NUMBER 13-24-00080-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER JAMES HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Chief Justice Tijerina
Appellant Christopher James Hernandez was convicted of the third-degree felony
offense of possession of methamphetamine, a controlled substance in an amount of more
than one gram but less than four grams, and was sentenced to twenty-five years’ confinement. 1 See TEX. HEALTH & SAFETY CODE. ANN. § 481.115(c). By three issues,
appellant contends the evidence is insufficient to support his conviction, the trial court
improperly overruled his objection to the admission of evidence, and the trial court “erred
in allowing only one witness to testify regarding the forensic testing of the alleged
methamphetamine found near [a]ppellant when the evidence tended to show that more
than one ‘scientist’ worked on testing” the drug. We affirm.2
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support a
finding that he had control, management, or care over the methamphetamine and that he
knew that the substance was contraband.
A. Standard of Review and Applicable Law
In a sufficiency review, we consider all the evidence in the light most favorable to
the verdict and determine whether any rational fact finder could have found the essential
elements of the crime beyond a reasonable doubt based on the evidence and reasonable
inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).
Sufficient evidence exists if “the inferences necessary to establish guilt are reasonably
based upon the cumulative force of all the evidence when considered in the light most
favorable to the verdict.” Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The
1 Appellant’s sentence was enhanced pursuant to the habitual felony offender statute. See TEX.
PENAL CODE ANN. § 12.42. The record shows that the trial court sentenced appellant to twenty-five years’ confinement pursuant to a plea agreement and appellant’s pleas of “true” to two enhancement paragraphs. 2 This appeal was transferred to this Court from the Third Court of Appeals pursuant to a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight
to be given to their testimony. Brooks, 323 S.W.3d at 899.
We measure the sufficiency of the evidence in reference to the elements of the
offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). “Such a charge [is] one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d
at 240). The “law as authorized by the indictment” includes the statutory elements of the
offense “as modified by the indictment.” Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000).
Here, the State had to prove that appellant was in control of, had management of,
or care over the substance and knew that the substance he possessed was contraband.
See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If a defendant is
not in exclusive possession of the place where the contraband is found, the State must
show additional affirmative links connecting the defendant to the contraband. Olivarez v.
State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
B. Discussion
Appellant argues the evidence is insufficient to prove he had control of,
management of, or care over the methamphetamine because he did not exercise
exclusive control over the sidewalk where the methamphetamine was found. See id.
3 Kyle Sandford, a sergeant with the Georgetown Police Department, testified that,
while he was stuck in traffic, he observed appellant walking on the sidewalk and thought
that appellant threw something at his car. Sergeant Sandford confronted appellant who
admitted he was trying to get Sergeant Sandford’s attention. Sergeant Sandford stated
that as appellant walked toward his vehicle, he witnessed appellant “dropping things out”
of his pockets onto the ground. The trial court admitted a video showing appellant
removing items from his pockets and placing them on the ground. Sergeant Sandford
stated that another officer collected the items, which were two plastic bags, one
containing a white powdery residue later determined to contain 3.82 grams of
methamphetamine and another bag containing a digital scale and zip lock bags.
The evidence presented clearly shows that appellant had exclusive control,
management, and care over the methamphetamine because it was in his pocket, and he
threw it on the ground. See Poindexter, 153 S.W.3d at 405. Therefore, no further showing
of affirmative links was necessary. See id.; see also Evans v. State, 202 S.W.3d 158,
161–62 (Tex. Crim. App. 2006) (“However, presence or proximity, when combined with
other evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to
establish that element beyond a reasonable doubt.”).
Next, appellant argues that there is insufficient evidence to show that he knew that
the methamphetamine he possessed was contraband. The jury could have reasonably
inferred that appellant’s attempt to distance himself from the substance by taking it out of
his pocket and then throwing it on the ground showed a consciousness of guilt. See
Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898–99; see also Guevara v. State,
4 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (attempting to conceal incriminating evidence
shows a consciousness of guilt); Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d) (“A defendant’s conduct after the commission of a
crime which indicates a ‘consciousness of guilt’ is admissible to prove that he committed
the offense.”). Moreover, Sergeant Sandford testified that users of methamphetamine
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NUMBER 13-24-00080-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER JAMES HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Chief Justice Tijerina
Appellant Christopher James Hernandez was convicted of the third-degree felony
offense of possession of methamphetamine, a controlled substance in an amount of more
than one gram but less than four grams, and was sentenced to twenty-five years’ confinement. 1 See TEX. HEALTH & SAFETY CODE. ANN. § 481.115(c). By three issues,
appellant contends the evidence is insufficient to support his conviction, the trial court
improperly overruled his objection to the admission of evidence, and the trial court “erred
in allowing only one witness to testify regarding the forensic testing of the alleged
methamphetamine found near [a]ppellant when the evidence tended to show that more
than one ‘scientist’ worked on testing” the drug. We affirm.2
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support a
finding that he had control, management, or care over the methamphetamine and that he
knew that the substance was contraband.
