Affirmed and Memorandum Opinion filed December 31, 2015.




                                             In The

                        Fourteenth Court of Appeals

                                    NO. 14-14-00400-CR

                       ELADIO CASTRO NAJERA, Appellant
                                                V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 182nd District Court
                               Harris County, Texas
                           Trial Court Cause No. 1396108

                    MEMORANDUM                            OPINION


       Appellant Eladio Castro Najera was convicted of possessing less than one
gram of cocaine. Appellant raises two issues on appeal. 1                    In his first issue,

       1
          Appellant also raised a third issue complaining that the trial court failed to prepare and
file findings of fact and conclusions of law as required by Article 38.22 of the Code of Criminal
Procedure. We abated the appeal and ordered the trial court to make the required findings and
conclusions. The trial court subsequently made findings of fact and conclusions of law based on
the issues raised at trial and filed them with this Court. Therefore, appellant’s third issue is
moot.
appellant asserts that the trial court abused its discretion when it admitted into
evidence State’s Exhibits 4 and 5, a police evidence envelope and three small
baggies of cocaine, over his chain-of-custody objection. We overrule this issue
because (1) there was no affirmative evidence of tampering or impropriety; and (2)
the State introduced evidence to establish the beginning and the end of the chain of
custody. As a result, any gaps in the chain of custody go toward the weight to be
given the evidence, not its admissibility.

      In his second issue, appellant argues that the trial court erred when it denied
his request for an instruction to the jury under Article 38.22, section 6 of the Texas
Code of Criminal Procedure regarding the voluntariness of an oral statement he
made during his arrest. We overrule this issue because the evidence did not raise
an issue regarding the voluntariness of appellant’s confession. We therefore affirm
the judgment.

                                   BACKGROUND

      Houston police officer Marcus Wilson was working the night shift when he
heard the sound of a car collision behind him, on Telephone Road.             Wilson
approached the scene of the accident and observed a white Chevrolet Tahoe at the
back of a multi-vehicle collision. Wilson believed the Tahoe had caused the
collision when it rear-ended the car in front of it, beginning a chain reaction
accident that ultimately involved four vehicles.

      Wilson got out of his patrol car to begin his accident investigation when he
heard people yelling “he’s leaving.” Wilson saw the Tahoe back up and drive
away from the scene. Wilson got back into his patrol car, turned on his car’s
emergency lights and siren, and began pursuing the Tahoe. Wilson requested
back-up and continued pursuing the Tahoe onto Loop 610. Wilson and other
officers then followed the Tahoe onto Interstate 45. The Tahoe eventually stopped
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in a lane of traffic on Interstate 45.

       Wilson and the other officers initiated a felony traffic stop. Wilson ordered
the driver out of the Tahoe while he and eight or nine other officers had their guns
drawn. The driver—appellant—exited the Tahoe and Wilson ordered him to back
toward the officers with his hands raised.       Appellant complied, and Wilson
handcuffed him. According to Wilson, appellant was cooperative at all times, he
followed directions, and Wilson handled appellant alone from that point. Wilson
then moved appellant back behind Wilson’s patrol car where Wilson conducted a
search of appellant’s person, finding three small baggies of a white powdery
substance in a pocket of appellant’s pants. Wilson, without saying anything,
showed appellant the baggies. According to Wilson, appellant then said that “he
got it at the club, Alafys.” During appellant’s trial, Wilson explained that Alafys
was a club located a short distance away from the scene of the multi-vehicle
collision.

       After completing his search of appellant, Wilson placed appellant in the
patrol car and locked the three baggies into the patrol car’s center console lockbox.
Wilson then returned to the scene of the accident. Wilson field-tested the white
powder, and the result showed that the powder was presumptively cocaine. After
clearing the accident scene, Wilson transported appellant to the Houston Police
Department central jail.

       Having delivered appellant to the jail, Wilson testified that he next took the
three baggies to the narcotics division located in the same building. Narcotics
personnel weighed the white powder. Wilson filled out appellant’s charges and
“the narcotics paperwork for tagging purposes.” This paperwork included filling
out an evidence envelope (State’s Exhibit 4) by marking it with the unique case
number, placing the three baggies inside a larger bag, placing that bag inside the

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evidence envelope and sealing it, and then initialing and dating the envelope.
Wilson testified that a narcotics intake officer took the envelope from Wilson,
verified it with the charges, and placed the envelope into a narcotics division
storage lockbox where it would remain until it was transferred to the police
laboratory.

