
trial court.


                                      /s/       Marc W. Brown
                                                Justice


Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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