*1 proposed cause the definition sub-
stantially Finally, correct. the trial court
correctly question refused to submit a because,
negligent promotion under the facts
of this Triplex duty owed no to the
injured Consequently, officers. we reverse judgment court of Riley Gray nothing
order that take
Triplex. Dallas, Boyd, appellant.
Lawrence for G. Vance, Atty., John Dist. Suzanne K. Per- kins, Allong Wallace, Rae-Ann & Sherrie Dallas, Attys., Huttash, Asst. Dist. Robert Austin, Atty., State’s for the State. GABRIEL, Appellant, Juan Jesus Texas, Appellee. The STATE of OPINION ON APPELLANT’S PETITION
No. 088-93.
FOR DISCRETIONARY REVIEW
Texas,
Court of
Appeals
Criminal
MeCORMICK, Presiding Judge.
En Banc.
Appellant was convicted of the unlawful
March
1995.
possession with intent to deliver a controlled
weighing
grams
but less than
grams. V.T.C.A.,
Texas Health and
481.112(c).
Safety,
Section
A
assessed
punishment
twenty-five years’
confine
ment. This conviction
was affirmed
Dallas
Appeals
published opin
Court of
in a
(Tex.
ion. Gabriel v.
1992).
App.
granted
We
discretion
— Dallas
ary review to determine whether the Court
holding
erred in
the evidence
appellant
sufficient to
possessed
show
co
greater
caine in an amount
grams
than 28
grams
fifty-
where
2.237
in five of the
baggies containing
four
the substance were
scientifically tested. We shall affirm.
Appellant contends the evidence was insuf-
quantity
ficient to
ex-
cess of 28
because the State was
required
enough
to test
substance to meet
alleged weight
amount since the sub-
packaged
packages.
stances were
in different
Spencer
Police officer
appellant
testified
house,”
“trap
arrested with the
apartment
exclusively
selling
used
ille-
gal
fifty-four
narcotics. The State seized
baggies,
containing
two or three individ-
*2
however,
parties
“rocks,”
top
precisely
The
because the
raise
ual
from on
of a dresser.
issue,
chemist, Bunn,
important
likely
the
to re-
testified she tested five of
a difficult and
test,
cur,
been,
be,
fifty-four baggies.
spot
gas
did
She
has not
but should
“which
spectrometry
Appeals.”
chromatograph,
by
a mass
the
of
and
settled
Court
Criminal
200(c)(2).
baggie,
spot
one
fail to
Tex.R.App.Pro.,
on
contents of
did a
Rule
We
test
bag-
duty
gas chromatograph
jurisprudence
and
on two
honor
test
our
to
spot
test on two more. She
momentous
gies,
State when we treat
issues
visually
baggies, finding
enough
inspected the other
attract our attention in the first
to
virtually
to
disser-
place
their contents
be
iden-
with such short shrift. We do a
them and
bar,
nothing
to
to
tical
the ones she tested. The
vice
the bench and
and show
disrespect
parties
all
with a total
them-
contents were
99%
short of
selves,
grams.
weight
ignore
complexity
total
of
of
weight of 2.237
The
when we
issues,
presented
squarely
of all
was 35.2
and well
the contents
hard
briefed,
of the untested
as that
here.
Bunn concluded the contents
such
raised
all
cocaine.
dispo-
Ultimately I agree with the Court’s
light
Viewing the evidence in the
most
today.
than
sition
But I am far less certain
verdict,
to the
we hold the State
favorable
jury
plurality
could find
that a rational
proof.
met its minimum burden
Jackson
sub-
doubt that various
a reasonable
307, 318-19,
Virginia, 443
99 S.Ct.
U.S.
