                                     In The

                              Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-18-00339-CR
                             __________________

                  JASON BENJAMIN MILLER, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 221st District Court
                     Montgomery County, Texas
                   Trial Cause No. 18-05-05638-CR
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant Jason Benjamin Miller was indicted for the offense of possession

of a controlled substance—methamphetamine—in an amount of four grams or more

but less than 200 grams, a second-degree felony. See Tex. Health & Safety Code

Ann. § 481.115(d). The indictment included two enhancement paragraphs alleging

previous convictions for possession of a controlled substance with the intent to

deliver or manufacture and for possession of methamphetamine. Miller pleaded “not
                                       1
guilty,” a jury found Miller guilty, found the enhancements true, and assessed

punishment at imprisonment for thirty-five years. Miller now appeals his conviction,

raising five issues. We affirm the judgment as reformed.

                                  Evidence at Trial

Testimony of Deputy Willie Mayes

      Deputy Willie Mayes, with the Montgomery County Sheriff’s Office, testified

that he encountered Miller while Mayes was “patrolling” and driving north on

Highway 249. Mayes noticed that Miller “kind of did a double take and a triple take”

when Miller saw Mayes, which Mayes took as a sign of nervousness about seeing

the police. Mayes testified that Miller moved into the left lane in front of a white

vehicle that had to put on its brakes and make an evasive action to avoid a collision

with Miller’s vehicle, and Mayes stopped Miller for an unsafe lane change.

According to Mayes, the way Miller changed lanes was evasive or abrupt, and the

lane Miller had been driving in was clear, and the other car had to put on its brakes.

Mayes agreed that the Transportation Code does not specifically define “safely” in

the context of a lane change. Mayes also agreed that he was speculating as to the

reason the driver of the white car in the left lane applied the brakes and that he did

not see the car’s brake lights. Mayes recalled seeing the front of the white car point



                                          2
downwards, which indicated to Mayes that the driver applied his brakes and which

Mayes regarded as an evasive action.

      According to Mayes, the first thing Miller said to Mayes after the traffic stop

was “my bad[,]” which Mayes thought related to the unsafe or illegal lane change.

Mayes testified that once he had stopped Miller, Miller exhibited “[e]xcessive

nervousness, either hiding something or putting something away[,]” which aroused

Mayes’s suspicions:

      He was very nervous. Kind of like -- you know, just moving a lot. You
      know, twitching a little bit. And once the window was rolling down, I
      already knew at this point -- I had to keep my cool at this point because
      as soon as he let the window down, I automatically smelled a strong
      odor of marijuana, as soon as he let the window down.

Mayes further testified that the way Miller acted led Mayes to believe Miller was a

methamphetamine user. According to Mayes, the smell of marijuana provided a

reason to have Miller exit the vehicle and either detain Miller or search the vehicle.

      Mayes called for backup, and Deputies Carpenter and Mittag responded, and

Deputy Carpenter patted Miller down. Mayes testified that, during the pat-down,

Carpenter asked Miller if he could pull out what was inside Miller’s pocket, and

Carpenter pulled out “a square block of crystal-like substance[]” that Mayes knew

from his training to be methamphetamines. Mayes also testified that the officers

found in Miller’s vehicle a plastic container with a small amount of marijuana inside

                                          3
it. In viewing photographs taken of Miller’s vehicle, Mayes identified a torch lighter

used to heat a spoon for use in injecting drugs; a razor or scalpel that could be used

for cutting crack, cocaine, or methamphetamines; a syringe; and a pipe with probable

marijuana residue. Mayes also identified a photo of a block of methamphetamines

weighing almost twelve grams found in Miller’s pocket, a baggie containing

additional methamphetamine, and a baggie containing marijuana. In another photo

exhibit, Mayes identified red baggies used “to sell and distribute.” Mayes agreed that

these items were seized as evidence by Deputy Carpenter.

      Deputy Mayes agreed that his patrol vehicle had a dash cam video system and

that State’s Exhibit 2 was a copy of the video of the traffic stop that was made by

his dash cam, and the video was admitted into evidence and published to the jury.