A. Standard of Review and Applicable Law
In a sufficiency review, we consider all the evidence in the light most favorable to
the verdict and determine whether any rational fact finder could have found the essential
elements of the crime beyond a reasonable doubt based on the evidence and reasonable
inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).
Sufficient evidence exists if “the inferences necessary to establish guilt are reasonably
based upon the cumulative force of all the evidence when considered in the light most
favorable to the verdict.” Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The
1 Appellant’s sentence was enhanced pursuant to the habitual felony offender statute. See TEX.
PENAL CODE ANN. § 12.42. The record shows that the trial court sentenced appellant to twenty-five years’ confinement pursuant to a plea agreement and appellant’s pleas of “true” to two enhancement paragraphs. 2 This appeal was transferred to this Court from the Third Court of Appeals pursuant to a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight
to be given to their testimony. Brooks, 323 S.W.3d at 899.
We measure the sufficiency of the evidence in reference to the elements of the
offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). “Such a charge [is] one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d
at 240). The “law as authorized by the indictment” includes the statutory elements of the
offense “as modified by the indictment.” Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000).
Here, the State had to prove that appellant was in control of, had management of,
or care over the substance and knew that the substance he possessed was contraband.
See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If a defendant is
not in exclusive possession of the place where the contraband is found, the State must
show additional affirmative links connecting the defendant to the contraband. Olivarez v.
State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
B. Discussion
Appellant argues the evidence is insufficient to prove he had control of,
management of, or care over the methamphetamine because he did not exercise
exclusive control over the sidewalk where the methamphetamine was found. See id.
3 Kyle Sandford, a sergeant with the Georgetown Police Department, testified that,
while he was stuck in traffic, he observed appellant walking on the sidewalk and thought
that appellant threw something at his car. Sergeant Sandford confronted appellant who
admitted he was trying to get Sergeant Sandford’s attention. Sergeant Sandford stated
that as appellant walked toward his vehicle, he witnessed appellant “dropping things out”
of his pockets onto the ground. The trial court admitted a video showing appellant
removing items from his pockets and placing them on the ground. Sergeant Sandford
stated that another officer collected the items, which were two plastic bags, one
containing a white powdery residue later determined to contain 3.82 grams of
methamphetamine and another bag containing a digital scale and zip lock bags.
The evidence presented clearly shows that appellant had exclusive control,
management, and care over the methamphetamine because it was in his pocket, and he
threw it on the ground. See Poindexter, 153 S.W.3d at 405. Therefore, no further showing
of affirmative links was necessary. See id.; see also Evans v. State, 202 S.W.3d 158,
161–62 (Tex. Crim. App. 2006) (“However, presence or proximity, when combined with
other evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to
establish that element beyond a reasonable doubt.”).
Next, appellant argues that there is insufficient evidence to show that he knew that
the methamphetamine he possessed was contraband. The jury could have reasonably
inferred that appellant’s attempt to distance himself from the substance by taking it out of
his pocket and then throwing it on the ground showed a consciousness of guilt. See
Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898–99; see also Guevara v. State,
4 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (attempting to conceal incriminating evidence
shows a consciousness of guilt); Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d) (“A defendant’s conduct after the commission of a
crime which indicates a ‘consciousness of guilt’ is admissible to prove that he committed
the offense.”). Moreover, Sergeant Sandford testified that users of methamphetamine
utilize scales to ensure the correct amount of the substance has been purchased, from
which the jury could have inferred that appellant possessed the scale to weigh the
methamphetamine. See Evans, 202 S.W.3d at 162 n.12 (noting that possessing drug
paraphernalia links a person to the controlled substance). Finally, the jury could have
believed evidence that appellant appeared to be under the influence of methamphetamine
due to his rapid speech, mood swings, “excessive strength, not feel[ing] any pain,
excessive sweating,” and dilated pupils.3 Viewing the evidence in the light most favorable
to the jury’s verdict, we conclude a rational fact finder could have found from the evidence
and reasonable inferences therefrom that appellant knew that he possessed a controlled
substance beyond a reasonable doubt. Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d
at 898–99. We overrule appellant’s first issue.
II. RULE 403
By his second issue, appellant contends the trial court should have granted his
Rule 403 objection to the State’s witness who “made reference to the presumptive test
finding the alleged controlled substance to be methamphetamine.”
3 On cross-examination, Officer Ruben Bradley, who was involved in appellant’s apprehension and
arrest, testified that he “thought” appellant was under the influence because appellant “had a relatively high tolerance to pain” and was not “compliant with the pain compliances techniques” utilized by the officers.