they
simply
are the same
because
stances
2781, 2788-89,
(1979);
affirmed. purchased a had substance at tial informant police had “verified” location
CLINTON, concurring. Judge, warrant, executing the search cocaine. the apartment the door to Court officers discovered every issue this exer- Would block, simple a wood another was barricaded with its to review were as cised discretion “trap top house.” On plurality as the believes characteristic straightforward fifty-four is, course, found small reality of the dresser officers one this to be! The containing baggies, several “rocks” simple worth this Court’s issues that suspected was and a effort, since, crack presumably, the vari- what time positive for proved test pistol. re- A field appeals can be trusted to loaded courts of ous cocaine, although officers conceded one We without our interference. solve them cause, “spot” are not conclusive. that such tests discretionary review granted suspected crack percent, cocaine was forward- nine and the total lab, ed to the forensic where it was examined twenty-five material was seven hundred analyst forensic Andrea milligrams. Bunn. On her bags, On two additional I did *3 direct examination Bunn just two, testified: spot test on the and that indi- present cated to me that there was cocaine
“Q. Okay. you briefly Could describe in comparison with the others that —the type analysis what you perform? did zip plastic bags lock analyzed. that I had A. There per- were three tests that were weight The total of the hard ma- off-white formed on the fifty-four contents of [the fifty-four terial zip plastic bags in all lock baggies], one: a color spot test or a test. thirty-five point grams. was two presumptive It’s a test used to determine might present what be in the Ma’am, substance. Q. thirty-five point grams A gas second chromatograph test is mass greater twenty-eight an amount than test, spectrometry specifically which iden- grams? but less than two hundred tifies present, what chemical is and the Yes, A. it is. test, gas test, third chromatograph which Q. Okay. Bunn, your Mrs. based on helps in quantitating, telling or how analysis conducted, you your scientific much present. of a chemical is analysis, your training, your experience in Ma’am, Q. the last you two tests that doing work, type you did have or mentioned, special are these done with sci- you opinion did form an about the remain- equipment? entific bags der of you actually did not A. Yes. you test? opinion Did form an as to what Q. Okay. And your analysis what did those substances were? show, ma’am? [Objection overruled] My analysis A. showed that there was my A. opinion, my analysis of the present zip plastic bags. lock bags, other five the fact that all the materi- n n * * * * al in bags appeared the rest of the to be Q. Okay. Bunn, same, Mrs. you briefly could my opinion pres- there is cocaine your analysis showed that it was ent.” describe — cocaine. How you much—could describe On following cross-examination the collo- how much percentage cocaine or what of quy occurred: you found? “Q. amount, What was the total what was A. In one of zip plastic lock weight the total you the substance that analyzed, that I where three tests were cocaine, you identified as scientifically performed, mentioned, the three that I tested? test, spot gas chromatograph, mass spectrometry test, and the gas chromato- n [*] n n n n test, graph zip plastic bag, lock point A. ... Two two three seven amount of cocaine eight found was hun- Q. Okay. twenty- So that is less than thirty dred milligrams, ninety- seven eight grams, is that correct? percent. nine weight And the total A. Correct. material, itself, eight hundred and thirty-nine milligrams. Q. remaining thirty, approximate- So the bags,
On two other analyses, ly thirty-three test, did two grams, you did not spot gas test and the chromatograph that correct? test. On one bags, the amount of A. Correct. cocaine found sixty- was six hundred and Q. right. may cocaine, All So that milligrams, four ninety-nine percent, and may not be is that correct? the total of that material was six possible, yes. A. It’s seventy-one milligrams. hundred and On bag, the second the amount of Q. possible seven hun- It’s that it is and it’s twenty-five dred and milligrams, ninety- possible it’s not cocaine? consistency take account the into