      Brittany Thomas was the Houston Forensic Science Center criminalist in the
controlled substance section who received the sealed evidence envelope prepared
by Wilson from centralized evidence receiving. Thomas testified that she initially
checked to verify that the envelope was sealed. According to Thomas, if the
envelope had not been sealed, she would have refused to accept it. Thomas
testified that this verification is standard procedure to maintain the integrity of the
evidence.     Thomas then checked the submission form against the itemized
inventory on the envelope to verify that it matched. She then opened the envelope,
in which she found three baggies of white powder suspected to be cocaine.
Thomas marked each baggie with the case number and her initials. Thomas then
performed two separate tests on the white powder and determined that the white
powder was cocaine. Once Thomas had completed her analysis, she resealed and
initialed the envelope, which then was returned to storage.           On the day of
appellant’s trial, Wilson retrieved the envelope from police laboratory storage and
personally brought it to the courtroom.

      Appellant testified during his trial. According to appellant, he stopped his
vehicle on the shoulder of Interstate 610, not in a lane of traffic on Interstate 45.
Appellant also testified that two police officers—not nine—ordered him out of his
vehicle at gunpoint. Appellant went on that he felt “kind of unsafe” when the
police were pointing their guns at him. Appellant also denied that Wilson was the
officer who arrested him, denied that the officer who did search him found any

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cocaine in his possession, and denied seeing any baggies of cocaine that night.
Finally, appellant testified that he was not aware that he had been charged with
possession of a controlled substance until after he was released from jail on his hit
and run conviction.

      The jury found appellant guilty of possession of a controlled substance,
namely cocaine, weighing less than one gram. The trial court sentenced appellant
to two years in prison, probated to five years of community supervision, and
imposed a $250 fine. This appeal followed.

                                     ANALYSIS

I.    The trial court did not abuse its discretion in admitting the cocaine
      despite possible gaps in the chain of custody because there was no
      evidence of impropriety.
      In his first issue, appellant argues that the trial court abused its discretion
when it admitted into evidence State’s Exhibits 4 and 5, an evidence envelope and
the cocaine. In support, appellant points to Thomas’s testimony that she did not
know: (1) where the evidence had been or who had handled it prior to the moment
she received the sealed envelope containing the evidence in the police crime
laboratory; or (2) who had handled the evidence or whether it had been tampered
with or altered after she tested it. Appellant also asserts that Wilson could not
identify the evidence envelope, and that Wilson testified he had not placed the
marks on the cocaine baggies and did not know who did. In appellant’s view, this
evidence demonstrates that the State did not establish a proper chain of custody,
and the trial court abused its discretion when it overruled his objection to the
admission of the evidence. We disagree.

      The sufficiency of an evidentiary predicate is within the trial court’s
discretion, and we will affirm the judgment unless the trial court abused that

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discretion. Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d) (citing Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App.
1984)). Objections regarding theoretical or speculative breaches in the chain of
custody go to the weight of the evidence rather than to its admissibility unless there
is affirmative evidence of impropriety. Caddell v. State, 123 S.W.3d 722, 727
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Lagrone v. State, 942
S.W.2d 602, 617 (Tex. Crim. App. 1997)). The State, therefore, is not required to
provide a moment-by-moment account of the whereabouts of evidence from the
moment it is seized until it is introduced at trial. Reed, 158 S.W.3d at 52. The
State instead must prove only the beginning and the end of the chain of custody.
Id.

      Appellant has not demonstrated that the trial court abused its discretion
when it overruled his chain-of-custody objection. Thomas’s testimony pointed out
by appellant is not affirmative evidence of a breach in the chain of custody. It is
instead the type of speculative or theoretical evidence of a breach that goes to the
weight of the evidence, not its admissibility. See Caddell, 123 S.W.3d at 727.

      Contrary to appellant’s contention, Wilson did identify State’s Exhibit 4 as
the evidence envelope that he filled out and into which he placed the three baggies
of cocaine he found in appellant’s pocket. Wilson also identified State’s Exhibit 5
as the evidence bag into which he placed the three baggies of cocaine he found in
appellant’s pocket. Although Wilson could not testify regarding who had written
the case number on the baggies, he positively identified them as the three baggies
of cocaine he had seized from appellant and delivered to the narcotics division
storage pending transfer to the police laboratory.

      In addition to Wilson’s testimony recounting his handling of the baggies of
cocaine, Thomas testified that (1) State’s Exhibit 4 was the sealed evidence

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envelope that she received from central evidence; (2) she opened the envelope; (3)
she removed State’s Exhibit 5; and (4) she found three baggies of cocaine inside.
Thomas further testified that she wrote the case number on each individual baggie.
This evidence is sufficient to establish the beginning and the end of the chain of
custody. See Reed, 158 S.W.3d at 52. Because the State introduced evidence
establishing the beginning and the end of the chain of custody, we hold the trial
court did not abuse its discretion when it overruled appellant’s objection and
admitted the cocaine into evidence.

