Opinion issued December 17, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-14-01010-CR
                           ———————————
                     MARCUS D. JACKSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1420051



                                 OPINION

      A jury convicted appellant, Marcus D. Jackson, of the third-degree felony

offense of possession of between one and four grams of phencyclidine, or PCP.

After finding the allegations in two enhancement paragraphs true, the trial court
assessed his punishment at thirty-five years’ confinement.1 In one issue, appellant

contends that the State failed to present sufficient evidence that he possessed more

than one gram of PCP.

      We affirm.

                                    Background

      On March 4, 2014, Houston Police Department (“HPD”) Officers J. Sneed

and D. Morelli were working an extra security job at an apartment complex in

southeast Houston. Officer Sneed had been working as a security officer at this

apartment complex for approximately five or six years, which he stated is “known

as the PCP capital of Houston.” He testified that he has “frequently” made narcotics

arrests at this apartment complex, and when he makes such an arrest, the individuals

are “typically” in possession of PCP.

      On the day of the offense, Officer Sneed parked his personal vehicle in a

parking lot at the complex, and the officers watched for suspicious activity.

Appellant entered the complex through a pedestrian gate and started walking down

a sidewalk and looking down the breezeways between each building, as if “he was

looking for someone.” Officer Sneed testified that because he had worked at the



1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.102(8) (Vernon 2010) (classifying
      phencyclidine as controlled substance in penalty group one); id. § 481.115(a), (c)
      (Vernon 2010) (providing that possession of between one and four grams of
      substance in penalty group one is third-degree felony).

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complex for several years, he was “fairly familiar” with the residents, but he had

never seen appellant before, which drew his attention. Appellant stopped at the end

of the parking lot and waited for four or five minutes before another man approached

him. Appellant and the other man started talking and walked out of sight into one

of the breezeways. Officer Sneed suspected that appellant was engaged in a

narcotics transaction, so he began driving toward where appellant had been standing.

While Officer Sneed moved his car, appellant walked out of the breezeway and

started quickly walking back toward the pedestrian gate.

      Officer Sneed parked his car, and both officers began walking toward

appellant. Officer Sneed testified that he could smell the odor of PCP when he got

within ten feet of appellant. Officer Sneed testified that the most common way

people at this apartment complex use PCP is to fill little bottles with liquid PCP and

then dip cigarettes in the PCP to smoke. Cigarettes dipped in PCP—or “PCP sticks,”

as Officer Sneed referred to them—have a “real strong” and “pungent” odor, almost

like nail polish remover. Officer Sneed could smell the odor of PCP before he began

to speak with appellant.

      Officer Sneed asked appellant if he lived at the apartment complex, and

appellant responded that he did not. Officer Sneed looked down and saw appellant

holding something in his right hand. He asked appellant “if he was holding a PCP

stick.” Appellant said “yes,” and he opened up his hand to show Officer Sneed a



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cigarette that had been dipped in PCP. Officer Morelli handcuffed appellant, and at

that point, Morelli discovered that appellant “had another PCP stick” in his left hand

as well. Appellant admitted, “I’ve had rough times at the house. I was just trying to

smoke them away.”

       In court, Officer Sneed identified State’s Exhibit 2 as “the PCP cigarettes, two

of them.” Officer Sneed agreed that the cigarettes appeared to be “in the same or

substantially the same condition as when [he] found them,” although he noted that

the forensics lab had pulled them apart for testing. Officer Sneed stated, “I can still

smell them even though it’s in three bags.”

       Officer Morelli testified that he bagged and submitted the narcotics evidence

for storage and testing. He characterized the narcotics evidence in this case as “PCP

cigarettes,” which he placed in a plastic bag and then sealed inside of an envelope.

Officer Morelli testified that State’s Exhibit 2 was “the same narcotics that [he]

found on the defendant,” which he identified as “two cigarettes.” Officer Morelli

stated that both cigarettes were the same brand, and he also agreed that the cigarettes

appeared “to be in the same or in substantially the same condition as when [he] found

them.” Officer Morelli stated on cross-examination that appellant had one PCP

cigarette in his right hand and one in his left hand at the time the officers encountered

him.