As the video was played, the following exchange occurred:

      Q. So what action, if any, does the white car take once the Defendant’s
      vehicle comes over into the next lane?

      A. They either have to brake or they have to switch lanes themselves.

      Q. And what did the white vehicle do in this particular case?

      A. They broke -- well, they braked.

      Q. Can you describe that braking action for the members of the jury?

      A. Sure. I am pretty sure you are pretty familiar, but whenever you
      brake or brake abruptly, the front end of the vehicle normally tends to
      -- I mean, I know like when you-all are driving, you are like don’t slam
                                          4
      too hard, just get off the gas. Because it is obviously when somebody
      brakes or applies the brakes hard, the front end of the vehicle dives
      down when they have to make an abrupt stop or brake.

      Q. And would you characterize that action as evasive action?

      A. Correct.

      Q. And would you believe that action to be unsafe?

      A. Yes, sir.

      Q. So in terms of your reasonable suspicion for a traffic stop, did you
      believe that there was a Transportation Code violation just committed?

      A. Yes, which is switching lanes when unsafe.

Mayes agreed that at the time the traffic infraction took place, the white car was not

visible on the video. Mayes also agreed that during his work, he sometimes observes

things that are not “fully captured” by the vehicle dash cam video.

Testimony of Deputy Dimitri Carpenter

      Deputy Dimitri Carpenter, a Deputy with the Montgomery County Sheriff’s

Office, testified that he assisted Deputy Mayes upon arriving at the traffic stop when

Mayes called for assistance. Carpenter testified that he could smell “a hint of weed

in the car[,]” and Carpenter patted Miller down and searched him because of the

smell of marijuana. Carpenter testified that when he approached the vehicle, he

observed Miller in the driver’s seat, reaching behind the passenger seat. Upon

searching Miller, Carpenter found “a rock of methamphetamine[]” in Miller’s
                                      5
pocket, which Carpenter placed into an evidence locker. According to Carpenter, he

handed the bag of what he believed to be drugs to Deputy Mittag, who subsequently

returned the bag to him. Carpenter recalled that Deputies Mayes and Mittag weighed

the methamphetamine while Carpenter inventoried Miller’s vehicle, and the bag was

out of Carpenter’s eyesight for a time while he was conducting the inventory and

while Mayes and Mittag were testing the substance. Carpenter testified that he

placed the substance in a bag at the scene but did not seal the bag until the officers

got back to the office. Carpenter agreed that the bag of methamphetamine admitted

into evidence as State’s Exhibit 28 was later sent to a laboratory for analysis.

Testimony of Cristina Muko

      Cristina Muko, a forensic scientist with the Texas Department of Public

Safety, testified that she performed testing on the sample that was admitted as State’s

Exhibit 28. Muko identified State’s Exhibit 28 and described her procedure:

      My label not only includes the case number, but it also includes my
      initials, the date I opened it, as well as the item number. And once I am
      finished with my analysis, I then heat seal the bag and place my initials
      and the date that I finished the analysis.

According to Muko, she completed her analysis on June 19, 2018. Muko testified

that her analysis determined that the substance was methamphetamine in an amount

of 11.12 grams. Muko’s lab report was admitted into evidence as State’s Exhibit 29,

and the report identifies the substance tested as 11.12 grams net weight of a
                                       6
crystalline substance containing methamphetamine. The report also identifies the

suspect in the case as Jason Miller with a birthdate of April 9, 1975, an offense date

of April 28, 2018, and a Montgomery County case number of 18-A-115394. On

cross-examination, the following exchange occurred:

      [Defense counsel]: Okay. So -- and this substance, would you agree
      with me, is it one piece or multiple pieces?

      [Muko]: It is in a little bit broken up bits and pieces.

      [Defense counsel]: Okay. Because, I mean, it is a crystalline substance,
      correct?

      [Muko]: That’s correct.

      [Defense counsel]: So is it possible that some of that crystalline
      substance or some of those other pieces are not methamphetamine? Or
      do you know?

      [Muko]: I suppose it could be possible that some of it is not.

      [Defense counsel]: Because you only test .01 grams of that, correct?

      [Muko]: That’s correct.

      Muko testified that an evidence envelope initially goes to DPS evidence

technicians, that she places a label on the envelope when she has completed her

analysis and then an evidence technician returns it to the agency. According to

Muko, all of the people who receive the evidence must initial a sticker on the

envelope.

                                           7
Miller’s Testimony

      Miller testified that he had previously been convicted for possession of a

controlled substance in 2007, 2010, 2015, and 2017 and convicted of delivery of a

controlled substance in 2012. Miller also testified that he is a “drug addict[]” and he

has a problem with methamphetamine.