A. Correct. you other —other—what be the believed n n : n ‡ n sjc you into other cocaine? Did take account Q. analyze Okay. Whose decision size, pack- whole appearance, all to the is submitted age? portion of it? institute do a Yes, looking A. I did in at the fact that do, it’s deciding A. As to the what packaged way in all the same were decided, basically, by funding. Because zip plastic bags, coloring the same size lock doing analysis, cost of it’s decided same; the texture material was them. that we can’t afford to do of the material all hard off-white mate- *4 Q. money a It’s consideration? looking things, rial. at those opinion that all co- formed the were A. Correct. caine.” A. Correct. was submitted to correct? as to that same substance that Q. Okay. n you the remainder of the substance that looked n If —the basis of at [*] you it; you analyzed, it is based ¾{ appeared your opinion n on the fact to be the n that 28 but vated Appeals held that whole For all cient & A three Safety appellant possessed to amount, testimony. less practical prove beyond Code judge panel of the Dallas Court of than 200 that § purposes, 481.112(e) foregoing is, an amount a reasonable doubt this was Bunn’s V.T.C.A. evidence suffi in an (d)(1). more Health aggra than See 842 at 332-33 Gabriel v. S.W.2d Q. Okay. All came from the same 1992). (Tex.App. Dallas, Kaplan Justice source, — you assuming so are that the one Id., Apparently at find dissented. 333-35. it, looks so was cocaine and the other like precedents, majority ing no Texas both going to it’s be cocaine too? cite from Illi and the dissenter below cases fifty- Right. saying I’m that of the A. gist disagree nois and Florida. them, four, I did and those five was five give significance to ment seems to be what my opinion, and from —in it’s [sic] present fact that in the substance cocaine, the rest it. fifty-four separate recepta in case was found that, Q. Right, there is no—other than held, effect, in majority that be cles. The your opinion? is no there scientific basis apparently homoge cause the substance was A, There scientific basis the sense is a neous, that a ran the State could establish that it cocaine.” statistics by extrap sample and that dom examination, sample, that could find Back on re-direct Bunn olation from beyond a reasonable doubt that whole tinued: A. Correct. their “Q. First of charged with a drugs [******] request, fully analyzed, all, is that not correct? crime, wants Defendant, you would do so have all person at was what where that have addressed trapolation reasoned caselaw Kaplan single receptacle. disagreed, homogeneous from random sample proved believing from substance is found those question that sampling to be. Justice jurisdictions allow ex better in a that, Now, ma’am, Q. you earlier stated review, discretionary petition In his for know, your opinion, you be- you scientific similarity appear- appellant argues that materials, the ones the other other lieved justify enough to ance and texture are test, you cocaine also? did not to be sample to the jury extrapolation from A. Yes. degree of confi- requisite whole with dence, ma’am, doubt. We Q. be- viz: a reasonable forming opinion, question. granted petition his to address you had sides the fact 200(c)(2), at five, you supra. should least forming opinion, did Rule We other
725
doubt); People
jurisdictions
proof beyond
the cases from
reasonable
examine
other
Hill,
Ill.App.3d
524
invoked,
120 Ill.Dec.
court of
as well as
169
(1988) (“Where
separate
N.E.2d
recently
parties
cases
decided that the
other
bags
suspected drugs
or containers
our attention.
call to
seized,
bag
or container
conclusively
prove
tested to
must be
II.
[here, powder
substance
contains a controlled
sampling
It has been held that random
cocaine].”);
Ross
528 So.2d
homogeneous
wholly
apparently
Dist.1988) (two
(Fla.App.
plastic pack
of 92
single receptacle
within a
is suffi
single paper bag
ets all
test conclu
found
prove
cient to
that the whole is contraband.
cocaine;
sively
though con
powder
for
even
People Ohley,
Ill.App.3d
packets
alike,
look
tents of all 92
(1973) (89
N.E.2d
delivered
tablets
requisite
held insufficient
establish
time;
posi
at same
officer
twelve field-test
amount); Campbell v.
563 So.2d
LSD,
homoge
tive
and are
shown to be
Dist.1990)
(Fla.App.
(requisite amount to
neous;
then six more
delivery
show
offense not established “where
*5
LSD;
all
be
held admissible to show
89
cap
only tested
or
chemist
one
two heroin
LSD);
Yosell,
People
are
53 Ill.
tablets
v.
change purse.”);
a
v.
People
sules found in
289,
184,
App.3d
11
N.E.2d 735
Ill.Dec.
368
390,
120,
Maiden,
Ill.App.3d
210
155 Ill.Dec.
(evidence
(1977)
prove requisite
sufficient to
(1991) (evidence
569
120
insufficient
N.E.2d
amount, where one
of
tablet from each
ten
to
amount
all three
requisite
where
bag
single paper
found in
tested
suspected
positive,
bottles of
POP field-test
acid); People
for barbituric
v.
subjected
only
to
that
but
one
test
conclu
Kaludis,
888,
382,
Ill.App.3d
146
100 Ill.Dec.
POP);
Young,
sively
People v.
establishes
(1986) (conclusive
360
497 N.E.2d
test on
488,
290,
Ill.App.3d
220
163 Ill.Dec.
581
sample
pills
single bag
random
of
found in
(even
(1991)
though
bag
N.E.2d 241
three
prove requisite
to
of me-
sufficient
amount
gies
paper packets all
and numerous
found
size,
pills
thaqualone, where
all same
were
bag,
paper
one
evidence insufficient to show
density,
color
shape,
and
and
marked
each
only
and
requisite
baggie
where
one
amount
714”).