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      Mariam Kane, a chemist with the City of Houston Forensic Science Center,

conducted the lab analysis on the PCP cigarettes recovered from appellant on April

11, 2014, five weeks after appellant’s arrest. Kane testified that the two cigarettes

weighed 1.93 grams.      Kane also tested the cigarettes and concluded that the

cigarettes contained PCP. Kane testified that she has dealt with cigarettes that have

been dipped in PCP before, and she noted that both cigarettes were “discolored.”

She testified that when a cigarette tests positive for PCP, she weighs the entire

cigarette because most of the time when a cigarette is dipped in PCP “the whole

cigarette contain[s] PCP,” including the filter of the cigarette. Kane also testified

that “adulterants and dilutants” are “any substance that is added to a controlled

substance to increase the weight or the quantity of the controlled substance

regardless of the effect on the activity of the controlled substance.”

      Kane agreed with appellant, who represented himself pro se at trial, that a

cigarette absorbs whatever liquid it touches. Appellant and Kane had the following

exchange:

      [Appellant]:        PCP, it sucks in, it’s a fluid, it sucks in, it takes up
                          everything, filters everything, whatever it touches,
                          it’s pretty much what?
      [Kane]:             Contaminated, yes.
      [Appellant]:        Everything is pretty much contaminated?
      [Kane]:             Yes.




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      [Appellant]:        By whatever it touches? So it is safe to say that
                          when it touched this bag [in which Officer Morelli
                          placed the two cigarettes], this bag became
                          contaminated?
      [Kane]:             It’s possible, but I have to test inside the bag to tell
                          you for sure.

Kane testified that she received an envelope “containing a Ziploc containing two

discolored manufactured cigarettes.” Kane also testified that the two discolored

cigarettes were in the same bag when she received them for testing, but she then

separated them and placed them in separate bags after conducting the tests.

Appellant again asked whether anything the PCP touches becomes contaminated,

and Kane responded, “It’s possible it caused contamination, yeah, if it touch[ed] the

cigarette that contains PCP, yeah.”

      The jury found appellant guilty of the offense of possession of between one

and four grams of PCP. The trial court, after finding the allegations in two

enhancement paragraphs true, assessed his punishment at thirty-five years’

confinement. This appeal followed.

                            Sufficiency of the Evidence

      In his sole issue, appellant contends that the State failed to present sufficient

evidence that he possessed more than one gram of PCP. Appellant does not

challenge the fact that he possessed PCP; rather, he challenges solely the amount of

PCP that he possessed.



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      A. Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard

is only standard to use when determining sufficiency of evidence). The jurors are

the exclusive judges of the facts and the weight to be given to the testimony. Bartlett

v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge

of credibility, may accept one version of the facts and reject another, and it may

reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve

witness even when witness’s testimony is uncontradicted).

      We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).       We afford almost complete deference to the jury’s

credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.

App. 2008). 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); see also Clayton v.



                                           7
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in favor

of the prosecution and therefore defer to that determination.”). Circumstantial

evidence is as probative as direct evidence in establishing guilt, and circumstantial

evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152,

155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need

not point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      B. Possession of At Least One Gram of PCP

      To establish the offense of possession of PCP, the State had to prove that

appellant knowingly or intentionally possessed between one and four grams,

including adulterants or dilutants, of PCP. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(c) (Vernon 2010); see also Hubert v. State, 312 S.W.3d 687, 690 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (stating that prosecution must

demonstrate that defendant (1) exercised care, custody, control, or management over

contraband and (2) knew matter possessed was contraband).