      When asked about the day he was pulled over, Miller testified that he changed

lanes because he knew an officer was behind him and Miller was trying to get out of

the officer’s way. Miller believed he changed lanes safely and stated:

      I was making a safe lane change. I put my blinker on and I got over like
      everybody does. . . . I was trying to get out of the cop’s way. He was
      riding my rear. You know what I am saying? I was doing the speed limit
      and he was continuing to get closer to me. So I went ahead and put my
      blinker on and moved out of his way.

Miller did not notice whether the car he pulled in front of applied its brakes or

whether the hood dipped down. According to Miller, he sat in his car for ten minutes

after he was pulled over, and while he was sitting in his car, he smoked a cigarette

and ate the ice cream he had just bought shortly before he was stopped. Miller

testified that he did not give his consent to be searched. Miller testified that he works

at an automobile collision repair shop and he uses the exacto knives found in his

vehicle for work. According to Miller, the glass pipe that was found in his vehicle

was a “P bowl[]” and he used it to smoke methamphetamine, and the baggies that

                                           8
were found in his vehicle were for his ex-wife, who makes gems and jewelry. Miller

testified “I do drugs[]” but he denied selling drugs.

                                        Issues

      Miller raises five issues on appeal. He contends (1) the trial court erred in

denying his motion to suppress, (2) the trial court abused its discretion in admitting

certain evidence because the State had failed to prove up the chain of custody, (3) the

trial court erred in denying his article 38.23 motion to instruct the jury regarding

reasonable suspicion for the traffic stop, (4) the trial court erred in denying his

request to include a lesser-included charge in the jury charge, and (5) the evidence

was not legally sufficient to support the jury’s finding of “true” to the alleged prior

convictions used as enhancements.

                                 Motion to Suppress

      Miller’s first issue argues that the trial court erred in denying his motion to

suppress because Deputy Mayes lacked reasonable suspicion to stop Miller.

According to Miller, article 38.23 of the Texas Code of Criminal Procedure requires

that evidence obtained in the search of his vehicle be suppressed because his

detention and the subsequent search of his vehicle were not supported by reasonable

suspicion and violated Miller’s rights under the Fourth Amendment and the Texas

Constitution. See U.S. Const. amend. IV; Tex. Const. art. 1, § 9; Tex. Code Crim.

                                          9
Proc. Ann. art. 38.23. Miller argues that Deputy Mayes admitted that the only reason

to believe Miller made an unsafe lane change was because the white vehicle in the

left lane slowed down, and Miller contends Mayes did not know if the white vehicle

slowed down when Miller changed lanes, and that Mayes admitted the law does not

say how many car lengths is considered a safe distance for changing lanes.

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

We review the trial court’s factual findings for an abuse of discretion but review the

trial court’s application of the law to the facts de novo. Turrubiate v. State, 399

S.W.3d 147, 150 (Tex. Crim. App. 2013).

      At a suppression hearing, the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony, and a trial

court may choose to believe or disbelieve all or any part of a witness’s testimony.

Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.

App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999));

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial

court’s ruling, the appellate court does not engage in its own factual review. St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total

deference to the trial court’s determination of historical facts, “especially if those are

                                           10
based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d

43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s

conclusions with respect to mixed questions of law and fact that turn on credibility

or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We

review purely legal questions de novo as well as mixed questions of law and fact

that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404,

410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.

      When there are no findings of fact and none were requested, an appellate court

must presume that the trial court implicitly resolved all issues of historical fact and

witness credibility in the light most favorable to its ultimate ruling. State v. Elias,

339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d at 857). But

when the trial court makes explicit fact findings, we determine whether the evidence,

when viewed in the light most favorable to the trial court’s ruling, supports those

findings. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We

will uphold the trial court’s ruling if it is reasonably supported by the record and is

correct on any theory of law applicable to the case. State v. Story, 445 S.W.3d 729,

732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim.

App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).



                                          11
      Traffic stops require an officer to have a reasonable suspicion that the person

detained is, has been, or will soon engage in criminal activity. Jaganathan v. State,

479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Crockett v. State, 803 S.W.2d 308,

311 (Tex. Crim. App. 1991). The standard is whether, based on facts articulated by

the officer and the totality of the circumstances, an objectively reasonable officer

would have developed suspicion that an offense was in progress or had occurred.

Id.; Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d)

(citing Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)). We review

de novo “whether the totality of [the] circumstances is sufficient to support an

officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d at 48-49.

      An unsafe lane change is a traffic violation. See Tex. Transp. Code Ann.

