                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-13-00523-CR
                             ____________________

                  LAMONT JOSEPH JOHNSON, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 128th District Court
                        Orange County, Texas
                     Trial Cause No. A-120517-R
__________________________________________________________________

                         MEMORANDUM OPINION

      A jury convicted Lamont Joseph Johnson of possession of a controlled

substance, and the trial court sentenced Johnson to ten years in prison. In two

appellate issues, Johnson challenges the sufficiency of the evidence to support his

conviction and contends that the trial court should have granted a mistrial on

Batson grounds. We affirm the trial court’s judgment.




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                            Sufficiency of the Evidence

      In issue one, Johnson contends that the evidence is insufficient to support his

conviction for possession of a controlled substance. Under a legal sufficiency

standard, we assess all the evidence in the light most favorable to the prosecution

to determine whether any rational trier of fact could find the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give

deference to the jury’s responsibility to fairly resolve conflicting testimony, to

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

facts. Hooper, 214 S.W.3d at 13.

      When responding to a call regarding a reckless driver in a black Dodge,

Detective Danny Hodges stopped a black Dodge because the driver, Johnson, was

not wearing a seatbelt. Johnson was holding a cup, and he volunteered that he had

been drinking coffee, not alcohol. Hodges testified that Johnson was sweating,

fidgeting, talking fast, and appeared nervous. Sergeant Richard Teague testified

that Johnson appeared uneasy and was sweating and shaking. Johnson could not

provide a driver’s license and gave a false name. The officers arrested Johnson for

failure to identify and for traffic warrants. Hodges testified that Johnson was in




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possession of $2,024 in cash. Hodges did not detect an odor of marihuana or

alcohol and did not find, see, or smell any cocaine.

      During an inventory of the vehicle, Teague smelled an odor of marihuana

and observed pieces of marihuana stems and leaves inside the vehicle. Teague

found Ziploc bags inside the console and saw what appeared to be cocaine floating

in Johnson’s coffee cup. Inside the coffee cup, Teague found a plastic bag that

contained pieces of cocaine. Rebekah Sweetenham, a forensic scientist, analyzed

the substance from the coffee cup and testified that the substance contained 1.79

grams of cocaine.

      On appeal, Johnson contends that the evidence is insufficient to support his

conviction because Sweetenham only tested a small piece of the evidence

collected. A person commits possession of a controlled substance if he knowingly

or intentionally possesses cocaine that is “by aggregate weight, including

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

Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (c) (West 2010). “‘Adulterant or

dilutant’ means any material that increases the bulk or quantity of a controlled

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

substance.” Id. § 481.002(49) (West Supp. 2014). The State need not test each and

every rock of cocaine, but need only prove that the aggregate weight of the cocaine

                                          3
mixture, including adulterants and dilutants, equals the alleged minimum weight.

Zone v. State, 118 S.W.3d 776, 777 (Tex. Crim. App. 2003); Melton v. State, 120

S.W.3d 339, 344 (Tex. Crim. App. 2003).

      Sweetenham testified that she does not test every piece of cocaine, but that

the pieces are “considered a bulk homogenous unit, meaning everything is even

and mixed thoroughly.” She explained that when a tested piece is found to be

cocaine, the “bulk unit, homogenous substance[]” is considered cocaine. Through

Sweetenham’s testimony, the State proved that the aggregate weight of the cocaine

mixture, including adulterants and dilutants, equaled one gram or more but less

than four grams, as alleged in the indictment. See Zone, 118 S.W.3d at 777;

Melton, 120 S.W.3d at 344. This is all the State was required to prove, and such

testimony is sufficient to support Johnson’s conviction. See Zone, 118 S.W.3d at

777; see also Allen v. State, 249 S.W.3d 680, 685 n.5 (Tex. App.—Austin 2008, no

pet.) (“The random sampling of apparently homogeneous substances contained

within a single receptacle is sufficient to prove the whole is contraband.”).

Viewing the evidence in the light most favorable to the verdict, the jury could find,

beyond a reasonable doubt, that Johnson committed the offense of possession of a

controlled substance. See Jackson, 443 U.S. at 318-19; see also Hooper, 214

S.W.3d at 13. We overrule issue one.

                                         4
                                 Batson Challenge

      In issue two, Johnson argues that the trial court improperly denied his

Batson challenge and should have granted a mistrial. “Mistrial is appropriate for

only ‘highly prejudicial and incurable errors.’” Simpson v. State, 119 S.W.3d 262,

272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex.

Crim. App. 2000)). We review the denial of a motion for mistrial under an abuse of

discretion standard. Id.

      After the jury was sworn in, Johnson made a Batson challenge to the State’s

use of strikes on panelists one and twenty. Per Johnson’s request, the trial court

took judicial notice of the fact that these two panelists, as well as Johnson, are

African-American. The State explained that it struck panelist one because she was

unemployed, not married, only had a GED, and refused to answer the State’s

questions regarding her feelings about “beyond a reasonable doubt.” The State

explained that it struck panelist twenty because she was unemployed and was

under the age of forty. The trial court denied Johnson’s Batson challenge.

      A Batson challenge involves a three-step process: (1) the “defendant must

make a prima facie case that a venire member was peremptorily excluded on the

basis of race[;]” (2) the State must present race-neutral reasons for its peremptory

strike; and (3) the defendant has an opportunity to rebut the State’s explanations.

                                         5
Id. at 268. The defendant must prove purposeful discrimination. Id. The record

does not indicate that the State’s explanations reflect an inherently discriminatory

intent. Nor did Johnson attempt to rebut the State’s reasons. “‘[U]nless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered

will be deemed race neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768

(1995)). Under these circumstances, we conclude that the trial court’s finding that

the State’s explanations were race-neutral is supported by the record and is not

clearly erroneous. See id. (Trial court’s denial of Batson challenge upheld when the

prosecutor’s explanations did not reflect an inherently discriminatory intent and the

appellant made no attempt to rebut the State’s reasons.). The trial court did not

abuse its discretion by refusing to grant a mistrial on Batson grounds. See id. at

272. We overrule issue two and affirm the trial court’s judgment.

      AFFIRMED.


                                             ___________________________
                                                  STEVE McKEITHEN
                                                       Chief Justice

Submitted on November 3, 2014
Opinion Delivered November 12, 2014
Do Not Publish

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


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