      An “adulterant or dilutant” is “any material that increases the bulk or quantity

of a controlled substance, regardless of its effect on the chemical activity of the

controlled substance.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (Vernon



                                          8
Supp. 2015); see id. § 481.002(5) (defining “controlled substance” as “a substance,

including a drug, an adulterant, and a dilutant, listed in . . . Penalty Group 1 . . .” and

stating that term “includes the aggregate weight of any mixture, solution, or other

substance containing a controlled substance”). The State is not required to determine

the amount of controlled substance and adulterant or dilutant that constitute the

mixture. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003); Graham v.

State, 201 S.W.3d 323, 328 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)

(“[A]ny substance that is added to or mixed with a controlled substance, regardless

of when, how, or why that substance was added, may be added to the aggregate

weight of the controlled substance as an adulterant or dilutant.”) (quoting Seals v.

State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005)). Instead, the State only has to

prove that the aggregate weight of the controlled substance mixture, including any

adulterants and dilutants, equals the alleged minimum weight. Melton, 120 S.W.3d

at 344; Isassi v. State, 91 S.W.3d 807, 810 (Tex. App.—El Paso 2002, pet. ref’d).

Expert testimony by a police officer, based on visual observation and the officer’s

training and experience, that a substance is a controlled substance constitutes proper

evidence. See Melton, 120 S.W.3d at 343 (citing Henson v. State, 915 S.W.2d 186,

192 (Tex. App.—Corpus Christi 1996, no pet.)).

      Appellant does not contest that he knowingly or intentionally possessed PCP.

Rather, he argues that the State failed to present evidence that he possessed at least



                                            9
one gram of PCP because although both cigarettes confiscated from appellant were

weighed by Kane, and thus both cigarettes were included in her determination that

appellant possessed 1.93 grams of PCP, the State did not establish that both

cigarettes contained PCP at the time of appellant’s arrest. He instead argues that

only one cigarette contained PCP at the time of his arrest, that the PCP in that

cigarette “contaminated” the other, unadulterated cigarette because both cigarettes

were stored in the same bag for several weeks in between the time of appellant’s

arrest and the time Kane tested and weighed the cigarettes, and that as a liquid, PCP

has the potential to be absorbed into and contaminate anything that it touches.

      The officers testified that at the time of his arrest, appellant was holding two

cigarettes of the same brand and that appellant smelled strongly of PCP. Both

officers identified the cigarettes as “PCP cigarettes.” The cigarettes were admitted

into evidence at trial, and both officers testified that the cigarettes appeared the same

or substantially the same in court as they had at the time of arrest. Both cigarettes

appeared discolored at the time of trial. See Gabriel v. State, 900 S.W.2d 721, 722

(Tex. Crim. App. 1995) (plurality op.) (“It was rational for the factfinder to conclude

that identically packaged substances, which appear to be the same substance, are in

fact the same substance.”). The jury could reasonably infer from the evidence

presented that both cigarettes had been dipped in PCP at the time of appellant’s arrest

and that, therefore, both cigarettes were properly included in Kane’s analysis of the



                                           10
aggregate weight of the PCP. See Clayton, 235 S.W.3d at 778 (stating that fact

finder has duty to resolve conflicts in testimony, weigh evidence presented, and

“draw reasonable inferences from basic facts to ultimate facts”); see also Melton,

120 S.W.3d at 344 (holding that State is not required to determine amount of

controlled substance and amount of adulterant and dilutant but instead only has to

prove that aggregate weight of controlled substance mixture, including adulterants

and dilutants, equals alleged minimum weight). Kane testified that both cigarettes

tested positive for PCP and that, combined, the cigarettes weighed 1.93 grams.

      We conclude that, when viewing the evidence in the light most favorable to

the verdict, the jury could have concluded, beyond a reasonable doubt, that appellant

possessed at least one gram of PCP, including adulterants and dilutants. See Melton,

120 S.W.3d at 344; Graham, 201 S.W.3d at 329; Isassi, 91 S.W.3d at 810.

      We overrule appellant’s sole issue.




                                    Conclusion

      We affirm the judgment of the trial court.




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                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Jennings, J., concurring, joined by Keyes, J.

Publish. TEX. R. APP. P. 47.2(b).




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