§ 545.060(a) (“An operator on a roadway divided into two or more clearly marked

lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane;

and (2) may not move from the lane unless that movement can be made safely.”);

Dunn v. State, 478 S.W.3d 736, 742 (Tex. App.—Fort Worth 2015, pet. ref’d); Tyler

v. State, 161 S.W.3d 745, 748 (Tex. App.—Fort Worth 2005, no pet.).

      In this case, Deputy Mayes testified during the hearing on the motion to

suppress that when Miller changed lanes, the white car behind Miller in the left lane

slowed down and applied the brakes to avoid a collision. Mayes testified that he saw

                                          12
the front of the white vehicle point downwards when it braked, although Mayes

admitted he did not see the brake lights. According to Mayes, if the vehicle in the

left lane had to brake, then Miller’s lane change into the left-hand lane was unsafe.

      The trial court denied the motion to suppress. After trial, Miller filed a request

for findings of fact and conclusions of law, but none were entered. We abated the

case and remanded it to the trial court for entry of findings of fact and conclusions

of law. See Byram v. State, 510 S.W.3d 918, 921 n.3 (Tex. Crim. App. 2017) (“On

a motion to suppress evidence, a trial court must state its findings of fact and

conclusions of law upon the losing party’s request. State v. Cullen, 195 S.W.3d 696,

699 (Tex. Crim. App. 2006).”). We received a supplemental clerk’s record with the

trial court’s findings. The trial court entered the following findings of fact:

      1.   On July 9, 2018, the 221st District Court held a trial in the State of
           Texas v. Jason Benjamin Miller in Cause Number 18-05-05638.
      2.   Prior to trial, Applicant filed a Motion to Suppress and during the
           trial, evidence was heard on whether there was reasonable
           suspicion to stop Applicant’s vehicle.
      3.   Outside the presence of the jury, the trial court heard testimony
           from Deputy Mayes, both cross-examination and direct
           examination, received exhibits, reviewed an in-car video and heard
           arguments of counsel.
      4.   After the hearing, the Court found that reasonable suspicion
           existed for the stop and that the subsequent investigation was
           proper.
      5.   Applicant, Jason Benjamin Miller was stopped on April 28, 2018
           at about 6:59 p.m.
      6.   The speed limit was approximately 55 mph and Applicant’s
           vehicle was estimated to be going 60 mph per Deputy Mayes.
                                           13
      7.    Applicant was driving North on Hwy. 249 along with Deputy
            Mayes.
      8.    Another vehicle was driving in an adjacent lane near both Deputy
            Mayes’ vehicle and Applicant’s vehicle.
      9.    The other vehicle took evasive action when Applicant’s vehicle
            changed lanes. Deputy Mayes testified that the other vehicle is not
            as visible on the recorded in-car video due to its location and since
            the camera is positioned to look forward.
      10.   Applicant was pulled over for making an unsafe lane change.
            Deputy Mayes testified that he told Applicant why he stopped him.
      11.   Applicant stated he made the unsafe lane change due to the officer
            being behind him and that law enforcement officers made him
            nervous.
      12.   Applicant made an admission to making an unsafe lane change and
            stated, “My bad,” when asked about his driving.
      13.   Deputy Mayes testified that he smelled the odor of marijuana
            emanating from Applicant’s vehicle during his interaction with
            Applicant.
      14.   Deputy Mayes testified he observed Applicant acting fidgety and
            twitching and that based on his experience and training Applicant
            appeared to be under the influence of some type of drug.
      15.   Deputy Mayes called for assistance from another officer for officer
            safety.
      16.   Deputy Mayes made the decision that it was not safe to allow
            Applicant to drive while under the influence of drugs.
      17.   The Court found that Deputy Mayes seemed to be credible and had
            no other controverting evidence.
      18.   After the hearing, the Court held that reasonable suspicion existed
            to make a traffic stop and conduct a further investigation after the
            deputy smelled marijuana.

      In supplemental briefing, Appellant argues that although Mayes testified at

trial that Miller was speeding, Mayes did not testify during the suppression hearing

that Miller was speeding. Appellant further argues that “Appellant never said that he

made an ‘unsafe lane change[,]’” so that the trial court erred in finding that Appellant
                                          14
admitted he made an unsafe lane change. The record of the suppression hearing

reflects that Mayes testified that he told Appellant he had pulled him over for an

unsafe lane change and Mayes testified that Appellant “basically admitted to making

the unsafe lane change.”

