Avellaneda, Francisco Javier v. State

• Court: Court of Appeals of Texas
• Decided: July 17, 2003
• Docket: 01-02-00704-CR
• Status: Published

Opinion

Opinion issued July 17, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00704-CR

FRANCISO JAVIER AVELLANEDA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 851,346

MEMORANDUM OPINION

Appellant, Francisco Javier Avellaneda, was indicted for first degree delivery of a controlled substance, cocaine, in an amount weighing more than 400 grams. A jury found appellant guilty and the court assessed his punishment at 20 years' confinement. In one issue, appellant contends that the evidence is legally insufficient to establish his guilt because chain of custody for the cocaine was not established. We affirm.

Background

Gordon Forrester, an undercover narcotics officer for the Texas Department of Public Safety, received a phone call from Enrique Blasco. Blasco told Forrester that he knew some men in Houston who had several kilograms of cocaine for sale. Blasco called his source and arranged a meeting at a restaurant. At the restaurant, Blasco introduced Forrester to appellant and Jose Garcia and then left the table.

Appellant and Forrester agreed on a price for two kilos of cocaine at $19,000 each. After Forrester showed Garcia and appellant $38,000 in cash, appellant made a telephone call. Appellant then informed Forrester that the owner of the cocaine did not want to do business at the restaurant, but agreed to meet the men in a nearby K-Mart parking lot.

After the men drove to the K-Mart and waited some time, Garcia made a telephone call. Saying he had to leave to pick up the cocaine, Garcia left, while Forrester and appellant remained at the K-Mart and waited. After some additional time, Garcia returned to the K-Mart parking lot followed by two vehicles, a truck and a black Volkswagen. After speaking with the men who accompanied Garcia, appellant told Forrester that they wanted to do the drug transaction at a residence. Forrester refused because he feared for his safety. The men left the parking lot and returned a few minutes later. Appellant told Forrester that they could move to a nearby Burger King parking lot to complete the transaction, and everyone drove to that location.

At the Burger King parking lot, appellant led Forrester to one of the vehicles and Forrester inspected the cocaine. Forrester then told appellant that he would go and get the money. On the way back to his car, Forrester gave nearby officers a prearranged bust signal, and the four men were arrested.

Sufficiency of the Evidence

In his sole point of error, appellant argues that the evidence was legally insufficient to support his conviction for delivery of cocaine because there was insufficient proof of chain of custody for the narcotics. In evaluating the legal sufficiency of the evidence, we must "view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In the course of analyzing the evidence presented at trial, we may not re-weigh the evidence to substitute our judgment for that of the jury. Id. We will reverse a factfinder's determination only if a manifest injustice has occurred. Id. at 563. When evaluating the sufficiency of the evidence, we must look at all of the evidence, whether properly admitted or not. See Bobo v. State, 843 S.W.2d 572, 575-576 (Tex. Crim. App. 1992); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).

A person commits the offense of delivery of a controlled substance if he "delivers or possesses with intent to deliver" a controlled substance. Tex. Health & Safety Code Ann. § 481.112(A) (Vernon 2003). Delivery of a controlled substance may be accomplished by: (1) actual transfer, (2) constructive transfer, or (3) an offer to sell. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon 2003). When delivery is by offer to sell, no transfer need take place. Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim. App. 1986). The offense is complete when, by words or deed, a person "knowingly or intentionally offers to sell what he states is a controlled substance." Id.

To sustain a conviction for delivery of a controlled substance based on an offer to sell, proof of the offer must be corroborated by a person other than the offeree or by evidence other than a statement of the Offeree. Tex. Health & Safety Code Ann. §481.183(a) (Vernon 2003). This corroboration can be satisfied by evidence that the offeror had possession of or access to the controlled substance offered. Stewart, 718 S.W.2d at 288.

Appellant claims that the evidence only supports delivery by an offer to sell because the cocaine was never transferred to Forrester. Furthermore, appellant argues that the evidence was legally insufficient to support delivery based on an offer to sell because the State failed to properly establish chain of custody for the cocaine, which was the evidence necessary to corroborate the offeror's statement.

We conclude the evidence was legally sufficient for the jury to find the essential elements of the offense of delivery of a controlled substance. The evidence presented was sufficient for a rational trier of fact to conclude that appellant's conduct of offering Forrester a price of $19,000 per kilo constituted an offer to sell over 400 grams of cocaine. Additionally, the factfinder could have reasonably determined that appellant offered to sell a controlled substance because appellant (1) agreed on a sales price of $38,000 with Forrester, (2) observed the cash money in Forrester's vehicle, (3) accompanied Forrester to two locations for the transfer of narcotics to occur, and (4) showed Forrester the narcotics.

Furthermore, the evidence was sufficient for a rational trier of fact to conclude that the cocaine analyzed by the chemist who testified at trial was the same cocaine identified by Officer Forrester at the scene. Officer Forrester testified that he observed the two kilos of cocaine inside a box on the floorboard of the back seat of a white Ford truck, and observed Officer Rick Ashwood take possession of the items. The two kilos of cocaine were identified as State's Exhibits one and two, and the box was identified as State's Exhibit three. Officer Ashwood testified that State's Exhibit three had identifying marks on it in his handwriting. These included the name of one of the suspects arrested in this case, the case number, and the location of the arrest. Officer Ashwood did not put these identification markers on the two cocaine packages marked State's Exhibit one and two, but testified that they were inside the box marked as State's Exhibit three. He described the two cocaine packages as kilos wrapped in foil with black tape. He deposited the box marked as State's Exhibit three, containing State's Exhibits one and two inside, into the secure narcotics lockbox at the crime laboratory.

Avelina De Jesus, a chemist at the crime laboratory, testified that she took State's Exhibits one and two from the box marked State's Exhibit three. She described exhibits one and two as being wrapped in foil and said that she unwrapped the foil to expose the cocaine. Her chemical analysis revealed that the substance in State's exhibits one and two was 1.9 kilograms of cocaine. Although she did not personally obtain the items from the secure lockbox, she received the evidence from central evidence receiving.

Absent proof of altering or tampering with evidence, an objection that an improper chain of custody has been established goes to the weight of the evidence, not to its admissibility. Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985); see also Irvine v. State, 857 S.W.2d 920, 925 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) ("Whe[n] physical evidence is properly identified, care and custody issues go the weight to be given the evidence, not its admissibility."). In this case, the custody began when Officers Forrester and Ashwood recovered the cocaine at the scene. Custody continued through placing it the secure lockbox, and analysis by the chemist who was assigned to the case. Moreover, even if the two kilos of cocaine were improperly admitted, we would nonetheless consider that evidence in evaluating appellant's sufficiency challenge. See Bobo, 843 S.W.2d at 575-76.

After viewing the evidence in the light most favorable to the verdict and considering that appellant's arguments concerning the chain of custody are properly reserved for the weight of the evidence, for which we defer to the factfinder, we conclude that the evidence is legally sufficient to establish the offense of delivery of a controlled substance. We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

Do not publish. Tex. R. App. P. 47.4.