r

                                                                            FILED IN
                                                                        COURT O[AfPEALS

                                                                        MAR    1~;1995
                                                                        MELANIE KEETON
                                                                        CLERK, 5th DISTRICT



       JUAN JESUS GABRIEL,                           Petition For Discretionary
       Appellant                                     Review from the Fifth
                                                     Court of Appeals
       NO. 0088-93,       v.
       THE STATE OF TEXAS,                            (Dallas County)
       Appellee

                                 OPINION ON APPELLANT'S
                           PETITION FOR DISCRETIONARY REVIEW

              Appellant was convicted of the unlawful possession with intent
       to deliver a controlled substance weighing 28 grams but less than
       200 grams.    V.T.C.A., Texas Health and Safety, Section 481.112(c).
       A jury assessed punishment at twenty-five years' confinement.           This
       conviction was affirmed by the Dallas Court of Appeals                 in a
       published opinion.        Gabriel v. State, 842 S.W.2d 328 (Tex.App. --
       Dallas 1992) • We granted discretionary review to determine whether
       the Court of Appeals erred in holding the evidence sufficient to
       show appellant possessed cocaine in an amount greater than 28 grams
       where only 2.237 grams in five of the fifty-four baggies containing
       the substance were scientifically tested.        We shall affirm.
              Appellant contends the evidence was insufficient to prove a
       quantity of cocaine in excess of 28 grams because the State was
       required to test enough substance to meet the alleged weight amount
       since the substances were packaged in different packages.            Police
       officer Spencer testified appellant was arrested with the cocaine
       in a    "trap house," an apartment used exclusively for selling
       illegal narcotics.         The State seized fifty-four baggies,         each
      containing    t~o   ~_,r   th&ee individual "rocks:" from on top of a
      dresser.      The chemist, Bunn, testified she tested five of the
      fifty-four baggies.         She did a spot test, a gas chromatograph, and
    ,.>' a mass spectrometry test on the contents of one baggie, did a spot
                                                          Gabriel - 2


weight of 2.237 grams.   The total weight of the contents of all 54
baggies was 35.2 grams.       Bunn concluded the contents of the
untested baggies was all cocaine.
     Viewing the evidence in the light most favorable to the
verdict,   we hold the State met its minimum burden of proof.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89,
61 L.Ed.2d 560 (1979): see Turner v. State, 805 S.W.2d 423, 427
(Tex.cr.App. 1991), cert. denied,_ u.s._, 112 s.ct. 202, 116
L.Ed.2d 162 (1991).   The State showed the random samples were the
alleged controlled substance, and the total weight of the substance
seized was within the range of that alleged.    It was rational for
the factfinder to conclude that identically packaged substances,
which appear to be the same substance,       are in fact the same
substance.   The manner of testing the substances by random sampling
goes only to the weight the jury may give to the tested substances
in determining the untested substance is the same as the tested
substance.   In addition, appellant could have conducted independent
chemical tests on all fifty-four baggies to show they did not
contain the same substance.   Article 39.14, V.A.C.C.P.
     The judgment of the Court of Appeals is affirmed.


                                    McCormick, Presiding Judge


(Delivered March 8, 1995)
En Bane
Publish
JUAN JESUS GABRIEL, Appellant
                                             Petition for Discretionary
NO. 0088-93            v.                    Review from the Fifth
                                             Court of Appeals
THE STATE OF TEXAS,                          [DALLAS County]
Appellee

                  CONCURRING OPINION ON APPELLANT'S
                  PETITION FOR DISCRETIONARY REVIEW

     Would that every issue this Court exercised its discretion to
review were as simple and straightforward as the plurality believes
this one to be!   The reality is, of course, that issues that simple
are not worth this Court's time and effort, since, presumably, the
various courts of appeals can be trusted to resolve them without
our interference.     We granted discretionary review in this cause,
however, precisely because the parties raise a difficult and impor-
tant issue, likely to recur, "which has not been, but should be,
settled by the Court of Criminal Appeals."        Tex.R.App.Pro., Rule
200(c) (2).   We fail to honor our duty to the jurisprudence of the
State when we treat issues momentous enough to attract our atten-
tion in the first place with such short shrift.      We do a disservice
to the bench and bar, and show nothing short of disrespect for the
parties themselves, when we ignore the complexity of hard issues,
squarely presented and well briefed, such as that raised here.
     Ultimately I agree with the Court's disposition today.       But I
am far less certain than the plurality that a rational jury could
find beyond a reasonable doubt that various substances are the same
simply because they "appear to be" so, and are "identically pack-
aged."   Slip op. at 2.     To say, moreover, that appellant could have
tested all of the substance to prove it was not all the same smacks
of unconstitutional burden shifting.       ~-   I write to explain why
on the facts of this case I reach the sam·e conclusion as the plu-
rality despite these concerns.