“Lemmon
packet
powder
and shown to
one
cocaine);
Riley,
see State v.
587
but
So.2d
suspected
found in
Where
contraband is
Cir.1991)
2
(testing
only six
(La.App.
130
of
however,
separate receptacles,
have
courts
powder
of
all
of 33
white
generally required
sample
a
that at least
enough
found in
can
to show all
are
trash
33
receptacle
jury
a
be tested before
cocaine).
say
beyond
can
with a level
a
of confidence
substance,
reasonable doubt that all of
Nevertheless,
the courts that
ad-
have
enough
jurisdic
at least
to establish the
specific question
that
dressed the
have held
amount,
tional
contains that
contra
only
sample
a
of crack cocaine need
random
Yosell,
People
supra; People
band. See
v.
v.
amount,
requisite
establish
be tested to
Games,
Ill.App.3d
94
49 Ill.Dec.
418
receptacle
in one
or in individ-
whether found
(chemist’s
(1981)
testimony
520
N.E.2d
that
v.
packets.
ual
Bond
538 So.2d
cannabis,
bags proved
one of
to be
Dist.1989)
(Fla.App.
(testing
only
one
bags together weighed requisite
that both
baggies sufficient to
all are
139 small
show
amount,
requisite
not sufficient to establish
cocaine, because,
co-
powder
“rock”
unlike
cannabis);
Ayala,
People
amount
v.
caine,
many
resembles
other sub-
which
Ill.App.3d
52 Ill.Dec.
422 N.E.2d
stances,
homogeneous, like
“rock” cocaine is
(conclusive
(1981)
sample
Meeks,
test of
sub
pills);
similar-looking
State v.
Dist.1989) (same
only
bags,
taken from
both
stance
one of two
(Fla.App. 3
as
So.2d 328
heroin,
(La.
Ballom,
positive
had
Bond);
of which
field-tested
“the criminalist testified cocaine base is by mixing powder made with bak-
ing soda and cooking water and it. The III. resulting crystalline will fall to the bottom long So as the State has satisfied its bur- up and is cut into smaller chunks. This production, may den of legitimately we ex- probative evidence is that the rocks were pect evidence, produce any, the accused to cut from ‘batch’ one of rock prima to counter that facie case. Bunn testi- separate Also, rather than sources. “funding” fied that a lack of limited her *7 rocks, time the criminalist looked at the ability sample to test a fifty-four from all they chunks, had broken into numerous baggies added, however, in this cause. She uniform in consistency. color and The that at request, a defendant’s she would ana- breakage criminalist stated was character- lyze drugs.” “all the It is doubtful that due containing istic of rocks cocaine.” process requires actually gener- the State to potentially exculpatory ate 856 S.W.2d at evidence. See testimony 80. We have no like (Tex.Cr. Miguel in San the any instant nor other evidence to App.1993). process Due require, does how- show that rock cocaine has distinctive charac- ever, indigent provided defendants be commonly teristics not shared other sub- investigate the resources to stances. It the existence of therefore more difficult to such evidence. See De Freece v. conclude that a bag- taken from one gie (Tex.Cr.App.1993); S.W.2d 150 positively proves McBride to be cocaine will support (Tex.Cr.App.1992); Ar- fifty-four the bag- inference that all 26.05(a), ticle gies contain V.A.C.C.P. cocaine to the level of confidence beyond a reasonable doubt. plurality today The “appel- observes that
Nevertheless, on the facts of this case I independent lant could have conducted chem- cannot conclude that appeals fifty-four the court of ical baggies tests on all to show erred to hold the State met its burden to did not contain the same substance.” produce justify evidence sufficient to in- Op. the at 722. Because the court of was beyond justified ference a concluding reasonable doubt that at that the State met its least 28 production, the substance contained in regard burden of I do not the fifty-four baggies the plurality’s was cocaine. The evi- observation as an unconstitutional dence does shifting show that the substances in all of proof of the burden of For here. baggies reason, were of appear- like texture and appellant whatever did not exercise right to was cocaine.2 were then process
his due
access whatever
stance
investigate
drug
coun-
to a
chemist
resources he needed to
submitted
State forensic
ter,
the total
possible,
prima
facie case. who testified
the State’s
Nevertheless,
grams.
