                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00360-CR


DENA DARLENE GLASSCOCK                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1

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      A jury convicted Appellant Dena Darlene Glasscock of possession of

methamphetamine under one gram and assessed her punishment at twenty-four

months’ confinement and a $2500 fine.             The trial court sentenced her

accordingly. Appellant brings two points on appeal, challenging the sufficiency of

the evidence to support the verdict and the admission of evidence regarding the

usability of trace amounts of methamphetamine.         Because the evidence is
      1
       See Tex. R. App. P. 47.4.
sufficient to support the jury’s verdict and because the trial court committed no

reversible error, we affirm the trial court’s judgment.

Background Facts

        On October 5, 2010, Granbury Police Officer William Duckett stopped

Appellant for speeding. Appellant, who was the sole occupant of the vehicle, had

an invalid driver’s license, and a warrant had been issued for her arrest. Duckett

obtained Appellant’s consent to search the vehicle and found a backpack behind

the driver’s seat. The backpack held a propane torch lighter, a spoon, a pick,

razor blades, and a clear baggie containing a ―clear rock substance.‖

        After conducting field tests on the contents of the baggie, Duckett

concluded that the substance in the baggie was methamphetamine.                 Duckett

arrested Appellant but allowed her to make arrangements to have a friend

retrieve her vehicle in lieu of its being towed. Appellant asked Duckett to remove

the ―obvious stuff‖ from the vehicle before her friend arrived. Duckett interpreted

her comment as a reference to the ―drug paraphernalia‖ in the backpack. In a

later   lab   test,   the   residue   in   the   clear   baggie   tested   positive   for

methamphetamine, and Appellant was indicted for possession of a controlled

substance under one gram.

        A two-day trial began on July 25, 2011. Duckett testified that when he

conducted the field test on the contents of the baggie, the test returned a weak

result for methamphetamine. He stated that he then retested the contents and

received a stronger result for methamphetamine. Duckett also testified that he


                                            2
placed the evidence into evidence bags, transported the evidence to the police

department, and placed the evidence in the evidence locker for the evidence

custodian to retrieve.

      On cross-examination, however, Duckett stated that he could not identify

the substance in the baggie based on his initial field test. He also admitted that

he gave the baggie to Chris Weston, a backup officer who arrived at the scene to

assist Duckett, and that it was Weston who transported the baggie to the police

department and conducted the second test. After conducting the test, Weston

contacted Duckett and told him the result.       Duckett later went to the police

department, retrieved the evidence from Weston, sealed it, and then deposited it

into the evidence locker.

      The State also called William Chandley as an expert witness. Chandley

testified that he had a degree in chemistry and had worked for the Texas

Department of Public Safety as a forensic chemist for over twenty years.

Chandley testified that he retrieved the evidence submitted by Duckett from the

evidence vault, tested the contents of the baggie, and found a trace amount of

methamphetamine.         During cross-examination, Appellant’s trial counsel asked

Chandley whether a trace amount of methamphetamine was usable. Chandley

responded that it was. On redirect, the State asked Chandley to explain how a

trace amount of methamphetamine was usable.             Chandley’s response and

Appellant’s objections were as follows:




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             [CHANDLEY]: We get an awful lot of this type of evidence
      that’s trace in bags that—that are less than .01 grams. People
      collect these bags until they get several. In talking to confidential
      informants, the police officers—

                  [DEFENSE COUNSEL]: Judge, I’m going to object to
      hearsay.

                  THE COURT: Sustained.

            [STATE]: Without saying what somebody said, necessarily,
      what’s your understanding of how a drug user uses a trace amount
      of methamphetamine[?]

                    [DEFENSE COUNSEL]: Judge, I’m going to object that
      he doesn’t have personal knowledge, because he just said that he’s
      gotten this information from—thirdhand from officers that have talked
      to other people.

                  THE COURT: Overruled.