                                    I·
     Appellant was arrested in what was described at trial as a
GABRIEL             Concurring Opinion on Appellant's                 -2-
                    Petition for Discretionary Review



experience as an undercover narcotics investigator, that drugs were
sold from the apartment.         And indeed, a confidential informant had
purchased a substance at that location that police had "verified"
to be cocaine.          In executing the search warrant, officers discov-
ered the door to the apartment was barricaded with a wood block,
another characteristic of a "trap house." On the top of the dress-
er officers found fifty-four small baggies, each containing several
"rocks" of what they suspected was crack cocaine, and a loaded pis-
tol.    A field test proved positive for cocaine, although one of the
officers conceded that such "spot" tests are not conclusive.
       The suspected crack cocaine was forwarded to the forensic lab,
where it was examined by forensic analyst Andrea Bunn.         On her di-
rect examination Bunn testified:
       "Q.  Okay.   Could you briefly describe what type of
       analysis did you perform?
       A.   There were three tests that were performed on the
       contents of [the fifty-four baggies], one: a color test
       or a spot test. It's a presumptive test used to deter-
       mine what might be present in the substance. A second
       test is a gas chromatograph mass spectrometry test, which
       specifically identifies what chemical is present, and the
       third test, a gas chromatograph test, which helps in the
       quantitating, or telling how much of a chemical is pres-
       ent.
       Q.   Ma'am, the last two tests that you mentioned, are
       these done with special scientific equipment?
       A.   Yes.
       Q.   Okay.       And what did your analysis show, ma'am?
       A.   My analysis showed that there was cocaine present in
       the zip lock plastic bags.

       *    *       *
       Q.   Okay. Mrs. Bnnn, could you briafly describe -- your
       analysis showed that it was cocaine. How much -- could
       you describe how much cocaine or what percentage of co-
       caine you found?
       A.   In one of the zip lock plastic baggies that I ana-
       lyzed, where three tests were performed, the three that
       I mentioned. the scot test. the aas chrnm~~nnr~nh m~~~
GABRIEL         Concurring Opinion on Appellant's                -3-
                Petition for Discretionary Review



     and the gas chromatograph test. on one of the bags, the
     amount of cocaine found was six hundred and sixty-four
     milligrams, ninety-nine percent, and the total weight of
     that material was six hundred and seventy-one milligrams.
     On the second bag, the amount of seven hundred and twen-
     ty-five milligrams, ninety-nine percent, and the total
     weight of the material was seven hundred twenty-five mil-
     ligrams. On two additional bags, I did just a spot test
     on the two, and that indicated to me that there was co-
     caine present in comparison with the others that -- the
     zip lock plastic bags that I had analyzed. The total
     weight of the hard off-white material in all fifty-four
     zip lock plastic bags was thirty-five point two grams.
     Q.   Ma •am, is thirty-five point two grams an amount
     greater than twenty-eight grams but less than two hundred
     grams?
     A.    Yes, it is.
     Q.   Okay. Mrs. Bunn, based on your analysis that you
     conducted, your scientific analysis, your training, your
     experience in doing this type of work, did you have or
     did you form an opinion about the remainder of the bags
     that you did not actually test? Did you form an opinion
     as to what those substances were?
     [Objection overruled]
    A.   In my opinion, from my analysis of the other five
    Dags, tha fact that all the material in the rest of the
    bags appeared to be the same, my opinion there is cocaine
    present."
On cross-examination the following colloquy occurred:
     "Q. What was the total amount, what was the total weight
    of the substance that you identified as cocaine, that you
    scientifically tested?

     *     *    *
    A.                Two point two three seven grams.
    Q.   Okay. So that is less than twenty-eight grams, is
    that correct?
    A.     Correct.
    Q.   So the remaining thirty, approximately thirty-three
    grams, you did not test, is that correct?
    A.     Correct.
    Q.   All right. So that may be cocaine, may not be co-
    caine, is that correct?
    A.     It's possible, yes.
GABRIEL          Concurring Opinion on Appellant's               -4-
                 Petition for Discretionary Review



     stance that is submitted to the institute or just to do
     a portion of it?
     A.    As to the deciding what to do, it's decided, ba-
     sically, by funding. Because of the cost of doing the
     analysis, it's decided that we can't afford to do all of
     them.
     Q.   It's a money consideration?
     A.   Correct.

     *    *      *
     Q.   Okay. If -- the basis of your opinion as to the re-
     mainder of the substance that was submitted to you is
     based on the fact that you looked at it: it appeared to
     be the same substance that you analyzed, is that correct?
     A.   Correct.