      Appellant cites Easley v. State, 472 S.W.2d 128 (Tex. Crim. App. 1971), in
support of his argument that the State did not establish the chain of custody for the
cocaine. Appellant points out that, in Easley, (1) the arresting officer had placed
no identifying marks on the marijuana at issue in that case and could not positively
identify the marijuana during the defendant’s trial; (2) the marijuana had been
mailed to Austin for testing but someone in Austin had forwarded the marijuana to
a Dallas laboratory for testing; (3) the Dallas chemist who received the envelope
containing the marijuana could not testify that the envelope had not been opened
prior to receipt; and (4) there was no testimony or other evidence about what had
happened to the envelope in Austin. Id. at 129. The Court of Criminal Appeals
held that based on the combination of these circumstances, the State had not
established a proper chain of custody and reversed Easley’s conviction.           Id.
Appellant argues that the gaps in the chain of custody here are similar to those in
Easley, and as a result, we should reverse.

      We disagree that the facts of this case are similar to those in Easley. Here,
both Wilson and Thomas positively identified State’s Exhibits 4 and 5. Wilson
testified that Exhibit 4 was the evidence envelope he filled out and Exhibit 5 was
the evidence bag into which he placed the three baggies of cocaine prior to sealing

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them inside Exhibit 4. Wilson had previously field-tested the substance in the
baggies, and the results were positive for cocaine. During his trial testimony,
Wilson positively identified the three baggies as those he had seized from
appellant. Although Wilson could not identify who had written the case number
on the individual baggies, Thomas subsequently testified that she had written the
numbers. Thomas also testified that Exhibit 4 was still sealed when she received it
and that the seal she had placed on Exhibit 5 at the conclusion of her analysis was
still sealed when she testified during appellant’s trial.             Further, there was no
evidence that State’s Exhibits 4 and 5 were in the control of unknown persons at
any time. For those reasons, Easley does not support reversal here.

       Having determined that the trial court did not abuse its discretion when it
admitted State’s Exhibits 4 and 5 into evidence, we overrule appellant’s first
issue. 2

II.    Appellant was not entitled to a general voluntariness instruction
       because the voluntariness of his statement was not litigated during trial.
       In his second issue, appellant argues that the trial court erred when it refused
to include in the jury charge a voluntariness instruction pursuant to Article 38.22,
section 6 of the Code of Criminal Procedure. We conclude that the trial court did
not err because the evidence at trial did not raise the voluntariness of appellant’s
statement that he had gotten the cocaine at a club.

       When reviewing claims of jury-charge error, we use a two-step process.
First, we determine whether error actually exists in the charge. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if error exists, we determine

       2
           Because we have determined that the trial court did not abuse its discretion when it
admitted State’s Exhibits 4 and 5 into evidence, we need not address appellant’s contention in his
first issue that because the cocaine should not have been admitted into evidence, the evidence is
legally insufficient to support his conviction.

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whether it is harmful using the framework outlined in Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1984); see Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009).

         A trial judge has the absolute duty to prepare a jury charge that accurately
sets out the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14
(West 2005); Oursbourn v. State, 259 S.W.3d 159, 179–80 (Tex. Crim. App.
2008).    When a rule or statute requires an instruction under the particular
circumstances, that instruction is the law applicable to the case, and the trial court
must instruct the jury on whatever the statute or rule requires. Oursbourn, 259
S.W.3d at 180.

      A defendant’s statement may be used as evidence against him if it appears
that the statement was freely and voluntarily made without compulsion or
persuasion. Tex. Code Crim. Proc. Ann. art. 38.21. Article 38.22, section 6 of the
Code of Criminal Procedure governs the admissibility of an accused’s custodial
and non-custodial statements. This section becomes the law applicable to the case
once a question is raised and actually litigated as to the general voluntariness of an
accused’s statement. Aldaba v. State, 382 S.W.3d 424, 429 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d).

      The ordinary sequence of events contemplated by Section 6 is that: (1) a
party or the trial judge raises a question sua sponte whether the defendant’s
statement was voluntary; (2) the trial judge holds a hearing outside the presence of
the jury; (3) the trial judge decides whether the statement was voluntary; (4) if the
trial judge decides the statement was voluntarily made, it will be admitted into
evidence and the defendant may offer evidence before the jury suggesting that the
statement was not, in fact, voluntary; (5) if such evidence is offered before the jury,
the trial judge then must give the jury a general voluntariness instruction.

