TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00487-CR
Damon Henry Goforth, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. A-00-0768-S, HONORABLE BEN WOODWARD, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Damon Henry Goforth appeals his conviction for possession of a controlled
substance, to wit: methamphetamine, in an amount of one gram or more but less than four grams.
See Tex. Health & Safety Code Ann. §§ 481.102(b), .115(c) (West 2003). The jury found appellant
guilty. The trial court, finding that the allegation in the indictment charging a prior conviction for
possession of marihuana was true, assessed punishment at eleven years' imprisonment.
Points of Error
Appellant advances six points of error. In his first two points, appellant challenges
the legal and factual sufficiency of the evidence, contending that proof of the weight of the
methamphetamine alleged in the indictment was insufficient to support the jury's verdict. In the
third point of error, appellant complains that the trial court's comment during jury argument was on
the weight of the evidence and harmful to him. In points of error four, five, and six, appellant asserts
that the trial court erred in admitting into evidence, over objection, appellant's statement to Officer
Howard Miller that he (appellant) had just gotten off parole for marihuana. Appellant contends that
the trial court's rulings on appellant's statement were in violation of Rules 401, 403, and 404(b) of
the Texas Rules of Evidence and because the evidence "was general character evidence to which the
defense had not raised an issue." We will affirm the judgment of conviction.
Facts
On June 5, 2000, San Angelo Police Officer Howard Miller stopped to talk to a man
he observed walking on the wrong side of the road (1) in the "unit block" of South Jackson Street.
Miller identified the man as appellant and informed him of the violation. Miller observed that
appellant was pacing back and forth, was sweating, "hyper," nervous, and "jaw biting." The twenty-one-year veteran police officer was of the opinion that appellant was under the influence of a
stimulant. At the officer's request, appellant produced his identification. Miller conducted an
outstanding warrant check by radio and found that there were none. In response to Miller's question
as to whether appellant had been "in trouble," appellant stated that he had just gotten off parole for
possession of marihuana. Miller inquired if appellant had any narcotics on his person and appellant
answered "no." Appellant reached into his right front pants pocket and removed his hand quickly.
He then reached into his left front pocket and began selectively removing items. Miller asked if
appellant could turn his pocket inside out. At this point, appellant hung his head and told Miller that
he had "dope." When Miller asked what kind, appellant said "speed," which Miller testified was a
common street term for methamphetamine or amphetamine. Miller handcuffed appellant and, with
appellant's consent, retrieved from appellant's left front pocket a matchbox. Inside this single
receptacle were two plastic baggies containing a tan hard rock-looking substance.
In response to Miller's call, narcotic officers John McGuire and Mickey Jones arrived
on the scene and talked to appellant. Both officers testified that in their opinion appellant was under
the influence of methamphetamine, describing the actions of people who have taken that particular
stimulant or controlled substance.
The record shows that a chemical field test was performed on the substance taken
from appellant. The substance was then submitted to the Texas Department of Public Safety at
Abilene. The chain of custody was established. Criminalist William Todsen with the Texas
Department of Public Safety crime laboratory testified that three tests had been performed on the
substance submitted and that these lab reports showed that the substance was methamphetamine
weighing 1.12 grams including any adulterants and diluants. The thirty-four-year-old appellant
testified that he was a schizophrenic and had had mental health problems since he overdosed on
methamphetamine and L.S.D. when he was twenty years old. He added that he took prolixin as a
medication to keep from being "hyper"; that on June 5, 2000, he had not taken his medication for
two months; and that when he is not taking his medication he sometimes becomes "spacey,"
hyperactive and "his jaw grows crooked." Appellant stated that he thought he had "dope"--"speed"
in his pocket on June 5, 2000. "They" (2) told him it was methamphetamine. When shown the
matchbox, the two plastic baggies and the substance which had been introduced into evidence and
identified as methamphetamine, appellant stated: "It looks like the stuff I had in my pocket," and
"That's what I had in my pocket." Dr. Charles Bray, a psychiatrist, and appellant's father testified
as to appellant's mental health problems.
Legal Sufficiency
In his first point of error, appellant challenges the legal sufficiency of the evidence
to support his conviction. Appellant claims that the proof is insufficient to sustain the allegation in
the indictment that the weight of the methamphetamine was more than one gram but less than four
grams. Appellant hinges his argument on the fact that the contents of both plastic baggies were
combined or mixed together before the weight of the methamphetamine, including adulterants and
dilutants, was determined.