     *    *      *
     Q.   Okay. All came from the same source, so you are
     assuming that the one was cocaine and the other looks
     like it, so it's going to be cocaine too?
    A.   Right.   I'm saying that of the fifty-four, I did
    five of them, and those five was (sic) cocaine, and from
    -- in my opinion, it's cocaine, the rest of it.
    Q.    Right. there is no --· other than that, there is no
     scientific basis to your opinion?
    A.   There is a scientific basis in the sense of statis-
    tics that it is cocaine."
Back on re-direct examination, Bunn continued:
    "Q. First of all, if a Defendant, a person charged with
    a crime, wants to have all the drugs fully analyzed, you
    would do so at their request, is that not correct?
    A.    Correct.

     *    *      *
    Q.   Now, ma'am, you stated earlier that, you know, your
    scientific opinion, you believed the other materials, the
    other ones that you did not test, to be cocaine also?
    A.    Yes.
    Q.    In forming that op1.1uon, ma'am, besides just the
     fact that you had tested the other five, in forming that
     opinion, did you take into account the consistency of the
     other -- other -- what you believed to be the other co-
     caine? Did you take into account the size, the appear-
     ance, the whole packaae?
GABRIEL           Concurring Opinion on Appellant's                  -s-
                  Petition for Discretionary Review



For all practical purposes, this was Bunn's whole testimony.
     A three judge panel of the Dallas Court of Appeals held the
foregoing evidence sufficient to prove beyond a reasonable doubt
that appellant possessed cocaine in an aggravated amount, that is,
an amount more than 28 but less than 200 grams.      V.T.C.A. Health &
Safety Code §481.112(c) and (d)(l).        See Gabriel ..., • State, 842
S.W.2d 328, at 332-33 (Tex.App. -Dallas, 1992).         Justice Kaplan
dissented.      ~.,   at 333-35.   Apparently finding no Texas prece-
dents, both the majority and the dissenter below cite cases from
Illinois and Florida.       The gist of the disagreement seems to be
what significance to give to the fact that the substance in the
present case was found in fifty-four separate receptacles.           The
majority held, in effect, that because the substance was apparently
homogeneous, the State could establish that a random sample was
cocaine, and that by extrapolation from that sample, the jury could
find beyond a reasonable doubt that the whole was what the sample
proved to be.    Justice Kaplan disagreed, believing that the better
reasoned caselaw from those jurisdictions that have addressed the
question allow extrapolation from random sampling only where a ho-
mogeneous substance is found in a single receptacle.
     In his petition for discretionary review, appellant argues
that similarity in appearance and texture are not enough to justify
jury extrapolation from a sample to the whole with the requisite
degree of confidence,     ~:   beyond a reasonable doubt.   We granted
his petition to address this question.     Rule 200(c) (2), supra.   We
should at least examine the cases from other jurisdictions that the
court of appeals invoked, as !\fell as other cases recently decided
that the parties call to our attention.

                                   ll·
GABRIEL         Concurring Opinion on Appellant's                             -6-
                Petition for Discretionary Review



ered to officer at same time; twelve field-test positive for LSD,
and are shown to be homogeneous; then six more prove conclusively
to be LSD; held admissible to show all 89 tablets are LSD) ; People
v. Yosell, 53 Ill.App.Jd 289, 11 Ill.Dec. 184, 368 N.E.2d 735
(1977) (evidence sufficient to prove requisite amount, where one
tablet from each of ten baggies found in single paper bag tested
conclusively   for   barbituric   acid);     People     v.     Kaludis,       146
Ill.App.Jd 888, 100 Ill.Dec. 382, 497 N.E.2d 360 (1986) (conclusive
test on random sample of pills found in single bag sufficient to
prove requisite amount of methaqualone, where pills were all same
size, shape, color and density, and each marked "Lemmon 714 11 ) .
     Where suspected contraband is found in separate receptacles,
however, courts have generally required that at least a sample from
each receptacle be tested before a jury can say with a level of
confidence beyond a reasonable doubt that all of the substance, or
at least enough of it to establish the jurisdictional amount, con-
tains that alleged contraband.    See People v. Yosell, supra; People
v. Games, 94 Ill.App.3d 130, 49 Ill.Dec. 666, 418 N.E.2d 520 (1981)
(chemist's testimony that one of two bags proved to be cannabis,
and that both bags together weighed requisite amount, not suffi-
cient to establish requisite amount was cannabis): People v. Ayala,
96 Ill.App.Jd 880, 52 Ill.Dec. 446, 422 N.E.2d 127 (1981) (conclu-
sive test of sample of substance taken from only one of two bags,
both of which had field-tested positive for heroin, presents infer-
ence sufficient to establish proof by a preponderance of evidence
that both bags contained heroin; but inference insufficient as a
matter of law to constitute proof beyond a reasonable doubt):
People v. Hill, 169 Ill.App.3d 901, 120 Ill.Dec. 574, 524 N.E.2d
604, at 611 (1988) ("Where separate bags or containers of suspected
druas are seized. a samnle from each   bao   or   r.nnt'.a i n~r mn~~:t' h~ l"'nn-
GABRIEL           Concurring Opinion on Appellant's                       -7-
                  Petition for Discretionary Review