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Oursbourn, 259 S.W.3d at 175.        To be entitled to a Section 6 instruction, a
defendant must first “actually litigate” the issue of voluntariness before the trial
court by completing the first three steps listed above. Morales v. State, 371
S.W.3d 576, 583 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing
Oursbourn, 259 S.W.3d at 175).         The defendant then must introduce some
evidence before the jury that would enable the jury to find that the facts, disputed
or not, rendered the defendant unable to make a voluntary statement. Id. A
general voluntariness instruction must be given if a reasonable jury, viewing the
totality of the circumstances, could have found that the statement was not
voluntarily made. Id. The ultimate question is whether the suspect’s will was
overborne. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

      In this case, Officer Wilson testified that he showed appellant the three
baggies of cocaine once he removed them from appellant’s pocket. Wilson then
testified that appellant told him that he had gotten the drugs at a club. Appellant
objected to the admission of the statement pursuant to “38.22, 38.23, and hearsay.”
The trial court overruled appellant’s objections and admitted the statement into
evidence. Appellant did not request a hearing outside of the jury’s presence on the
question of the voluntariness of his statement. At the charge conference, appellant
requested a jury instruction under Article 38.22 because the statement was not
recorded or written. The trial court denied the requested instruction.

      The trial court subsequently made findings of fact and conclusions of law.
The trial court found, among other things, that (1) “Wilson showed [appellant] the
three baggies without making any statements to the defendant;” (2) appellant
“volunteered that ‘he got [the baggies] at the club [Alafys];’” (3) Wilson and the
other officers “did not coerce or threaten [appellant] to make him give a statement
regarding the drugs;” (4) Wilson was a credible witness; and (4) appellant was not

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a credible witness. The trial court’s conclusions of law included the determination
that (1) “Wilson’s act of showing [appellant] the bags of cocaine was not
interrogation or the functional equivalent of interrogation;” and (2) appellant’s
statement that he got the drugs at the club was voluntary.

       Appellant does not argue on appeal that he was entitled to a general
voluntariness instruction due to a disability. Appellant instead argues that he was
entitled to an instruction because he was detained in a felony traffic stop by
multiple police officers, in multiple patrol cars, who ordered him out of his vehicle
at gunpoint. Appellant asserts that, based on this evidence, the jury could have
concluded that his statement was made in the grip of the use of deadly force and
Wilson’s actions required him to respond.

       The State argues that appellant did not raise an Article 38.22, section 6
challenge to the voluntariness of his statement because he did not inform the trial
court that his objection was based on a contention that appellant’s statement was
involuntary. We need not decide whether appellant adequately raised the issue
with the trial court outside the presence of the jury because, even if he did, we
conclude that the evidence he points to in the trial record does not raise a
voluntariness issue. See Oursbourn, 259 S.W.3d at 174–76 (stating that no error
results from refusing to include a jury instruction about the voluntariness of a
statement under Article 38.22 when the evidence does not raise a voluntariness
issue); Miniel v. State, 831 S.W.2d 310, 317 (Tex. Crim. App. 1992) (“Only when
some evidence is presented that a confession is not voluntary is the matter put in
issue.”).

       Appellant argues that the evidence set out above would enable a reasonable
jury, viewing the totality of the circumstances, to have found that his statement was
involuntary because his will was overborne as a result of the police officers’ use of

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their weapons during the initial stages of his arrest. Appellant did testify that he
felt “unsafe” when the officers’ guns were pointed at him.           The evidence is
uncontradicted, however, that the only time the officers had their guns pointing at
appellant was when he exited the vehicle and backed toward them. After that, the
only evidence in the record is that appellant was cooperative and that a single
officer handcuffed and searched him. There is no evidence in the record that the
officers mistreated appellant or threatened him in any way, or that Wilson or any
other officer was pointing a weapon at appellant during the search.

      Appellant also did not testify that he was in such a state of fear for his life as
a result of the officers pointing their weapons at him that he did not give the
statement voluntarily. See Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.—
Houston [14th Dist.] 1994), aff’d, 900 S.W.2d 731 (Tex. Crim. App. 1995) (“A
confession will not be considered involuntary absent police coercion causally
related to the confession.”).    Instead, appellant denied that the officers found
baggies of cocaine that night and also denied making a statement regarding buying
the cocaine at a club. We conclude that the record does not contain evidence that
would have permitted the jury to conclude that appellant’s statement was not
voluntary. As a result, Article 38.22, section 6 never became the law applicable to
the case. See Von Byrd v. State, 569 S.W.2d 883, 894 (Tex. Crim. App. 1978)
(holding that there was no evidence that the defendant’s confession was
involuntary as a result of investigating officer’s course of conduct); Watts v. State,
371 S.W.3d 448, 464–65 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(“Without any evidence that the statements were made involuntarily, we cannot
say that article 38.22 ever became the law applicable to the case.”). We overrule
appellant’s second issue on appeal.

                                    CONCLUSION

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      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.




                                             /s/ J. Brett Busby
                                                 Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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