                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-17-00292-CR
                                  ________________________


                        AQUORIDA EUGENE HARRIS, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 19th District Court
                                   McLennan County, Texas
              Trial Court No. 2016-1072-CI; Honorable Ralph T. Strother, Presiding


                                           April 29, 2019

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Aquorida Eugene Harris, was convicted following a bench trial of

possession of a controlled substance (methamphetamine) in an amount of four grams or

more but less than two hundred grams, with intent to deliver, a first degree felony.1


      1   See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2017).
Appellant’s range of punishment was enhanced by a prior felony conviction and the court

assessed his sentence at forty-years confinement.2 In a single issue, Appellant asserts

that because the indictment did not allege the amount of methamphetamine Appellant

possessed included adulterants or dilutants, the evidence is insufficient to show he

possessed the requisite weight of methamphetamine in a pure form.3 The trial court’s

judgment is affirmed.


        BACKGROUND

        In July 2016, an indictment issued alleging that on or about April 11, 2016,

Appellant knowingly possessed with intent to deliver a controlled substance,

methamphetamine, in an amount of four grams or more but less than two hundred grams.

It also contained an enhancement paragraph alleging that on September 27, 2007,

Appellant was finally convicted of felony possession with intent to deliver a controlled

substance, methamphetamine (enhanced).


        At the bench trial, the State’s evidence established that on April 11, 2016, at 3:00

a.m., Officers Jeremy Finch and Ruston Thompson approached a car in the parking lot

of an apartment complex because its doors were open and there appeared to be no one

in the car. As they approached on foot, two persons exited the car and started walking




        2 In September 2007, Appellant was finally convicted of possession of a controlled substance,
methamphetamine, with intent to deliver. See TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2018). He
pleaded “true” to the enhancement.

        3 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between the precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal should be decided in accordance with the precedent of the transferor court. TEX.
R. APP. P. 41.3.

                                                     2
away. A black male exited on the driver’s side and Appellant exited on the passenger’s

side.


        When the officers spoke to Appellant, he told them his name was Roderick Wilson.

The officers ran his information through their computer, and nothing came up. They tried

a different spelling, but the same result was reached. When Officer Finch approached

Appellant to handcuff him for failing to identify himself, Appellant confessed that he was

lying about his identity and there was a warrant out for his arrest. When he was searched,

the officers found an ID card in his wallet bearing the name Aquorida Harris. Officer Finch

also discovered a small plastic bag in Appellant’s pocket containing a white-colored

residue.


        In the door pocket of the passenger’s side, the officers found a small glass pipe

adapted to smoke drugs. It appeared to have been used. The officers also found a Fuze

drink bottle with some clear plastic tubing that contained a white crystalline substance

along with the liquid. Officer Finch went back to his patrol car and asked Appellant about

the pipe and Fuze bottle. Appellant indicated that he did not know anything about the

items even though the items were easily visible from his seat in the car.


        In the back of the car, Officer Thompson found a small, green draw-style bag

containing a pill bottle and sunglasses case. There were also several small plastic bags

containing a white crystalline substance. The plastic bags were consistent with the plastic

bag retrieved from Appellant’s pocket. The bag also contained a small digital scale. The

pill bottle contained several multi-colored plastic bags and clear plastic bags that were

also consistent with the bag retrieved from Appellant. The sunglasses case contained


                                            3
small plastic bags like the bags in the pill bottle. The substance in the bags tested positive

for amphetamine and the contents of the Fuze bottle tested positive for

methamphetamine. A backpack in the trunk bearing Appellant’s name was found to

contain items consistent with the construction of the pipe—clear plastic aquarium tubing,

hot glue sticks, and soft grips for pens.


        After denying that he knew anything about what was in the green bag, Appellant

admitted that he was smoking from the Fuze bottle in the car. He also said the driver had

done nothing wrong and the items in the green bag belonged to him. The officers later

identified the car as belonging to the driver’s mother-in-law. When they weighed the

methamphetamine at the property room, after removing the packaging, the drugs

including the liquid containing methamphetamine, weighed 177.4 grams.                    The

methamphetamine in the bags alone weighed a total of 14.6 grams. Officer Thompson

testified that in his opinion, the sizeable amount of methamphetamine combined with the

digital scales and plastic bags indicated Appellant was a dealer.