5 A. Pertinent Facts
When the State published a video of Officer Bradley’s body camera, Officer
Bradley explained that the video showed that the officers had used a field test to
determine the contents of the bag. Officer Bradley explained the testing process, and he
testified, without objection, that the field test indicated that the substance appellant
possessed was presumptively positive for methamphetamine.
The State offered State’s Exhibit 10, which is a picture of Officer Bradley handing
the field test to another officer, State’s Exhibit 11, which “is a photograph of the
presumptively positive test that [another officer] is holding up”; and State’s Exhibit 12,
which is a picture “from [another officer’s] body camera showing that he’s holding the test
up to his body camera to show the positive results of the test.” Appellant objected to
“these presumptively positive tests” on the basis they were not relevant because “[o]nly
forensic tests are reliable and admissible.” The trial court asked, “So your argument is
they’re not relevant?” Appellant replied, “Yes, or lack of foundation as to the actual nature
of that substance without it being forensically tested.” The trial court overruled appellant’s
relevance and lack of foundation objections. Officer Bradley continued his testimony, and
again said, without objection, that State’s Exhibit 11 shows another officer “showing a
presumptively positive test for methamphetamine.”4
4 Richard Augustus Garcia, the forensic scientist that conducted forensic testing on the substance
appellant possessed, testified, without objection, that he had also conducted “a presumptive test” of the substance. Garcia stated that “the results of the color tests indicated that the sample could contain methamphetamine.”
6 B. Discussion
At trial, appellant only objected to the complained-of evidence because there was
a lack of foundation, and it was not relevant or reliable. Rule 403 states, “The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. Appellant
did not object to the evidence on the basis that it violated Rule 403. See Lopez v. State,
200 S.W.3d 246, 251 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“A rule 403
objection is not implicitly contained in relevancy or 404(b) objections; rather, a specific
rule 403 objection must be raised to preserve error.” (citing Montgomery v. State, 810
S.W.2d 372, 388 (Tex. Crim. App. 1990))). Therefore, this issue is not preserved. See
TEX. R. APP. P. 33.1. We overrule appellant’s second issue.
III. CONFRONTATION CLAUSE
By his third issue, appellant complains that the trial court violated the confrontation
clause and the Sixth Amendment by not requiring Daniel Hauser, a scientist who reviewed
the forensic scientist’s report, to testify.
A. Pertinent Facts
Richard Augustus Garcia, the forensic scientist with the Texas Department of
Public Safety Crime Lab in Garland, Texas who tested the substance, testified that after
he completed the testing on an instrument called a “gas chromatograph-mas
spectrometer,” he wrote a report, which Hauser then reviewed to ensure that he followed
the necessary and appropriate steps as per the department’s standard internal rules and
7 procedures. Garcia explained that after he writes a report, another analyst, Hauser in this
case, “look[s] at [his] report” to ensure that “the information on the submission form was
inputted into” the “management system information . . . correctly, that [his] worksheet
doesn’t have any typos, that the math [he] did to get the net weight was consistent,” and
that his data and conclusion is correct”
The State offered Garcia’s report, and appellant objected on the basis that “[a]
forensic analysis laboratory report prepared for use in a criminal prosecution is testimonial
evidence subject to the demands of the Sixth Amendment confrontation clause as set
forth in Crawford v. Washington.” 541 U.S. 36, 68–69 (2004). Appellant argued, “We’ve
already heard evidence from this witness that there’s been at least one other analyst
that’s involved in the review of this report. And so therefore, the defendant has the
opportunity and entitlement to cross-examine and confront that witness.” After taking
Garcia on voir dire, appellant reiterated his objection stating, “[T]here’s two analysts that
are involved in this case, to me, that’s exactly what [the case law] require[s that] . . . the
State to produce those witnesses.” The trial court overruled appellant’s objection.
In Crawford, the trial court admitted a witness’s “testimonial statement against
petitioner, despite the fact that he had no opportunity to cross-examine her.” Id. at 68.
Thus, the Crawford Court held “[t]hat alone is sufficient to make out a violation of the Sixth
Amendment” because “[w]here testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” Id. at 68–69. Here, appellant was allowed to cross-examine
8 and confront Garcia, the person who testified against him, performed the forensic testing,
and wrote the objected-to report. See id.
Appellant also cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009).
In that case, the trial court “admitted into evidence affidavits reporting the results of
forensic analysis which showed that material seized by the police and connected to the
defendant was cocaine.” Id. However, the authors of the reports did not testify. Id. The
Melendez-Diaz court stated that the person who wrote the report should have to testify
because the affidavits were testimonial. Id. at 310. Here, Garcia, the person who wrote
the report, testified, and his report was not admitted without his testimony. See id. Thus,
Melendez-Diaz does not support appellant’s argument. See id. Moreover, nothing in
either of these cases supports a conclusion that the trial court was required to make the
State call Hauser, who merely reviewed Garcia’s work, to testify. We overrule appellant’s
third issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 13th day of February, 2025.