      The trial court issued a finding of fact that Deputy Mayes testified that Miller

made an unsafe lane change, and the trial court found Mayes to be credible. Based

on the totality of the circumstances and deferring to the trial court’s credibility

determination in its findings of facts, we conclude that the evidence contains

sufficient specific articulable facts, when combined with rational inferences from

those facts, from which the trial court could have reasonably concluded that Deputy

Mayes’s initial detention of Miller was objectively reasonable, that Mayes had a

good-faith suspicion that Miller had engaged in a traffic violation, and that probable

cause existed to support the traffic stop. See Crain, 315 S.W.3d at 48, 52. We

therefore conclude that the trial court did not err in overruling the motion to suppress.

We overrule Miller’s first issue.

                            Article 38.23 Jury Instruction

      Miller’s third issue argues that the trial court erred in denying Miller’s motion

to instruct the jury that, if they found that the Appellant did not violate the law, then

they would not be able to consider the rest of the evidence. Miller argues that his

                                           15
request for an article 38.23 jury instruction was based on “the fact that the evidence

presented by the State showed that Deputy Mayes did not have reasonable suspicion”

for the traffic stop of Miller. According to Miller, because the trial court erred in

determining that the State’s case-in-chief presented no disputed fact evidence, he

was “forced” to give up his right not to testify in order to affirmatively contest the

State’s evidence. Miller argues that he testified concerning prior convictions, and

that evidence of these convictions would not otherwise have come into evidence.

The result, according to Miller, is that the jury had to choose whether to believe

Deputy Mayes or a “convicted felon,” which constitutes reversible harm.

      The day trial began, Miller requested a jury instruction pursuant to article

38.23 that stated

      . . . you may consider evidence obtained by Deputy Willie Mayes
      and/or Deputy Dimitri Carpenter as the result of his detention and arrest
      of the defendant if you first find beyond a reasonable doubt that the
      defendant’s warrantless detention and arrest were permitted by the laws
      and Constitutions of this State and the United States; but if you do not
      so find beyond a reasonable doubt, then you will disregard any such
      evidence and not consider it for any purpose.

At the conclusion of the State’s case-in-chief, Miller asked the trial court to rule on

his requested jury instruction regarding reasonable suspicion for the stop and

explained that his decision whether to testify depended on the trial court’s ruling.

The trial court denied the requested instruction, indicating that there was no

                                          16
affirmatively-contested factual issue for the jury to resolve. The trial court also

stated:

             I do think that the officer appeared to be credible. And one of the
      reasons why I think that is so, is during your cross-examination, he
      could have been very adamant. But he said -- he gave it to you and said,
      look, I didn’t see his brake lights, I saw the car go down, I was beside
      him, I wasn’t behind him. So it is not like he appeared to be bolstering
      his testimony.
             ....
             . . . And so I have to go on what the witness says if I believe the
      witness and do I think that you have done enough to reach that
      affirmative defense requirement. And I don’t think at this time that you
      have. So I am going to deny your motion.

The court stated that the defense could establish a disputed fact issue through the

testimony of a bystander witness or cross-examination. The trial court also explained

that it did not believe the defense had met the requirement of an affirmative defense

at that time, but the court told the defense it could reurge its motion after presenting

its case. Miller subsequently testified that he believed he changed lanes safely. After

Miller testified, he renewed his motion, and the trial court included the requested

instruction in the jury charge.

      Article 38.23 provides that evidence obtained in violation of the laws or

Constitution of the United States or Texas may not be admitted in a criminal case.

See Tex. Code Crim. Proc. Ann. art. 38.23(a). A jury instruction should be submitted

if a fact issue arises about whether such a violation occurred. See id.; Hamal v. State,

                                          17
390 S.W.3d 302, 306 (Tex. Crim. App. 2012). The instruction requires the jury to

disregard evidence that it finds was obtained in violation of the Constitution or laws

of the United States or Texas. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390

S.W.3d at 306. Three predicates are required for a defendant to be entitled to an

article 38.23 jury instruction: “(1) the evidence heard by the jury must raise an issue

of fact, (2) the evidence on that fact must be affirmatively contested, and (3) the

contested factual issue must be material to the lawfulness of the challenged

conduct.” Hamal, 390 S.W.3d at 306 (citing Spence v. State, 325 S.W.3d 646, 653-

54 (Tex. Crim. App. 2010); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim.