       James Milam, a DPS forensic scientist, tested the methamphetamine recovered

from the incident. The liquid in the Fuze bottle weighed 155.13 grams and contained

methamphetamine. The items in the plastic bags weighed in excess of 9.8 grams and

were methamphetamine.


       Appellant testified in his defense that he did not own the drugs apart from the

baggie found in his pocket.        He admitted adapting the Fuze bottle for smoking

methamphetamine and he admitted smoking from the bottle in the car. He also agreed

with his counsel the Fuze bottle contained 155 grams of drugs and on cross-examination,


                                              4
admitted the Fuze bottle belonged to him. However, he denied knowing anything about

the green bag containing methamphetamine.


       In closing arguments, defense counsel candidly admitted that under the law, the

weight of a drug includes “any mixture, dilutant, any of those types of things,” and

Appellant had “admitted to the 155 grams” during examination. He also contended that

Appellant did not know anything about the green bag or its contents. The State asserted

the evidence was clear that Appellant had care, custody, and control over the green bag

and admitted to the arresting officers that he owned the green bag. Thereafter, the trial

court found Appellant guilty as charged in the indictment.


        Appellant asserts on appeal there is insufficient evidence supporting his conviction

because the State failed to allege in the indictment that the amount of methamphetamine

Appellant possessed included adulterants or dilutants. As a result, he contends the

evidence was insufficient to show he possessed methamphetamine in a pure form in an

amount within the applicable range of punishment alleged. We disagree.


       APPLICABLE LAW AND STANDARD OF REVIEW

       Section 481.112(a) states “a person commits an offense if the person knowingly

manufactures, delivers, or possesses with intent to deliver a controlled substance listed

in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017).4 To

prove the offense of possession with intent to deliver, as defined by section 481.112(a),

the State was required to show that Appellant (1) exercised “actual care, custody, control,



       4 Throughout the remainder of this memorandum opinion, provisions of the Texas Health and Safety
Code will be cited simply as “section ___” and “§ ___.”


                                                  5
or management” of the substance, (2) knew the substance possessed was contraband,

and (3) possessed the substance with an intent to deliver it. See TEX. PENAL CODE ANN.

§ 1.07(39) (West Supp. 2017); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005). Further, the accused’s connection with the controlled substance must be more

than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The

element of intent to deliver may be proven by circumstantial evidence. Jordan v. State,

139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.); Gonzales v. State, 761

S.W.2d 809, 815 (Tex. App.—Austin 1989, pet. ref’d).


       In determining the sufficiency of the evidence with respect to an intent to deliver,

we must presume the trier of fact resolved any conflict in favor of the prevailing party.

Jordan, 139 S.W.3d at 727. Factors that may be considered in determining intent to

deliver include the nature of the location of the defendant’s arrest, the quantity of drugs

possessed, the manner in which the drugs are packaged, the presence or absence of

drugs indicating use or sale, whether the defendant possessed a large amount of cash,

and the defendant’s status as a drug user. Reed v. State, 158 S.W.3d 44, 48-49 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d). In fact, possession of a large quantity of

drugs alone can be sufficient evidence to show an intent to deliver in the presence of

expert testimony by a law enforcement officer that the quantity at issue indicates an intent

to deliver. Id. at 49 (holding evidence is legally sufficient in light of expert testimony that

such a large amount was intended for sale); Simmons v. State, 100 S.W.3d 484, 491

(Tex. App.—Texarkana 2003, pet. ref’d) (holding evidence legally sufficient due to a large

amount of cocaine seized and expert testimony that such a large amount was intended

for sale).


                                              6
       The only standard of review recognized by the Texas Court of Criminal Appeals in

reviewing the sufficiency of the evidence necessary to support each element of a criminal

offense the State is required to prove beyond a reasonable doubt is the standard set forth

in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010).           Under that standard, in assessing the

sufficiency of the evidence to support a criminal conviction, this court considers all the

evidence in the light most favorable to the verdict and determines whether, based on that

evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Queeman v.

State, 520 S.W.3d 616, 623 (Tex. Crim. App. 2017). This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319. See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).


       Furthermore, in a proper analysis, the trier of fact is the sole judge of the weight of

the evidence and credibility of the witnesses; TEX. CODE CRIM. PROC. ANN. art. 38.04

(West 1979), and a reviewing court may not re-evaluate the weight and credibility

determinations made by the fact finder. Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim.