plurality’s
naked
contents of
36.2
observa-
scientifically
misleading,
The chemist
tested the contents
improper
lead to
tion
and could
baggies.
of three of the 54
On the contents
burden-shifting
general run
in the
of cases.
Bottom,
spot
a
baggie
of one
the chemist conducted
e.g.,
supra.
State v.
This kind
test,
test,
gas chromatograph
and a mass
language
be eschewed.
should
spectrometry test which revealed
plurality neglects
responsi-
its
Because the
ninety-nine percent pure.
theOn
contents of
discretionary
bility as
court to ex-
review
baggies,
the two other
the chemist conducted
illuminate,
join
I
plain
judgment
spot
gas chromatograph
test
test
Court,
opinion.
plurality
but not
baggies,
nine-
which revealed
both
ty-nine percent pure.3 The cocaine scienti-
MANSFIELD, J., joins
opinion.
fically
weighed
than 28
less
From
of the similar
her visual observation
MALONEY, J., joins Parts I and II of this
coloring of
contents in
texture and
joins
judgment of
opinion and otherwise
baggies,
packag-
as well as the similar
other
the Court.
ing,
speculated that
untested
the chemist
BAIRD, Judge, dissenting.
However,
baggies also contained cocaine.
possible
the untested
she admitted it
Today,
presented
following
we
with
not contain
because their
did
question
impression:
alleg-
of first
eases
scientifically analyzed.
contents were not
aggravated
possession
offense of
of a
Appellant
possession
was convicted of
with
controlled substance where the
substance
intent
deliver
controlled
separately packaged,
trolled
weighing at
less than 200
least
but
analyze
scientifically
must the
a suffi-
Safety
&
Ann.
grams.4 Tex.Health
Code
packages
to establish the
cient number
481.112(c).
§
aggravated
Believing
ques-
amount?1
affirmative,
tion should be answered
reviewing
sufficiency
It is
true that
respectfully dissent.
evidence,
whether,
must
we
determine
reviewing
light
in the
most
after
the evidence
I.
any
prosecution,
of fact
favorable to
trier
Following
alleged “trap
could have found the essential elements of
raid on an
house,”
police
plastic
the crime
a reasonable doubt. Jack
Dallas
officers seized
307, 318-319,
containing
Virginia,
baggies,
two or three individ-
son
U.S.
*8
2788-2789,
(1979);
2781,
suspected
a
to be
729
7,
540,
exhibits,
(Tex.Cr.App.1990).
tested
numbers 6 and
contained
543
When
S.W.2d
substances; however,
challenge
sufficiency
with a
no controlled
faced
evidence,
exhibits, numbers 4 and 5 tested
we must insure that the State
other two
proven beyond
positively
“has
a reasonable doubt each
for cocaine.
every
element of the
crime and
zip-
4 included 101 small
Exhibit number
[provided]
plausible explanation
not
bags,
of which contained
locked
each
State,
the crime.”5 Butler v.
769 S.W.2d
granular
solid
substance. The State’s
234,
(Tex.Cr.App.1989),
237
overruled on oth
bags
of these 101 small
chemist tested 10
State,
154,
820
grounds;
er
Geesa v.
S.W.2d
substance in
and found that the
State,
(Tex.Cr.App.1991); Wright v.
161
603
bags
cocaine. The com-
small
contained
and,
(Tex.Cr.App.1980);
S.W.2d
bags
weight of all 101 small
bined
also,
§
Code Ann.
Tex.Penal
2.01.
re
however,
grams;
16.93
there was no evi-
358, 364,
Winship, 397 U.S.
90 S.Ct.
weight
bags
dence as to the
of the 10 small
(1970).
