                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-142-CR


MORIS L. RICHMON                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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I.    Introduction

      Appellant Moris L. Richmon was convicted by a jury of two counts of

possession of controlled substances in the amount of one gram or more but less

than four grams, namely cocaine and heroin.2 In his first and second points, he


      1
          … See Tex. R. App. P. 47.4.
      2
      … See Tex. Health & Safety Code Ann. §§ 481.102(3)(D) (Vernon Supp.
2008), 481.115 (a), (c) (Vernon 2003).
argues that the evidence was legally and factually insufficient to show

possession of heroin in the amount of one or more but less than four grams.3

In his third and fourth points, he argues that the evidence was legally and

factually insufficient to show he possessed cocaine in the amount of one or

more but less than four grams. We affirm.

II.   Factual and procedural background

      Appellant was riding his bicycle on a dark street at 4:00 a.m. on April 24,

2007, when Kennedale Police Officer Joshua Worthy pulled him over because

of an obscured rear reflector and lack of a front light. Officer Worthy asked

Appellant for identification and ran his name to check for warrants. He took

Appellant into custody for outstanding warrants and searched him incident to

arrest. Officer Worthy found two cardboard matchboxes in Appellant’s left

front pants pocket; one box contained matches but the other contained two

white rock substances that Officer Worthy described as appearing “consistent

with rock cocaine.” From Appellant’s right front pants pocket, Officer Worthy

recovered another matchbox containing thirty-two clear capsules full of a brown

granulated material.    Officer Worthy used a field test kit to perform a




      3
       … Rather than addressing the heroin evidence first, Appellant initially
discusses the cocaine evidence in the body of his argument. We will address
the arguments in the order of his listed points of appeal.

                                       2
preliminary test for cocaine on the rock-like substances and then packaged and

processed the items for further testing. Appellant was indicted on two counts,

possession of cocaine and possession of heroin.

      Christina Coucke, a senior drug chemist at the Tarrant County Medical

Examiner’s office, testified about the results of her tests on the rock substance

and brown capsules. Coucke’s educational background included a bachelor of

science degree in biology and a master’s degree in forensic science.         She

testified that she had previously worked as a drug chemist at the Dallas County

Medical Examiner’s office before her current employment.

      Coucke analyzed the substances found in the matchboxes received from

the Kennedale police department. She stated she weighed the “hard off-white”

rock substance and found it weighed 1.20 grams. She performed a color test

on “a little bit” of the rock substance by adding it to a liquid solvent to allow

for a color change; the result was presumptively positive for cocaine. She then

used a gas chromatograph mass spectrometer to further examine the

substance; the process “breaks apart the molecules” of a small amount of the

substance and then “reads the fragments.” The spectrometer analysis revealed

that the substance contained cocaine.

      Coucke testified she took the thirty-two capsules from the matchbox,

emptied the capsules (one of which contained only residue), and weighed the

                                        3
substance in each one, individually; the aggregate weight was 4.06 grams.

Coucke stated she performed “a couple of different” color tests on the brown

substance, and it tested “presumptively positive for heroin.” She then weighed

a 1.08 gram sample of the 4.06 grams and used the spectrometer to determine

that the sample contained heroin.

       Additionally, Coucke said her analyses of both substances included

adulterants and dilutants. Under cross-examination, Coucke confirmed that her

lab performs qualitative analyses, rather than quantitative analyses, meaning

she just identifies what the substance is. Coucke explained that quantitative

analysis is when an examiner deciphers the amount of the substance in the

total matrix. She testified that she had examined crack cocaine around 500 to

1,000 times in her duties and that she had previously testified as an expert

witness in Tarrant County courts.

       The jury returned a verdict of guilty for both possession counts and

assessed a punishment of three years’ confinement for the cocaine possession

offense and five and one half years’ confinement for the heroin possession

offense.

III.   Appellant’s first and second points

       We will discuss Appellant’s first two points together as they regard the

sufficiency of the evidence supporting the possession of heroin conviction and

                                       4
his third and fourth points together as they regard the evidence for the

possession of cocaine conviction. Appellant’s main argument in his first two

points is that the scales used to weigh the substances and the spectrometer

used to confirm the presence of heroin in the substances were not “certified”

or tested and that the chemist did not test all of the material; thus the evidence

is insufficient to establish Appellant’s possession of the alleged heroin was in

an amount of one gram or more but less than four grams.