App. 2008)); see also Hernandez v. State, 533 S.W.3d 472, 482 (Tex. App.—Corpus

Christi-Edinburg 2017, pet. ref’d).

      A jury instruction is proper “only if there is a contested issue of fact about the

obtaining of the evidence. . . . There is no issue for the jury when the question is one

of law only.” Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000) (citing

Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996)). The Court of Criminal

Appeals has explained,

      [i]f there is no disputed factual issue, the legality of the conduct is
      determined by the trial judge alone, as a question of law. And if other
      facts, not in dispute, are sufficient to support the lawfulness of the
      challenged conduct, then the disputed fact issue is not submitted to the
      jury because it is not material to the ultimate admissibility of the

                                          18
      evidence. The disputed fact must be an essential one in deciding the
      lawfulness of the challenged conduct.

Madden v. State, 242 S.W.3d 504, 510-11 (Tex. Crim. App. 2007) (internal citations

omitted). The reasonableness of an officer’s suspicion that a traffic violation

occurred is a legal issue to be resolved by the court, and not a fact issue. See

Robinson v. State, 377 S.W.3d 712, 720-22 (Tex. Crim. App. 2012); Madden, 242

S.W.3d at 513.

      According to Miller, in its case-in-chief, the State did not present evidence

sufficient to support reasonable suspicion because Mayes admitted the law does not

define an unsafe lane change as one where a driver is required to brake, that both his

vehicle and the white car were about the same distance from Miller’s vehicle, and

that he did not know why the driver of the white car applied the brakes. On the record

before us, we cannot say the trial court erred in concluding that the State’s case-in-

chief included no affirmative evidence that put the existence of a material fact into

question and in denying the request for an article 38.23 jury instruction. See Tex.

Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306; Madden, 242

S.W.3d at 513. Because we find no error in denying the instruction, we need not

examine harm. See Tex. R. App. P. 47.1. We overrule Miller’s third issue.




                                         19
                                 Chain of Custody

      In his second issue, Miller argues that the trial court abused its discretion in

admitting “State exhibits #26 (a pack of red baggies), exhibit #27 (a pipe), exhibit

#25 (marijuana that was allegedly on Appellant’s possession) and exhibit #28

(methamphetamines that were allegedly on Appellant’s possession).” According to

Miller, these exhibits were admitted through the testimony of Deputy Mayes and

Mayes did not seize the evidence, tag and number the evidence, or log the items into

evidence. Miller also argues that the analyst who testified about the evidence did not

receive the evidence directly from law enforcement but from another technician.

Miller argues that the evidence was inadmissible because the State failed to prove a

chain of custody, that admission of the evidence prejudiced him, and that a limiting

instruction would not have been sufficient to prevent harm.

      An appellate court reviews a trial court’s ruling on the admission of evidence

for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.

2019) (citing Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); Powell

v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). The trial court abuses its

discretion when it acts without reference to any guiding rules and principles or acts

arbitrarily or unreasonably. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1990)).

                                         20
      Even if the trial court erred in overruling Miller’s objections, we will not

reverse the judgment if the error was harmless. See Tex. R. App. P. 44.2. We will

disregard non-constitutional error that does not affect a criminal defendant’s

substantial rights. See Tex. R. App. P. 44.2(b). “A substantial right is affected when

the error had a substantial and injurious effect or influence in determining the jury’s

verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In our

determination of whether error adversely affected the jury’s decision, we consider

everything in the record, including testimony, physical evidence, jury instructions,

the State’s theories and any defensive theories, closing arguments, and voir dire. Id.

      Circumstantial evidence may be sufficient to prove the chain of custody. See

Cain v. State, 501 S.W.3d 172, 175 (Tex. App.—Texarkana 2016, no pet.); Watson

v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref’d). “Without

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, 617 (Tex. Crim. App. 1997); see also Martinez v. State, 186 S.W.3d

59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Gallegos v. State, 776

S.W.2d 312, 315 (Tex. App.—Houston [1st Dist.] 1989, no pet.). When the State

shows the beginning and the end of a chain of custody, any intermediate gaps go to

the weight rather than the admissibility of the evidence, particularly if the chain of

                                          21
custody ends at a laboratory. See Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d

at 315-16.