bag test conclusively for powder cocaine; even though contents of
all 92 packets look alike, evidence held insufficient to establish
requisite amount); Campbell v. State, 563 So.2d 202 (Fla.App. 3
Dist. 1990) (requisite amount to show delivery offense not esta-
blished "where chemist only tested one or two heroin capsules found
in a change purse."); People v. Maiden, 210 Ill.App.3d 390, 155
Ill.Dec. 120, 569 N.E.2d 120 (1991) (evidence insufficient to prove
requisite amount where all three bottles of suspected PCP field-
test positive, but only one subjected to test that conclusively
establishes PCP); People v. Young, 220 Ill.App.3d 488, 163 Ill.Dec.
290, 581 N.E.2d 241 (1991) (even though three baggies and numerous
paper packets all found in one paper bag, evidence insufficient to
show requisite amount where only one baggie and one packet tested
and shown to be powder cocaine); but see State v. Riley, 587 So.2d
130 (La.App. 2 Cir. 1991) (testing of only six of 33 baggies of
white powder    ~ubstancs   all found in trash can enough to show all 33
are cocaine).
     Nevertheless,    the courts that have addressed the specific
question have held that only a random sample of crack cocaine need
be tested to establish the requisite amount, whether found in one
receptacle or in individual packets.         Bond v. state, 538 So.2d 499
(Fla.App. 3 Dist. 1989) (testing of only one of 139 small baggies
sufficient to show all are "rock" cocaine, because, unlike powder
cocaine, which resembles many other substances, "rock" cocaine is
homogeneous,    like similar-looking pills); State v.           Meeks,   552
N.E.2d 328     (Fla. App.    3 Dist. 1989)    (same as   liQ.ng);   state v.
Ballom, 562 So.2a 1073 (La.App. 4 Cir. 1990) (testing of four of
1095 baggies of "rocks" of suspected cocaine all found in single
paper bag sufficient to show all are cocaine, since "[t]here is no
                                                                                  •


GABRIEL                     Concurring Opinion on Appellant's               -a-
                            Petition for Discretionary Review



all thirty-one. rocks contained cocaine."); State v. Gipson, 856
S.W.2d 78 (Mo.App. E.D. 1993) (only one of numerous "rocks" found
 in cup tested and found to contain a cocaine base; but in view of
testimony from a "criminalist" that individual "rocks" of crack co-
caine are usually all cut from one "batch," evidence held suffici-
ent to show all "rocks" are cocaine).
            It appears from these cases that by and large it is sufficient
to extrapolate from a random sample of an apparently homogeneous
substance found in a single receptacle that the whole of the sub-
stance is the same.               In the case of contraband pills, as long as
they share size, weight, shape and scoring              characteri~tics,   they
may all be assumed to be the same as a random sample, whether found
in the same receptacle or in different receptacles recovered from
the same general location.              Under these circumstances it is gener-
ally found that the strength of the inference that the whole of the
substance, or a requisite part, is the same as the sample is suffi-
cient to support a jury conclusion to a level of confidence beyond
a reasonable doubt.              And as long as the strength of the inference
supports a jury conclusion beyond a reasonable doubt, the State has
met its burden of production of evidence sufficient to support the
verdict.          More evidence would advance the State's burden of persua-
§ign, of course.              But that is proverbial gravy; the State has al-
ready made out its prima facie case, producing sufficient evidence
to convince             ~     jury beyond a reasonable doubt.    See Rogers v.
state, 774 S.W.2d 247, at 256 (Tex.cr.App. 1989).               In the premises
it does not unconstitutionally shift the State's burden of proof to
suggest, as some of the cases do, that the defendant could have
tested the whole of the substance himself in order to meet and de-
feat the State's burden of persuasion, if he thinks such testing
__ J., ..   --------   .•
GABRIEL                           Concurring Opinion on Appellant's                                                       -9-
                                  Petition for Discretionary Review



pear to be the same, if other substances resemble the sampled sub-
stance.               Because any of a number of substances look like powdered
cocaine or heroin, the inference that the whole, or a requisite
amount, is the same as a sample taken from fewer than all of the
receptacles, or at least enough receptacles to show the requisite
amount, is not compelling enough to justify a jury finding to a
level of confidence beyond a reasonable doubt.                                        Under these circum-
stances, in order to satisfy its initial burden of production, the
State must conclusively test at least a sample of a sufficient num-
ber of the receptacles to prove up the requisite amount of contra-
band.               In these premises, it is not surprising that many courts
have observed that when the State has at its disposal a test that
can conclusively prove that a requisite amount of a substance was
contraband, but does not avail itself of that test, it has not made
out a prima facie case.                            E.g., People v. Ayala, supra; People v.
Ma1'd en, supra. *
              The question might be framed, then, as follows: Does                                                11   rock 11
cocaine have a sufficiently distinctive texture and appearance that
a sample from one receptacle that tests conclusive for cocaine will
justify the inference, beyond a reasonable doubt, that substances
of like texture and appearance found in other receptacles in close
proximity to the first are also cocaine.                               In Bond v. State, supra,
the Florida court opined that rock cocaine "more closely resembles
pills than powder."                       It therefore concluded that testing the con-