      A.    Legal sufficiency of evidence for heroin possession

            1.     Standard of review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).            This standard gives full play to the

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

the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at

778. The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown

                                        5
v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).                Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).        Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

            2.     Applicable law and analysis

      The State is required to prove every element of an offense beyond a

reasonable doubt. See Juarez v. State, 198 S.W.3d 790, 793 (Tex. Crim. App.

2006) (stating that elements of the offense must be charged in the indictment,

submitted to jury, and proved by the State beyond reasonable doubt.) The

substantive elements of Appellant’s offense are that he (1) knowingly or

intentionally (2) possessed (3) heroin and (4) the amount possessed was, by

aggregate weight, including adulterants or dilutants, one gram or more but less




                                        6
than four grams.    See Tex. Health & Safety Code Ann. § 481.102(2), §

481.115(a), (c).

      Appellant does not contest the sufficiency of evidence that he knowingly

or intentionally possessed the substance.      Rather, Appellant argues that

because “there was no evidence that the scales were certified nor tested to be

sure they were accurate,” the evidence is insufficient to establish beyond a

reasonable doubt that the substance weighed one gram or more but less than

four. He also contends that there was no evidence that the spectrometer was

certified or tested to be sure the results were accurate, so the evidence was

insufficient to prove beyond a reasonable doubt that the substance was heroin.

      The jury heard evidence from Coucke, whose qualifications and

experience were not questioned. She weighed the substances and performed

the tests at the Tarrant County Medical Examiners’ office laboratory that is

accredited by the Texas Department of Safety. Coucke explained her process

for attaining the heroin test results from both the color tests and spectrometer

and stated how the results from the presumptive tests and from the

spectrometer were consistent. The jury also heard Coucke describe the process

of weighing the brown substance from each capsule, determining the aggregate

weight and then later weighing a sample of 1.08 grams of the substance, which

was a sufficient weight to meet the requisite amount of one gram or more but

                                       7
less than four grams as charged, before testing that sample with the

spectrometer.

      Appellant’s complaints that there was no evidence of the scales and

spectrometer having been certified or tested to determine their accuracy are

complaints regarding what the State must prove for admissibility of the

testimony for the weight and results of the tests and arguably should have been

raised by objection to the admissibility of the results at trial. See, e.g., Hewitt

v. State, 734 S.W.2d 745, 749 (Tex. App.—Fort Worth 1987, pet. ref’d)

(holding complaint as to lack of predicate showing that equipment was certified

waived where counsel for defendant failed to inquire about specific equipment

used or to offer evidence from any other source that equipment was faulty or

uncertified); Moseley v. State, 696 S.W.2d 934, 936 (Tex. App.—Dallas 1985,

pet. ref’d) (holding waiver of right to object to improper predicate occurred by

allowing   earlier   witness   to   testify   without   objection   to   the   alcohol

concentration); cf., Hernandez v. State, 819 S.W.2d 806, 817 (Tex. Crim. App.

1991) (holding the state was not required to prove use of properly compounded

chemicals in atomic absorption kit test as predicate for admissibility), cert

denied, 504 U.S. 974, 112 S. Ct. 2944 (1992).

      Assuming that these matters were required to be affirmatively shown by

the State as a predicate for admissibility of the weights found and the results

                                          8
of the spectrometer testing, we conclude that Appellant’s complaints—in the

absence of an objection—go only to the weight of the evidence and its

credibility rather than the competency or admissibility of the evidence. See,

e.g., LaGrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.) (holding most

questions concerning care and custody of a substance go to the weight rather

than the admissibility of the evidence), cert. denied, 522 U.S. 917, 118 S. Ct.

305 (1997); Harrell v. State, 725 S.W.2d 208, 213 (Tex. Crim. App. 1986);

Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985) (holding lack of

predicate to show proper chain of custody for key, absent objection, went to

weight of evidence rather than admissibility), cert. denied, 475 U.S. 1031, 106

S. Ct. 1238 (1986); see also Hamilton v. State, No. 06-07-00084-CR, 2008

WL 2744635, at *3 (Tex. App.—Texarkana July 16, 2008, pet. filed) (holding

complaint as to insufficiency of evidence that amount of cocaine exceeded one

gram actually challenged credibility of chemist’s testimony, acceptance of

which was within jury’s prerogative).