      Deputy Carpenter testified at trial he found “a rock of methamphetamine[]”

in Miller’s pocket, which Carpenter placed into an evidence locker. Carpenter also

recalled that he inventoried Miller’s vehicle. Carpenter also agreed that the bag of

methamphetamine admitted into evidence was the same one he retrieved from Miller

and was later sent to a lab. Deputy Mayes agreed that the objected-to items of

evidence were seized by Deputy Carpenter. Cristina Muko, who analyzed the drugs

seized, testified that she received the bagged evidence from an evidence technician,

who also returned the evidence to the law enforcement agency that sent it.

      According to Miller, the evidence failed to prove “the beginning and end of a

chain of custody” as required by Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—

San Antonio 2006, pet. ref’d). However, the record includes no evidence of

tampering, and any intermediate gaps between the initial seizure by law enforcement

and analysis of the substance in the laboratory would go to the weight of the evidence

and not its admissibility. See Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d at

315-16. Therefore, the trial court did not err in overruling Miller’s objection about

the chain of custody. Because we find no error in the admission of this evidence, we

need not consider whether a limiting instruction would have prevented harm or

                                         22
whether prejudice occurred. See Tex. R. App. P. 47.1. We overrule Miller’s second

issue.

                           Lesser-Included Offense Instruction

         Miller’s fourth issue argues that the trial court erred in denying his request for

an instruction for the lesser-included offense of possession of a controlled substance

less than one gram. Miller argues that Muko only tested .01 grams out of the total

11.12 of the substance submitted for testing, and that the substance was broken into

pieces. Miller further argues that Muko admitted it was possible that other pieces of

the substance were not methamphetamine. According to Miller, a rational juror

could conclude that Miller possessed less methamphetamine than Deputy Mayes

testified was in the plastic bags seized.

         A two-step test determines whether a lesser-included offense instruction

should be given to the jury. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App.

2016); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first step

requires the trial court to determine “whether the requested instruction pertains to an

offense that is a lesser-included offense of the charged offense, which is a matter of

law.” Bullock, 509 S.W.3d at 924. Where the requested offense is established by

proof of the same or less than all the facts required to establish the offense charged,

the first step is satisfied. See id.; see also Tex. Code Crim. Proc. Ann. art. 37.09.

                                             23
      “The second step in the analysis asks whether there is evidence in the record

that supports giving the instruction to the jury.” Bullock, 509 S.W.3d at 924-25.

Under this step, “a defendant is entitled to an instruction on a lesser-included offense

when there is some evidence in the record that would permit a jury to rationally find

that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Id.

at 925. “The evidence must establish that the lesser-included offense is a valid,

rational alternative to the charged offense.” Id. This step requires “examining all the

evidence admitted at trial, not just the evidence presented by the defendant.” Id. A

defendant is entitled to the instruction on anything more than a scintilla of evidence,

but “it is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense, but rather there must be some evidence directly germane to the

lesser-included offense for the finder of fact to consider before an instruction on a

lesser-included offense is warranted.” Id. When reviewing the trial court’s ruling,

we cannot consider “‘the credibility of the evidence and whether it conflicts with

other evidence or is controverted.’” Id. (quoting Goad v. State, 354 S.W.3d 443, 446-

47 (Tex. Crim. App. 2011)). Accordingly, “‘the standard may be satisfied if some

evidence refutes or negates other evidence establishing the greater offense or if the

evidence presented is subject to different interpretations.’” Id. (quoting Sweed v.

State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)).

                                          24
      It is not sufficient that the evidence merely raises the possibility of the lesser

offense; to be entitled to an instruction on a lesser-included offense, the evidence

must establish the lesser offense as a valid rational alternative to the charged offense.

See Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000); see also

Creel v. State, 710 S.W.2d 120, 133 (Tex. App.—San Antonio 1986) (holding trial

court did not err in denying lesser-included offense charge where inferences and

conjectures appellant categorized as “some evidence” amounted to nothing more

than “a mere surmise or suspicion of the existence of the fact sought to be

established”) (quoting Joske v. Irvine, 91 Tex. 574, 582 (1898).

      Miller argues that a lesser-included offense instruction was warranted because

Muko did not test all of the substance seized and she admitted it was possible that

untested pieces were not methamphetamine. In this case, the second part of the

Bullock test is not met. See Bullock, 509 S.W.3d at 924-25. The term “controlled

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

substance containing a controlled substance.” See Tex. Health & Safety Code Ann.

§ 481.002(5); see also Melton v. State, 120 S.W.3d 339, 343-44 (Tex. Crim. App.