              *
      This observation puts me in mind of the former rule, now de-
funct, that in a veak circumstantial evidenca case, where the rec-
ord shows there was other evidence available to the State which
would have shed additional light on the facts, and the State neith-
er adduced that evidence, nor satisfactorily accounted for its
failure to do so, an appellate court will find there is a reason-
able doubt as a matter of law. E.g.,
I . . . ___   ---   •----   "" _ _ _ ,_
                                          Cruz v. State, 482 S.W.2d 264
                                 -'----...5-----•
                                          -'--~-   ._... _____ .&...   ..&...L.!   _ _ _ _ _ . . . . _....__   ---------
GABRIEL          Concurring Opinion on Appellant's               -10-
                 Petition for Discretionary Review



tents of one of 139 baggies of suspected rock cocaine was suffi-
cient to support the inference that all was cocaine beyond a rea-
sonable doubt.    This seems an unacceptably superficial analysis.
In State v. Ballom, supra, a Louisiana court observed that no evi-
dence showed that the 1095 baggies of rock cocaine "were not fun-
gible."   This analysis begs the question.    Without first deciding
whether a sample of some of the baggies of what appeared to be rock
cocaine was sufficient to meet the State's burden to produce evi-
dence that all of the baggies contained cocaine, the observation
that no evidence proved the contents of the baggies were DQt fungi-
ble only serves to shift the burden of proof.   The Missouri case of
State v. Gipson, supra, is more persuasive.     In Gipson:
     "the criminalist testified cocaine base is made by mixing
     cocaine powder with baking soda and water and cooking it.
     The resulting crystalline will fall to the bottom and is
     cut up into smaller chunks. This evidence is probative
     that the rocks were all cut from one 'batch' of rock co-
     caine, rather than separate sources. Also, by the time
     the criminalist looked at the rocks, they had broken into
     numerous chunks, unifona in color and consistency. The
     criminalist stated breakage was characteristic of rocks
     containing cocaine."
856 S.W.2d at 80.   We have no like testimony in the instant case,
nor any other evidence to show that rock cocaine has distinctive
characteristics not commonly shared by other substances.      It is
therefore more difficult to conclude that a sample taken from one
baggie that positively proves to be cocaine will support the infer-
ence that all fifty-four baggies contain cocaine to the level of
confidence beyond a reasonable doubt.
     Nevertheless, on the facts of this case I cannot conclude that
the court of appeals erred to hold the State met its burden to pro-
duce evidence sufficient to justify the inference beyond a reason-
able doubt that at least 28 grams of the substance contained in the
fifty-four baggies was cocaine.   The evidence does show that the
GABRIEL          Concurring Opinion on Appellant's                      -11-
                 Petition for Discretionary Review



•crack house." Three of the fifty-four baggies proved conclusively
to contain cocaine.     The police conducted a •spot" test on another
baggie, and the analyst, two more, which all showed positive for
cocaine.   Given these circumstances, the jury could infer that all
the similarly situated baggies contained the same substance, and
that that substance was cocaine.             Moreover, the strength of that
inference, while less than overwhelming, was at least sufficient
that I would not overturn the court of appeals majority's conclu-
sion that a rational jury could accept it as true beyond a reason-
able doubt.   Arcila v. State, 834 S.W.2d 357 (Tex.cr.App. 1992).
I therefore agree that the court of appeals' judgment should be af-
firmed.

                                      lll·
     So long as the State has satisfied its burden of production,
we may legitimately expect the accused to produce evidence, if any,
to counter that prima facie case.            Bunn testified that a lack of
"funding" limited her ability to test a sample from all fifty-four
baggies in this cause.       She added, however, that at a defendant's
request, she would analyze "all the drugs.•            It is doubtful that
due process requires the State to actually generate potentially ex-
culpatory evidence.     See san Miguel v. State, 864 S.W.2d 493 (Tex.
Cr.App. 1993).   Due process does require, however, that indigent
defendants be provided the resources to investigate the existence
of such evidence.     See   De   Freece v. State, 848 S.W.2d 150 (Tex.cr.
App. 1993); McBride v. State, 838 s.W.2d 248 (Tex.cr.App. 1992):
Article 26.05(a), V.A.C.C.P ••
     The plurality today obseL-ves that "appellant could have con-
ducted independent chemical tests on all fifty-four baggies to show
they did not contain the same substance."           Slip op. at 2.   Because
GABRIEL        Concurring Opinion on Appellant's               -12-
               Petition for Discretionary Review