      The jury was entitled to draw inferences from the facts regarding the

accuracy of the laboratory testing devices in determining the requisite amount

of heroin possession.   See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W.3d at 778. The jury could reasonably have inferred that the

scales and spectrometer were accurate and certified from the evidence that the

                                        9
lab was accredited by the DPS and from Coucke’s own experience and

educational background, as well as from the differing weights found for each

substance and the consistency with the presumptive tests.           Viewing the

evidence in the light most favorable to the verdict, we hold a rational jury could

have concluded beyond a reasonable doubt that Appellant possessed the

requisite amount of the controlled substance heroin. Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.           Therefore, we overrule

Appellant’s first point regarding the legal sufficiency of the evidence for

possession of heroin.

      B.    Factual sufficiency of evidence for heroin possession

      Appellant argues that the evidence is factually insufficient and states “the

record is absolutely void of any evidence that the scales and machine were

certified nor tested to show that the results of the weights and substance were

accurate.” He also argues that Coucke’s testimony regarding the quantity of

the heroin measuring over four grams was insufficient to show he possessed

over four grams.

            1.     Standard of review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,

                                        10
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the

evidence supporting the conviction, although legally sufficient, is nevertheless

so weak that the factfinder’s determination is clearly wrong and manifestly

unjust or whether conflicting evidence so greatly outweighs the evidence

supporting the conviction that the factfinder’s determination is manifestly

unjust.   Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);

Watson, 204 S.W.3d at 414–15, 417.

            2.    Analysis

      The jury heard ample and uncontradicted testimony from Coucke about

her testing process and the accredited facility in which she performs the tests.

The fact that she repeatedly weighed the brown capsules, first to determine

aggregate weight and, second, to weigh a small portion for the spectrometer

test, provided evidence supporting the conclusion that the stated amount of

heroin was sufficient under the statute’s requirements. See Hamilton, 2008 WL

2744635, at *3 (stating jurors “believed the chemist’s testimony and accepted

her calculations, which was their prerogative.”)

      Appellant also argues that the evidence supporting the substance quantity

requirement is factually insufficient because there was an “implication that he

possessed four grams instead of barely over one gram . . . and the evidence

was factually insufficient to show he possessed over four grams.”

                                      11
      The offense at issue requires that the Appellant possess between one and

four grams of the controlled substance (heroin). See Texas Health & Safety

Code § 481.102(2).      Coucke stated that she tested 1.08 grams of the

substance, an amount that comports with the statute’s requirement for

possession.   See id. § 481.102(2).     Conviction did not require legally or

factually sufficient evidence of more than four grams because Appellant was

not charged with possessing over four grams and because the jury was not

instructed to determine if Appellant possessed over four grams; rather the

charge described the offense as possession of “heroin of one gram or more but

less than four grams as charged in Count Two of the indictment.” 4

      Considering all of the evidence in a neutral light, we cannot say that the

evidence is so weak that the jury’s verdict seems clearly wrong or manifestly

unjust.   Watson, 204 S.W.3d at 414.       And because there is no contrary

evidence, we cannot say the verdict is against the great weight and



      4
       … Appellant also contends that the implication from the testimony that
he possessed more than four grams “affected the jury in assessing
punishment.” Appellant did not object on this basis at trial, and he has not
briefed this complaint nor explained why the jury was not properly entitled to
consider that evidence in assessing his sentence. See Tex. Code Crim. Proc.
Ann. art. § 37.07(3)(a)(1) (Vernon Supp. 2008) (stating evidence may be
offered as to any matter the court deems relevant to sentencing, including
circumstances of offense for which he is being tried as well as any other
evidence of an extraneous offense or bad act shown beyond a reasonable doubt
by evidence to have been committed by the defendant).

                                      12
preponderance of the evidence.        Id. at 414–15.   We overrule Appellant’s

second point challenging the factual sufficiency of the evidence supporting the

heroin conviction.

IV.   Appellant’s third and fourth points

      A.    Legal sufficiency of evidence of possession of cocaine

      Appellant argues that the evidence is legally insufficient to support the

possession of cocaine count for the same reason, because the scales and

spectrometer used to measure the cocaine were not certified or proved to be

functioning properly. He also argues that it is unclear whether both rocks of

the white substance were weighed.5

            1.       Applicable law

      Under the relevant statutes, the State must prove beyond a reasonable

doubt that Appellant (1) knowingly or intentionally (2) possessed (3) cocaine

and (4) the amount possessed was, by aggregate weight, including adulterants

or dilutants, one gram or more but less than four grams. See Tex. Health &

Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (c).