1072,
II. “rocks” the 91 untested included dilutants, apparently adulterants and he did A. identity determine the the substances (Tex. Thorpe S.W.2d comprising the untested rocks. App. pet.), no the Austin Court —Austin Appeals Relying upon addressed an issue similar to the our decisions Cawthon presented in Thorpe (Tex.Cr.App. issue the instant case. 348-349 S.W.2d 1992); 540,6 aggravated possession was convicted of and Reeves v. and, appeal, contended the evi- Court held the evidence was insufficient possessed prove aggravated possession: dence was insufficient he including least adul- Obviously, presented sufficient Id., terants and dilutants. S.W.2d at identity evidence of ille- named 549. The Court of recited the facts gal substance; 4 and 5 exhibits as follows: However, at least some cocaine. there At trial the State introduced into no evi- evidence that remainder of the police four dence exhibits that officers had was adulterants dilutants. *9 appellant’s apartment only at ex- seized and that The State’s chemist testified pres- the State’s chemist had tested for the hibits 4 and include 5 could adulterants. teaching ence controlled substances. Two of the Under the of Reeves and Caw- emphasis supplied 5. All unless otherwise indi- terant or dilutant as defined in McGlothlin State, (Tex.Cr.App.1988). cated. 856, McGlothlin, 860, de- S.W.2d we 749 Cawthon, 348-349, and, 6. 849 at S.W.2d fined "dilutants" as those Reeves, 542-543, "adulterants” and sub- 806 S.W.2d at we held that for specifically stances added to a controlled sub- aggravated drug cases the State where contends or stance to increase the bulk weight with intent of the controlled substances includes dilutants, quantity product and which do not prove final adulterants or the State must not activity of the illegal the existence affect the chemical controlled sub- of an substance but also remaining substance constitutes an adul- stance. 730
thon, leged along facts to with its this is not sufficient “Absent controlled dilutants, material exist in an amount show that the remainder of the adulterants and aggravat- in- consisted of intended to sufficient to raise the offense substances Id, final quantity crease the bulk or The hold- ed level. 548. cocaine], Thorpe product, adopted it be said in and should be [crack cannot is sound or that the remainder was an adulterant this Court. (em- Reeves, dilutant.” 806 at 544 S.W.2d case, In the instant the scientific added). assume,
phasis there- Even we conclusively proved presence of cocaine. fore, that was suffi- State’s evidence However, the amount tested was less than 28 4 and 5 cient establish exhibits Therefore, grams. proof absent conclusive cocaine and adulterants and “contained” through testing that untested scientific dilutants, absolutely there was no evidence baggies contain a sufficient amount of co- Thus, was all the exhibits contained. weight to 28 caine to elevate the at least juror no could rational determine an ele- grams, prove the State has failed grams doubt that of the 43.93 reasonable ment of the offense. apart- in appellant’s of substance seized ment, grams plus at least 28 was III. dilutants; adulterants and based on concurring opinion, Judge In his Clinton presented, been evidence could have foreign jurisdictions at the relies arrive more or it could have been less. i.e., holding sepa Thorpe, same in where packages suspected
rate or containers of seized, bag drugs have been of each support also in the Our conclusion finds in or container must be Appeals’ analysis Court of Criminal prove order to that it contains a controlled Reeves In Reeves the and Cawthon. op., Concurring pp. substance. 726-727. expert State’s testified that the entire also, 488, People Young, Ill.App.3d 220 bag containing amphetamine tents of a (1st 290, 296, 241, Ill.Dec. N.E.2d 247 163 581 However, weighed grams. also 29.76 he Miller, Dist.1991); Ill.App.3d People v. stated that he did determine 419, 421, 161 Ill.Dec. 578 N.E.2d weight bag amphetamine in the or (1st Dist.1991); Maiden, People v. weight of sub- the nature or the other 120, 125-127, Ill.App.3d Ill.Dec. stances in tab. The Court Criminal (1st Dist.1991); Camp N.E.2d 125-127 was insuffi- held that evidence (Fla.App. 3rd bell v. 563 So.2d delivery prove cient to of more than 28 Dist.1990); and, Ross 528 So.2d Reeves, amphetamine. Dist.1988). Thus, 1237, 1241 (Fla.App. 3rd In the present S.W.2d at 543-45. correctly ran Judge Clinton concludes the expert testified