right to access to whatever resources he needed to investigate and
counter, if possible, the State's prima facie case.   Nevertheless,
the plurality's naked observation is misleading, and could lead to
improper burden-shifting in the general run of cases.     See e.g.,
State v. Ballom, supra.   This kind of language should be eschewed.
     Because the plurality neglects its responsibility as a discre-
tionary review court to explain and illuminate, I join the judgment
of the Court, but not the plurality opinion.
                                     CLINTON, Judge
(Delivered: March s, 1995)
EN BANC
PUBLISH
Mansfield, J., joins this opinion.
Maloney, J., joins Parts I and II of this opinion and otherwise
joins the judgment of the Court.
JUAN JESUS GABRIEL, Appellant                        Petition for Discretionary
                                                          Review from the Fifth
NO. 0088-93        v.                                          Court of Appeals
THE STATE OF TEXAS, Appellee                                         [DALLAS County]

                    DISSENTING OPINION ON APPELLANT'S
                    PETITION FOR DISCRETIONARY REVIEW
     Today, we are presented with the following question of first
impression:      In cases alleging an aggravated offense of possession
of a controlled substance where the alleged controlled substance is
separately    packag~d,      mt'ist    ~he    State scientifically analyze a
sufficient number of the packages to establish the aggravated
amount? 1     Believing      the      question     should    be   answered    in   the
affirmative, I respectfully dissent.

                                             I.
     Following a raid on an alleged "trap house," Dallas police
officers seized 54 plastic baggies, each containing two or three
individual "rocks" of a substance suspected to be cocaine.                    A field
"spot test" conducted on a portion of the contents suggested the
substance was cocaine. 2 The baggies were then submitted to a State
forensic drug chemist Hho testified that the total weight of the
contents    of   the    54   baggies         was   35.2     grams.      The   chemist
scientifically tested the contents of three of the 54 baggies.                      On
the contents of one baggie the chemist conducted a spot test, a gas
chromatograph test, and a mass spectrometry test which revealed
cocaine, ninety-nine percent pure.                 On the contents of the two
other baggies,      the chemist conducted a                 spot test    and a     gas
chromatograph test which revealed cocaine, in both baggies, ninety-


     1    With a glib nonchalance ill suited to the importance of
the issue presented, the plurality avoids discussing this question.
Nor does the plurality discuss how either our courts of appeals or
the courts of foreign jurisdictions have answered this question.
The bench and bar and the peo:~>le of this State deserve more from a
court of last resort. Such an exceedingly poor attempt to address
this pressing issue serves only to undermine this Court's future
efforts to resolve important issues.
GABRIEL (Dissenting Opinion)                                                --2



nine percent pure. 3 The cocaine scientifically tested weighed less
than 28 grams.     From her visual observation of the similar texture
and coloring of the contents in the other baggies, as well as the
similar packaging, the chemist speculated that the untested baggies
also contained cocaine.       However, she admitted it was possible the
untested baggies did not contain cocaine because their contents
were not scientifically analyzed.               Appellant was convicted of
possession with the intent to deliver a controlled substance
weighing at least 28 but less than 200 grams. 4                Tex. Health    &

Safety Code Ann.    §   481.112(c).
     It is true that in reviewing the sufficiency of the evidence,
we must determine whether, after reviewing the evidence in the
light most favorable to the prosecution, any trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.   Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781,
2788-2789     (1979);     Langston    v.     State,   855   S.W.2d   718,   721
(Tex.cr.App. 1993); and, Reeves v. State,               806 S.W.2d 540,     543
(Tex.cr.App. 1990). When faced with a challenge to the sufficiency
of the evidence, we must insure that the State "has proven beyond
a reasonable doubt each and every element of the alleged crime and
not just     fprovidedl    a plausible explanation for the crime. " 5
Butler v. State, 769 S.W.2d 234, 237 (Tex.cr.App. 1989), overruled
on other grounds; Geesa v. State, 820 S.W.2d 154, 161 (Tex.cr.App.
1991); Wright v. State, 603 S.W.2d 838, 840 (Tex.cr.App. 1980);
and, Tex. Penal Code Ann.       §    2.01.    See also, In re Winship, 397
u.s. 358, 364, 90 s.ct. 1068, 1072 (1970).            Just as our role is not


     3    The chemist conducted a spot test on two of the remaining
baggies. Although the results of th 1t test suggt~sted the presence
of cocaine, a spot test is not conclusive. See, n. 2, supra.
     4       The indictment alleged, in pertinent part, that appellant
possessed:
GABRIEL (Dissenting Opinion)                                              --3



to become the "thirteenth juror, 11 reweighing the evidence and
substituting our own opinion for that of the jury, Wilson v. state,
863 S.W.2d 59, 65 (Tex.cr.App. 1993), so to, we must not allow our
deference to the verdict to relieve the State of its burden of
proving every element of the crime.               To do so would render us a
rubber      stamp     and   abrogate        our   constitutionally   mandated
responsibilities.

