Opinion filed July 14, 2016




                                           In The


           Eleventh Court of Appeals
                                       __________

                                 No. 11-15-00236-CR
                                     __________

                     BENJAMIN ESCOVEDO, Appellant
                                              V.
                       THE STATE OF TEXAS, Appellee


                       On Appeal from the 91st District Court
                             Eastland County, Texas
                           Trial Court Cause No. 23909


                       MEMORANDUM OPINION
       The jury found Benjamin Escovedo, Appellant, guilty of the second-degree
felony offense of possession of more than four grams but less than two hundred
grams of methamphetamine.1 The State alleged two prior felony convictions to
enhance the punishment.2 Appellant pleaded “true” to the enhancement allegations,

       1
        TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010).
       2
        TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2015).
and the jury found the enhancement allegations to be “true.” The jury then assessed
Appellant’s punishment at confinement for fifty-seven years; the trial court
sentenced him accordingly. In one issue, Appellant challenges the sufficiency of the
evidence to support his conviction. We affirm.
                                      I. The Charged Offense
        The grand jury indicted Appellant for possession of more than four grams but
less than two hundred grams of methamphetamine, enhanced by two prior felony
convictions. A person commits an offense if he knowingly or intentionally possesses
methamphetamine. HEALTH & SAFETY §§ 481.102(6), 481.115(a). The offense is a
second-degree felony if the offender possessed more than four grams but less than
two hundred grams of the controlled substance. Id. § 481.115(d). The punishment
range for a second-degree felony enhanced with two prior felony convictions is
confinement for not less than twenty-five years but not more than ninety-nine years,
or life. PENAL § 12.42(d).
                                        II. Evidence at Trial
        Michael West and Jose Astello, both of whom are troopers with the Texas
Department of Public Safety, were on patrol in Cisco when they saw Appellant
standing outside a residence in front of a car. As they backed up to speak to
Appellant, Trooper West saw Appellant throw something under the nearby porch.
The troopers stopped and asked Appellant what he had thrown under the porch, but
Appellant gave them an evasive answer. The troopers left but returned shortly
thereafter to search under the porch.3 There, Trooper West found a cigarette box
containing three baggies of a “white crystal substance.” Trooper West field-tested
and weighed the substance and found that it was methamphetamine and that it
weighed approximately 9.5 grams, including the baggies.

        3
          The tenant gave Trooper West permission to search under the porch. The validity of the search is
not at issue here.

                                                    2
      Ashley Renee Zelinski, a forensic scientist with the Texas Department of
Public Safety Crime Laboratory in Abilene, testified at trial that she analyzed the
contents   of   the   baggies    and   determined     that   the   baggies   contained
methamphetamine. Zelinski then testified that she weighed the methamphetamine.
However, when asked how she weighed it, she testified only as to how she typically
weighed something in a “little bag.” Zelinski did not testify as to the actual weight
of the recovered methamphetamine. However, the State introduced her lab report as
State’s Exhibit No. E-1, which was admitted without objection. According to the
information contained in the lab report, one of the baggies contained “6.56 grams
(+/- 0.03 grams)” of methamphetamine.
                                III. Standard of Review
      We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we examine all of the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and any reasonable inferences from
it, any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight
and credibility of the evidence; we may not reevaluate the weight and credibility of
the evidence so as to substitute our own judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to that
resolution. The jury is free to draw reasonable inferences from basic facts to ultimate
facts. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).


                                           3
                                    IV. Analysis
      Appellant contends that the evidence is insufficient to establish that he
possessed more than four grams of methamphetamine.            Appellant argues that
“Zelinski did not . . . testify to how she specifically weighed this submission” and
asserts that, without Zelinski’s testimony, the jury was left to impermissibly
speculate as to the weight of the methamphetamine. Even if we assume, without
holding, that Appellant is correct about the absence of Zelinski’s testimony as to the
weight of the methamphetamine, there was, nonetheless, sufficient evidence in the
record from which the jury could have found beyond a reasonable doubt that
Appellant possessed more than four grams of methamphetamine.
      Trooper West tested and weighed the substance when he seized it. He
determined that the substance field-tested positive for methamphetamine and that it
weighed approximately 9.5 grams in the baggies. In addition, the State introduced
Zelinski’s lab report without objection from defense counsel, and the report
contained information to show that one of the baggies contained “6.56 grams
(+/- 0.03 grams)” of methamphetamine.
      The jury, as the trier of fact, was the sole judge of the credibility of the
witnesses and of the weight to be given their testimony. See TEX. CODE CRIM. PROC.
ANN. art. 36.13 (West 2007), art. 38.04 (West 1979); see also Taylor v. State, 19
S.W.3d 858, 862 (Tex. App.—Eastland 2000, pet. ref’d). As such, the jury was free
to accept or reject any or all of the testimony of any witness and was free to draw
reasonable inferences from the evidence presented. See Jackson, 443 U.S. at 319;
Sanders, 119 S.W.3d at 820. We have reviewed the evidence in the light most
favorable to the verdict, and we hold that a rational trier of fact could have found
beyond a reasonable doubt that Appellant possessed more than four grams of




                                          4
methamphetamine. See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638. We
overrule Appellant’s sole issue on appeal.
                                   V. This Court’s Ruling
       We affirm the judgment of the trial court.




                                                            MIKE WILLSON
                                                            JUSTICE


July 14, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Countiss.4

Bailey, J., not participating.




       4
         Richard N. Countiss, Retired Justice, Court of Appeals, 7th District of Texas at Amarillo,
sitting by assignment.

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