             [CHANDLEY]: Water is added to the bags, and that—that
      solution is passed down through three or four bags, and then it’s
      drawn up into a syringe, and then it’s injected. They’re not going to
      throw the bags away if there’s a trace amount of methamphetamine
      or cocaine in the bags.

      On recross examination, Appellant’s counsel asked Chandley whether

someone would have to have several bags with trace amounts to have a usable

amount.   Chandley testified that a trace amount from one bag was usable,

depending on ―how addicted you are.‖ The State called no additional witnesses.

Sufficiency of the Evidence

      Appellant phrases her first point as a factual sufficiency complaint but

acknowledges that there is no longer a factual sufficiency review in Texas




                                       4
criminal law.2     We therefore address Appellant’s first point as a sufficiency

complaint under the Jackson v. Virginia standard.3 In reviewing the sufficiency of

the evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.4

      The health and safety code provides that it is an offense to possess

methamphetamine.5 Unlike section 481.121, which requires a person to possess

a usable amount of marijuana in order to commit an offense,6 section 481.115

does not require that the person possess a usable amount of methamphetamine

in order to commit an offense; it appears to require only that the person possess

some amount of methamphetamine.7




      2
         See Brooks v. State, 323 S.W.3d 893, 905–06, 911 (Tex. Crim. App.
2010).
      3
       See id. at 911; Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979).
      4
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
      5
        Tex. Health & Safety Code Ann. §§ 481.102(6) (providing that
methamphetamine is a penalty group 1 substance), .115(a), (b) (providing that
unauthorized possession of a penalty group 1 substance of less than a gram is a
state jail felony) (West 2010).
      6
         Id. § 481.121(a).
      7
         Id. § 481.115(a), (b).


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      Appellant argues that Duckett’s contradictory testimony about who

performed the second field test and who took the evidence to the station

―seriously calls into question the chain of custody of the evidence and the

reliability of such evidence. A broken . . . chain of custody coupled with hearsay

testimony about a second field test leaves far more than a reasonable doubt

concerning the guilt of Appellant.‖ But the Texas Court of Criminal Appeals has

stated that ―[a]bsent evidence of tampering, issues regarding the chain of

custody bear on the weight, rather than on the admissibility, of evidence.‖ 8 And

the jury as the trier of fact determines the credibility of the witnesses and the

evidence and the weight to be given to each witness and to each piece of

evidence.9 Finally, in reviewing the sufficiency of the evidence, an appellate

court considers all the evidence, even improperly admitted evidence.10

      Duckett testified to two separate tests of the residue in the baggie. Both

tests revealed the presence of methamphetamine.

      Appellant was alone when she was pulled over by Duckett. The baggie

containing the methamphetamine residue was found in her vehicle.          Duckett

testified that he had tested the residue and that the result came back a weak

      8
       Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010), cert. denied,
132 S. Ct. 122 (2011).
      9
      Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
      10
        Clayton, 235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489–90
(Tex. Crim. App. 2004).


                                        6
positive for methamphetamine. Applying the appropriate standard of review, we

hold that the evidence is sufficient to support the jury’s verdict. We overrule

Appellant’s first point.

Admissibility of Testimony about Usability of Trace Amounts of Drug

      In her second point, Appellant argues that the trial court reversibly erred by

allowing Chandley to testify about how drug users could potentially use trace

amounts of methamphetamine because the testimony was outside his personal

knowledge and expertise. At trial, Appellant objected that the testimony was

hearsay. Appellant does not argue here, and did not argue below, that the trial

court’s admitting the hearsay testimony violated any of her constitutional rights.

      Accordingly, if we were to assume that the trial court erred by admitting the

testimony, we would nonetheless disregard the error because it would not affect

any substantial right of Appellant,11 given that whether she possessed a usable

quantity of methamphetamine was irrelevant because the law does not require

that the amount of methamphetamine possessed be a usable amount to

constitute an offense.12 We therefore overrule Appellant’s second point.



      11
       See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort
Worth 1998, pet. ref’d).
      12
        See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (b); see
also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).


                                         7
Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 29, 2012




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