                                       II.
                                       A.
        In Tborpe y. State, 831 S.W.2d 548 (Tex.App.--Austin 1992, no
pet.), the Austin Court of Appeals addressed an issue similar to
the issue presented in the instant case.             Thorpe was convicted of
aggravated possession of cocaine and, on appeal, contended the
evidence was insufficient to prove he possessed at least 28 grams
of cocaine, including adulterants and dilutants.             }g., 831 S.W.2d

at 549.     The Court of Appeals recited the facts as follows:
             At trial the State introduced into evidence four
        exhibits that police officers had seized at appellant's
        apartment and that the State's chemist had tested for the
        presence of controlled substances.     Two of the tested
        exhibits, numbers 6 and 7, contained no controlled
        substances; however, the other two exhibits, numbers 4
        and 5 tested positively for cocaine.
             Exhibit number 4 included 101 small zip-locked bags,
        each of which contained a solid granular substance. The
        State's chemist t-ested 10 of these 101 small bags and
        found that the substance in each of the 10 small bags
        contained cocaine. The combined weight of all 101 small
        bags was 16.93 grams; however, there was no evidence as
        to the weight of the 10 small bags that the State's
        chemist tested. Exhibit number 5 consisted of a single
        bag containing two large chunks of solid material. The
        State's chemist determined that these chunks contained
        cocaine. The weight of exhibit number 5 was 27. oo grams;
        therefore, the aggregate weight of both exhibits 4 and s
        was 43.93 grams.
IQig.

        The State also presented testimony by the chemist who tested
the baggies.        While the chemist assumed the total weight of the
GABRIEL (Dissenting Opinion)                                     --4



     Relying upon our decisions in Cawthon v. State, 849 S.W.2d
346, 348-349 (Tex.cr.App. 1992); and Reeves v. State, 806 S.W.2d
540, 6 the Court held the evidence was      insufficient to prove
aggravated possession:
          Obviously, the State presented sufficient evidence
     of the identity of the named illegal substance; exhibits
     4 and 5 contained at least some cocaine. However, there
     is no evidence that the remainder of the substance was
     adulterants and dilutants. The state's chemist testified
     only that exhibits 4 and 5 could include adulterants.
     Under the teaching of Reeves and Cawthon, this is not
     sufficient "Absent facts to show that the remainder of
     the material consisted of substances intended to increase
     the bulk or quantity of the final product, (crack
     cocaine], it cannot be said that the remainder was an
     adulterant or dilutant."     Reeves, 806 S.W.2d at 544
     (emphasis added). Even if we assume, therefore, that the
     State's evidence was sufficient to establish that
     exhibits 4 and 5 "contained" cocaine and adulterants and
     dilutants, there was absolutely no evidence that was all
     the exhibits contained. Thus, no rational juror could
     determine beyond a reasonable doubt that of the 43.93
     grams of substance seized in appellant's apartment, at
     least 28 grams was cocaine plus adulterants and
     dilutants; based on the evidence presented, it could have
     been more or it could have been less.

                          *      *     *
          Our conclusion also finds support in the Court of
     Criminal Appeals' analysis in Reeves and Cawthon.      In
     Reeves the State's expert testified that the entire
     contents of a bag containing amphetamine weighed 29.76
     grams. However, he also stated that he did not determine
     the weight of the amphetamine in the bag or the nature or
     weight of the other substances in the tab. The Court of
     Criminal Appeals held that the evidence was insufficient
     to prove delivery of more than 28 grams of amphetamine.
     Reeves, 806 s.W.2d at 543-45. In the present case, the
     state's expert testified that the entire contents of two
     exhibits containing cocaine weighed 43.93 grams.
     However, there was no testimony as to the weight of the
     cocaine in the exhibits, nor was there testimony as to
     the identity or weight of the other substances in the
     exhibits.
ThOrpe, 831 S.W.2d at 551 (emphasis in original).