      5
       … This latter argument again is resolved by the previously cited Melton
decision, stating that each part of a homogenous substance does not have to
be tested to provide proof of the controlled substance under the statute. See
Melton, 120 S.W.3d at 342–44.

                                        13
            2.    Analysis

      As we have held above with respect to the possession of heroin count,

the jury was entitled to draw inferences from the facts regarding the accuracy

of the laboratory scales and spectrometer in determining the amount of cocaine

possession. Coucke testified that she weighed the “hard off-white material,”

and it weighed 1.20 grams. She performed a color test on a small portion of

the material, which tested presumptively positive for cocaine, and confirmed

that the substance contained cocaine by the gas spectrometer. Additionally,

the random, representative portion tested by the gas spectrometer was taken

by Coucke from material weighing within the required range of one gram or

more under the possession statute cited in Appellant’s indictment, and both

rocks were taken from the same receptacle, i.e, a single matchbox, so it is

irrelevant whether Coucke tested both rocks. See § 481.115(a), (c); Melton,

120 S.W.3d at 345 (holding that State could randomly sample some rocks to

determine whether they contained cocaine where all rocks were found in same

receptacle and all had same color and texture); Guia v. State, 220 S.W.3d 197,

201–03 (Tex. App.—Dallas 2007, pet. ref’d).

      Based on the previously-explained legal sufficiency standard of review,

viewing the evidence in a light most favorable to the prosecution, a rational jury

could have found beyond a reasonable doubt that Appellant possessed the

                                       14
requisite amount of cocaine under the statute. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789. We therefore overrule Appellant’s third point.

      B.    Factual sufficiency of evidence of possession of cocaine

      Appellant argues in his fourth point that the record is unclear as to

whether both rock-like substances of the alleged cocaine were tested and

weighed.    He argues that the evidence is too weak and thus factually

insufficient to support the conviction for possession of cocaine of one gram or

more but less than four grams.

            1.    Analysis

      The testimony from Officer Worthy was uncontradicted that he found

both pieces of the rock-like substance in the same receptacle—i.e.—a cardboard

matchbox in Appellant’s left front pants pocket. His testimony was further

uncontradicted that the appearance of the substances was consistent with rock

cocaine. He packaged and processed the substances for further testing after

conducting a preliminary field test of them for cocaine. The jury could have

inferred that the preliminary test was presumptively positive for cocaine.

      Coucke testified that she weighed the “hard off-white material,” and it

weighed 1.20 grams. She said a sample color tested presumptively positive for

cocaine. The sample was also confirmed to contain cocaine by her testing with

the spectrometer. While it is unclear whether she either weighed both rocks

                                      15
together or whether she tested a sample of both rocks, her conclusion is clear

and unquestioned that the sample was taken from an amount that weighed

1.20 grams, which is within the required range under the possession statute

cited in Appellant’s indictment. All of the material was admitted into evidence,

and the jury could make its own determination as to whether the rocks

appeared to be the same in substance. Thus, it is immaterial whether Coucke

weighed or tested only one or both rocks. See Tex. Health & Safety Code Ann.

§ 481.115(a), (c); Melton,120 S.W.3d at 343–44; Zone v. State, 118 S.W.3d

776, 776 (Tex. Crim. App. 2003); see also Guia, 220 S.W.3d at 201–03.

         It is unclear why the testimony elicited from the chemist by the State in

this case was not more detailed.       Nevertheless, we will not substitute our

judgment for that of the jury. See Laster v. State, 275 S.W.3d 512, 518 (Tex.

Crim. App. 2009); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008 (2000). Reviewing all

the evidence in a neutral light, we hold the evidence introduced to support the

verdict is not so weak that the jury’s verdict seems clearly wrong or manifestly

unjust.    See Watson, 204 S.W.3d at 414.        We overrule Appellant’s fourth

point.




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V.   Conclusion

     Having overruled all four of Appellant’s points, we affirm the trial court’s

judgment.


                                           PER CURIAM

PANEL : GARDNER, LIVINGSTON, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 7, 2009




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