that the entire con- State’s sampUng dom of the contents containing tents of exhibits clearly identify insufficient the sub However, weighed there was 43.93 Concurring baggies. in aU stances co- testimony weight no as to the op., pp. 726-727. exhibits, caine in nor there testi- mony identity as to the However, Judge Clinton’s reb- beheve other the exhibits. substances upon anee circumstantial evidence untested is mis- the contents origi- Thorpe, (emphasis at 551 S.W.2d purpose as to nal). placed questions raises Judge concurring opinion. his CUnton B. such as the circum- contends seizure, the simüar texture Appeals’ reasoning Thorpe Court of stances *10 substances, pack- applicable Thorpe and color of the simüar is to the instant case. and the essentially baggies, in alleging aging an contents holds cases baggies of some of the aggravated possession of of a con- fact that contents offense cocaine, permits substance, positive the infer- trolled State must baggies remaining the al- untested prove through testing scientific ence jurisdictions Concurring p. also that without op., contain cocaine.7 make clear scienti flawed; reasoning deeply 727. is fic certain This if one we cannot be separate can packages not infer that the untested con- contents of or containers Consequently, tain cocaine from that do contain identical. circumstantial cocaine, why may may upon prove then one infer that not be relied substance, identity alleged untested of contain cocaine from the controlled fact that were found a crack house? IV. Although the circumstantial evidence noted light foregoing, would hold that by Judge highly probative ap- Clinton is alleged sep- when the controlled substance is pellant’s possess alleged intent arately packaged, must the State scientifical- see, substance, State, trolled Branch v. ly analyze pack- number of the sufficient 324, (Tex.Cr.App.1979), S.W.2d 325-326 I do ages aggravated to establish the amount. concurrently not proves believe that evidence holding Without such a the State is relieved identity of the substances because such proving its burden of each element of the qualitatively evidence is distinct. Consider offense. an example: possesses who defendant knowing guilty it to be cocaine is comments, I respectfully With these dis- possession of a controlled substance. sent. (Tex.Cr. State, 384,
Martin v. 753 S.W.2d contrast, App.1988). By a defendant who OVERSTREET, J., joins opinion. substance, possesses believing it to be co- caine, soda, actually but baking which is guilty possession a controlled sub-
stance, even he behaves a manner con- actually possess
sistent with one who cocaine. situations, In both the defendant’s intent Eugene CORNEALIUS, Appellant, Clifton evident from circumstantial evidence.8 How- ever, liability criminal defendant’s is en-
tirely contingent identity on the of the sub- Texas, Appellee. The STATE of stance. No. 238-94. As we noted in Stewart v. Texas, Court Criminal S.W.2d (Tex.Cr.App.1986), the iden En Banc. tity of a generally controlled substance is through analysis. determined chemical May 1995. e.g., Garcia v. 473 S.W.2d and, Aguero (Tex.Cr.App.1971); (1957).
Tex.Crim.
Similarly, Thorpe foreign and the cases from evidence, reliability apparent
7. of circumstantial rath- sufficient means of meet- testing, identity er proof through than scientific the State’s chemi- burden of alleged an cally analyzing baggie. controlled substance is undermined the substances Legislature’s recognition that it is not uncom- mon for a be offered substance to as a controlled Undoubtedly, 8. who intends to sell defendant substance, appear be a controlled an he innocuous substance which either mistak- reality, but in innocuous an substance. To enly knowingly believes to be misre- situation, Legislature address such a enacted presents behaves same as a defen- 482.002(a), Safety § Code Tex.Health & Ann. intending actually dant to sell what he knows to prohibits delivery which of a “simulated con- See, 5, supra. be cocaine. The Health and n. trolled substance.” Safety Code includes as considerations wheth- Further, represented er bearing requirements an innocuous substance is as a mind the Cawthon, Reeves, packaging, supra controlled supra, substance: the substance’s that in aggravated physical price drug identify appearance, the State the substance’s both Safety & controlled substance and the the substance. Tex.Health Code Ann. nature dilutant, § readily of the adulterant it is 482.003. and/or