2003). The State is not required to test every rock to determine whether it contains

methamphetamine. See Melton, 120 S.W.3d at 344. Muko testified that the weight

of the crystalline substance she received was 11.12 grams. Her lab report states that

                                           25
the net weight of the methamphetamine in evidence was 11.12 grams. There is no

evidence the aggregate weight of the methamphetamine seized was less than 11.12

grams and consequently no evidence that would permit a jury to rationally find that,

if Miller is guilty, he is guilty of possession of a smaller quantity of

methamphetamine. See Davis v. State, No. 09-03-521-CR, 2005 Tex. App. LEXIS

6349, at **2-3 (Tex. App.—Beaumont Aug. 10, 2005, pet. ref’d) (mem. op., not

designated for publication). The trial court did not err in refusing to instruct the jury

on the lesser-included offense. Because we find no error, we need not consider harm.

See Tex. R. App. P. 47.1. We overrule Miller’s fourth issue.

                         Prior Convictions as Enhancements

      Miller’s final issue argues that the jury erred in finding the enhancement

paragraphs true because the State failed to prove that the judgments admitted into

evidence were final and that no appeal was pending. According to Miller, without

evidence of finality, the jury’s finding that the enhancements were true was mere

speculation and not sufficient for a finding beyond reasonable doubt.

      “Once the State introduces [] prima facie evidence of a final conviction, the

defense has the burden of proving that the conviction was not final.” Johnson v.

State, 583 S.W.2d 399, 403 (Tex. Crim. App. 1979) (citing Ashley v. State, 527

S.W.2d 302 (Tex. Crim. App. 1975)). If a judgment of conviction has been set aside,

                                           26
vacated, or appealed, the burden is on the defendant to offer such evidence. See Jones

v. State, 77 S.W.3d 819, 822-23 (Tex. Crim. App. 2002). If a defendant does not

offer such evidence, then the State’s prima facie proof is legally sufficient to prove

a prior final conviction used as an enhancement. See id.

      The indictment against Miller included two enhancement paragraphs—one

alleging that he had been convicted in October 2012 of possession of a controlled

substance with intent to deliver or manufacture in cause number 12-04-03986-CR,

and another alleging that he had been convicted in June 2010 of possession of

methamphetamine in cause number 1254503. The State offered into evidence

certified copies of two judgments of conviction. State’s Exhibit 34 was a Judgment

of Conviction in trial cause number 12-04-03986-CR for possession of a controlled

substance with intent to deliver or manufacture, entered October 11, 2012. State’s

Exhibit 36 was a Judgment of Conviction in trial cause number 1254503 for

possession of methamphetamine, entered June 22, 2010. Both judgments reflect that

Miller pleaded “guilty” to the offense charged. In addition, the State reoffered

evidence from the guilt-or-innocence phase of trial during the punishment phase.

During the guilt-or-innocence phase, Miller agreed that he was convicted of

possession of a controlled substance in June 2010, and that in October 2012, he was

convicted of delivery of a controlled substance.

                                         27
      On this record, the State provided prima facie evidence of prior final

convictions, and Miller provided no evidence that the convictions were not final.

Accordingly, the State’s evidence was legally sufficient to prove the prior

convictions used as enhancements. See Jones, 77 S.W.3d at 822-23; Johnson, 583

S.W.2d at 403. We overrule Miller’s fifth issue.

                             Reformation of Judgment

      The written judgment of conviction in this case contains non-reversible

clerical error. The judgment of conviction states that the “Plea to Enhancement

Paragraphs[]” is “True[.]” However, Miller pleaded “not true” to the enhancements.

This Court has the authority to modify the trial court’s judgment to correct clerical

errors. See Tex. R. App. P. 43.2(b) (providing that the court of appeals may “modify

the trial court’s judgment and affirm it as modified”); Bigley v. State, 865 S.W.2d

26, 27-28 (Tex. Crim. App. 1993) (holding that the court of appeals has the power

to reform judgments to correct clerical errors); Torres v. State, 391 S.W.3d 179, 185

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (modifying judgment to correct

defendant’s plea allegations in enhancement paragraphs). Accordingly, we modify

the judgment to reflect that the “Plea to Enhancement Paragraphs[]” is “Not True[.]”




                                         28
      Having overruled all Miller’s issues, we affirm the judgment as reformed.

      AFFIRMED AS REFORMED.



                                                  _________________________
                                                      LEANNE JOHNSON
                                                            Justice

Submitted on November 19, 2019
Opinion Delivered March 4, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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