App. 2018). Thus, we resolve any inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).


       “The duty of the reviewing court is simply to ensure that the evidence presented

supports the jury’s verdict and that the State has presented a legally sufficient case of the

offense charged.” Queeman, 520 S.W.3d at 621. “Under this standard, evidence may

                                              7
be legally insufficient when the record contains either no evidence of an essential

element, merely a modicum of evidence of one element, or if it conclusively establishes

a reasonable doubt.” Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing

Jackson, 443 U.S. at 320).


       ANALYSIS

       Section 481.112(d) provides that possession of a controlled substance with intent

to deliver is a “felony of the first degree if the amount of the controlled substance to which

the offense applies is, by aggregate weight, including adulterants or dilutants, four grams

or more but less than 200 grams.” Thus, as to the weight of the controlled substance, the

State is not required to prove the pure amount of the controlled substance, absent any

adulterants or dilutants, as Appellant suggests. See Williams v. State, 936 S.W.2d 399,

405 (Tex. App.—Fort Worth 1996, pet. ref’d).


       Furthermore, to the extent that Appellant asserts there was some defect in the

indictment because it did not include the language “including adulterants or dilutants,” he

has waived that complaint. The Texas Constitution was amended in 1985 to define an

indictment as “a written instrument presented to a court by a grand jury charging a person

with the commission of an offense” and “[t]he presentment of an indictment or information

vests the court with jurisdiction over the cause.” TEX. CONST. art. V, § 12(b). As a result

of this amendment, defects in an indictment, even substantive ones, no longer deprive a

trial court of subject matter jurisdiction. Kirkpatrick v. State, 270 S.W.3d 324, 328-29

(Tex. Crim. App. 2009) (citing Teal v. State, 230 S.W.3d 172, 181-82 (Tex. Crim. App.

2007)). Now, a defendant must object to a substantive defect in an indictment before trial

or else he forfeits his right to object to such defect on appeal or by collateral attack. TEX.

                                              8
CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). The omission of an element of the

charged offense is considered a substantive defect that must be objected to before trial.

See Smith v. State, 309 S.W.3d 10, 18 (Tex. Crim. App. 2010). Therefore, to the extent

Appellant is asserting that the indictment in this case is defective because it did not allege

an element of the offense, he did not file a motion to quash the indictment or otherwise

complain before the trial began about the State’s failure to allege an element of the

charged offense, and accordingly, he has waived this issue. See id.; TEX. CODE CRIM.

PROC. ANN. art. 1.14(b).


        The State’s evidence at trial indicated that Appellant admitted to the police that he

was smoking from the Fuze bottle found in the car, that the driver had done nothing wrong,

and the items in the green bag belonged to him. Milam, a DPS forensic scientist, weighed

the items without packaging and determined that the liquid in the Fuze bottle containing

methamphetamine weighed 155.13 grams5 and the methamphetamine in the plastic bags

weighed 9.8 grams.              Officer Thompson opined that the sizeable amount of

methamphetamine found in the car, along with the digital scales and plastic bags

containing methamphetamine indicated Appellant was dealing in drugs. In addition, the

bag containing methamphetamine found on Appellant was consistent with the small

plastic bags containing methamphetamine found in the green bag, and the materials used

to adapt the Fuze bottle for smoking drugs were consistent with the materials found in

Appellant’s backpack. Furthermore, the outcome of the bench trial indicates that the trial



          5 Appellant asserts that because of the alleged defect in the indictment, the State was required to

establish the amount of methamphetamine in the Fuze bottle less the liquid. This is not an element the
State is required to prove. See Williams, 936 S.W.2d at 405. Moreover, because the chunks of
methamphetamine in the baggies weighed 9.8 grams, the State met its burden of proof independent of the
liquid in the Fuze bottle.

                                                     9
court gave very little, if any, weight to Appellant’s testimony that he was not the owner of

the methamphetamine in the green bag.


       Reviewing the evidence in a light most favorable to the verdict, we conclude that

there is sufficient evidence because a rational trier of fact could have found that Appellant

possessed methamphetamine in an amount of four grams or more but less than two

hundred grams, as measured “by aggregate weight, including adulterants and dilutants,”

with intent to deliver. § 481.113(a) and (d). See Jackson, 443 U.S. at 319. Appellant’s

single issue is overruled.


       CONCLUSION

       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                       Justice



Do not publish.




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