    6     In Cawthon, 849 s.W.2d a'i: 348-349, and, Reeves, 806
S.W.2d at 542-543, we held that for aggravated drug cases where the
State contends the weight of the controlled substances includes
adulterants or dilutants, the State must prove not only the
existence of an illegal substance but also that the remaininq
GABRIEL (Dissenting Opinion)                                      --5



                                  B.
       The Court of Appeals' reasoning in ThOrpe is applicable to the
instant case.     Thorpe essentially holds that in cases alleging an
aggravated offense of possession of a controlled substance, the
State must conclusively prove through scientific testing that the
alleged controlled substance,      along with its adulterants and
dilutants, exist in an amount sufficient to raise the offense to an
aggravated level.    ~.,   831 S.W.2d at 548.   The holding in Thorpe
is sound and should be adopted by this Court.
       In the instant case,    the scientific testing conclusively
proved the presence of cocaine.        However, the amount tested was
less   ~    28 grams.   Therefore, absent conclusive proof through
scientific testing that the untested baggies contain a sufficient
amount of cocaine to elevate the weight to At least 28 grams, the
State has failed to prove an element of the offense.

                                 IV.
       In his concurring opinion, Judge Clinton relies on foreign
jurisdictions to arrive at the same holding as in Thorpe, i.e.,
where separate packages or containers of suspected drugs have been
seized, a sample of each bag or container must be conclusively
tested in order to prove that it contains a controlled substance.
Concurring op., pp. 8-9.     See also,    People v. Young, 581 N.E.2d
241, 247 (Ill.App. 1st Dist. 1991); People v. Miller, 578 N.E.2d
1065, 1067 (Ill.App. 1st Oist. 1991); People v. Maiden, 569 N.E.2d
120, 125-127 (Ill.App. 1st Dist. 1991); Campbell v. State, 563
So.2d 202, 202 (Fla.App. 3rd Dist. 1990); and, Ross v. State, 528
So.2d 1237, 1241 (Fla.App. 3rd Dist. 1988).      Thus, Judge Clinton
correctly concludes the ran<.lom sampling of the contents of the
baggies was clearly insufficient to identify the substances in all
of the baggies.    Concurring op., pp. 8-10.
GABRIEL (Dissenting Opinion)                                               --6



the circumstances of the seizure, the similar texture and color of
the substances,         the similar packaging of the contents of the
baggies, and the fact that the contents of some of the baggies
tested positive         for     cocaine,   permits the   inference that    the
remaining untested baggies also contain cocaine. 7 Concurring op.,
pp. 10-11.        This reasoning is deeply flawed; if one can not infer
that the untested baggias contain cocaint:! from the baggies that do
contain cocaine, then why may one infer that the untested baggies
contain cocaine from the fact that they were found in a crack
house?
       Although the circumstantial evidence noted by Judge Clinton is
highly probative of appellant's intent to possess the alleged
controlled substance, see, Branch v. State, 599 S.W.2d 324, 325-326
(Tex.cr.App. 1979), I do not believe that evidence concurrently
proves the identity of the substances because such evidence is
qualitatively distinct.            Consider an example:        a defendant who
possesses a substance knowing it to be cocaine is guilty of
posses~:don      of a c•::>ntrolled substance.   Martin v. State, 753 S.W.2d
384,       387   (Tex.cr.App.    1988).     By contrast,   a    defendant who
possesses a substance, believing it to be cocaine, but which is
actually baking soda, is not guilty of possession of a controlled
substance, even if he behaves in a manner consistent with one who
actually possess cocaine.             In both situations, the defendant 1 s




       7  The reliability of circumstantial evidence, rather than
scientific testing, to prove the identity of an alleged controlled
substance is undermlned by the Legislatl1.re 1 e: recognition that it is
not uncommon for a substance to be offered as a controlled
substance, appear to be a controlled substance, but in reality, be
an innocuous substance.      To address such a situation, the
Legislature enacted Tex. Health & Safety Code Ann. § 482.002(a),
which prohibits the delivery of a "simulated controlled substance."
GABRIEL (Dissenting Opinion)                                             --7


intent is evident from circumstantial evidence. 8              However, the
defendant's criminal     liability is entirely contingent on the
identity of the substance.
     As we noted in Stewart v. State, 718 S.W.2d 286, 289 (Tex.
Cr.App. 1986), the identity of a controlled substance is generally
determined through chemical analysis.        See   ~,    Garcia v. State,
473 S.W.2d 488, 490 (Tex.cr.App. 1971):       ~'Aguero      v. State, 298
S.W.2d 822, 824 (Tex.cr.App. 1957).          Similarly, Thorpe and the
cases from foreign jurisdictions make clear that without scientific
testing we cannot be certain that the contents of separate packages
or containers are identical. Consequently, circumstantial evidence
may not be relied upon to prove the identity of the alleged
controlled substance.

                                   v.
     In light of the foregoing, I would hold that when the alleged
controlled   substance   is   separately     packaged,   the    State   must
scientifically analyze a sufficient number of the packages to
establish the aggravated amount.        Without such a holding the State
is relieved of its burden of proving each element of the o.ffense.
     With these comments, I respectfully dissent.


                                         BAIRD, Judge


Overstreet, J., joins this opinion.
(Delivered March 8, 1995)
En Bane
Publish




    8     Undoubtedly, a defendant who intends to sell an innocuous