In analyzing whether the evidence is legally sufficient to support the judgment, we
view the evidence in the light most favorable to the judgment, asking whether any rational trier of
fact could have found beyond a reasonable doubt all the essential elements of the offense charged.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim.
App. 1996).
The evidence, viewed in this light, and all reasonable inferences drawn therefrom, are
evaluated in this review. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). A
reviewing court must consider all the evidence, rightly or wrongly admitted, which the trier of fact
was permitted to consider. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson
v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The standard of review is the same for both
direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).
The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and
the weight to be given the testimony; and may accept or reject all or any witness's testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Williams v. State, 692 S.W.2d 671,
676 (Tex. Crim. App. 1984). Reconciliation of evidentiary conflict is solely the function of the trier
of fact. Miranda v. State, 813 S.W.2d 724, 733-34 (Tex. App.--San Antonio 1991, pet. ref'd).
Moreover, the evidence is not rendered insufficient merely because the defendant presented a
different version of the events. Turro v. State, 867 S.W.2d 43, 47-48 (Tex. Crim. App. 1993).
In the instant case, it is undisputed that the substance in question was found in
appellant's possession. Appellant stated it was "speed" (methamphetamine). There was evidence
that appellant was under the influence of methamphetamine at the time. The substance was in two
plastic baggies found in a single receptacle--a matchbox. The substance in both baggies was a tan
colored rock-like substance, apparently homogeneous in nature. Following a chemical field test, the
substance was submitted to the laboratory at the Texas Department of Public Safety. The two
presumptive tests, the Marquis and S.N.P. analysis, showed that the substance in each baggie was
methamphetamine. The substance in each baggie was combined and the gas chromatography-mass
spectrometry test, a confirmatory analysis, was performed. The test showed that mixture was
methamphetamine and weighed 1.12 grams.
Appellant contends that the evidence is insufficient because the substance in each
baggie was not separately weighed and individually tested prior to the gas chromatography-mass
spectrometry analysis. Appellant argues that "the only professionally supportable conclusion is that
there was some methamphetamine of unknown weight." Appellant contends that "without the
necessary evidence of weight," he was proven guilty only of a lesser included offense of possession
of a controlled substance less than one gram. Without the submission of a lesser included offense
to the jury, appellant urges that he is entitled to an acquittal.
The purity of the methamphetamine in the substance was not established. Neither
was the amount of adulterants and dilutants determined. The criminalist testified 1.12 grams weight
included any adulterants and dilutants "that might have been present."
An adulterant or dilutant is defined as any material that increases the bulk or quantity
of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.
Tex. Health & Safety Code Ann. § 481.002(49) (West Supp. 2003). The State must prove that a
controlled substance plus adulterants and dilutants weigh at least as much as the minimum weight
alleged in the indictment. Reeves v. Sate, 806 S.W.2d 540, 542 (Tex. Crim. App. 1990). The State
is no longer required to prove that the added adulterants and dilutants did not affect the chemical
activity of a controlled substance. Hines v. State, 976 S.W.2d 912, 913 (Tex. App.--Beaumont
1998, no pet.); Warren v. State, 971 S.W.2d 656, 660 (Tex. App.--Dallas 1998, no pet.); Williams
v. State, 936 S.W.2d 399, 405-06 (Tex. App.--Fort Worth 1996, pet. ref'd). "Because the Health
and Safety Code now defines adulterants and dilutants as substances that increase the bulk or
quantity of a controlled substance, testimony that the substances are adulterants and dilutants
constitute proof that they were added to increase bulk and quantity of the [controlled substance]."
Collins v. State, 969 S.W.2d 114, 117 (Tex. App.--Texarkana 1998, pet. ref'd).
The direct and circumstantial evidence, when viewed in the light most favorable to
the jury's verdict, is sufficient for us to conclude that a rational trier of fact could have found beyond
a reasonable doubt all of the essential elements of the offense charged, including the elements that
appellant possessed methamphetamine in an amount of more than one gram but less that four grams.
See Hines, 976 S.W.2d at 913. The first point of error is overruled. (3)
Factual Sufficiency
In point of error two, appellant challenges the factual sufficiency of the evidence. A
review of the factual sufficiency of the evidence begins with the presumption that the evidence
supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App.
1996). In such a review, we consider the evidence without employing the prism of "in the light most
favorable to the verdict" as required in cases of complaints of legal insufficiency. Id. at 129. A
reviewing court must consider all the evidence impartially, comparing evidence that tends to prove
the existence of a disputed fact or facts with evidence that tends to disprove that fact or those facts.
Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The verdict or the judgment is to
be set aside only when the factual finding is against the great weight and preponderance of the
evidence so as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129.
In a clarification of the standard of review involved, the Court of Criminal Appeals
made clear that the Clewis criminal factual sufficiency review encompasses both formulations
utilized in civil jurisprudence. Thus, in conducting a Clewis sufficiency review of the elements of
a criminal conviction, an appellate court must ask whether a neutral review of all the evidence, both
for or against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
the confidence in the jury's determination, or the proof of guilt, although sufficient taken alone, is
greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
It must be remembered, however, that the trier of fact is the sole judge of the weight and credibility
of the testimony. Santellan, 939 S.W.2d at 164. One principle of the factual sufficiency analysis
is deference to the findings of the jury or other fact finder. Cain v. State, 958 S.W.2d 404, 407 (Tex.
Crim. App. 1997).
In advancing his factual sufficiency argument, appellant points out again that two
baggies with similar appearing substances found in a matchbox were mixed together before being
subjected to the conclusive gas chromatography-mass spectrometry test. "Hence, it is unknowable
whether the methamphetamine found by the conclusive gas chromatography-mas spectrometry test
came from one or both of the two seized packs. And, since there is no evidence whatsoever in the
record as to the weight of each pack separately, it is impossible to say whether, if methamphetamine
was in fact present only in one pack, what the weight of the proven controlled substance would then
be."
The foregoing is the major thrust of appellant's argument. A neutral review of all the
evidence does not show that proof of guilt of the elements of the criminal conviction is so obviously
weak as to undermine the confidence in the jury's verdict. The verdict is not so contrary to the over-whelming weight of the evidence to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135. The
second point of error is overruled.
Comment on the Weight of the Evidence
In his third point of error, appellant claims that the "trial judge made an improper
comment on the weight of the evidence during defense counsel's final argument at the guilt-innocence phase of the trial, which error was harmful."
Article 38.05 provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment
upon the weight of the same or its bearing in the case, but shall simply decide
whether or not it is admissible; nor shall he, at any stage of the proceeding previous
to the return of the verdict, make any remark calculated to convey to the jury his
opinion of the case.
Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979).
The trial court must maintain an attitude of impartiality throughout the trial. The
language and the conduct of the trial court have a special and peculiar weight with the jury. See
Clark v. State, 878 S.W.2d 224, 226 (Tex. App.--Dallas 1994, no pet.). A trial court's comment
constitutes reversible error if such comment is either reasonably calculated to benefit the State or to
prejudice a defendant's right to a fair and impartial trial. Becknell v. State, 720 S.W.2d 526, 531
(Tex. Crim. App. 1986); Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983); Gonzales
v. State, 2 S.W.3d 600, 607 (Tex. App.--Texarkana 1999, pet. ref'd).
In support of his contention, appellant calls our attention to the following portion of
the record reflecting his counsel's jury argument:
The person who needs to be asked a question here today is Detective McGuire. How
do you expect us, when you can't follow a rule as simple as that, to think that your
memory 18 months later of something you didn't put down in your offense report
because you --
MS. WILLIAMS: Objection. That's not --
MR. JONES: -- because you did not --
MS. WILLIAMS: Objection.
THE COURT: Okay, Mr. Jones. Your objection?
MS. WILLIAMS: That is not in evidence before this Jury. Mr. Jones is attempting
to testify to matters not in evidence before this Jury.
THE COURT: Stick within the evidence that has been presented, during your
argument, please, sir.
MR. JONES: Your Honor, respectfully, I'm going to object that that was a
comment on the weight of the evidence.
THE COURT: Objection noted and denied. It was not a comment on the
evidence. I'm just instructing you to argue the evidence.
MR. JONES: Your Honor, I'm -- respectfully, I must have a ruling on my
objection.
THE COURT: Overruled.
MR. JONES: Thank you, Your Honor.
We heard testimony from that witness stand. I asked Detective McGuire a specific
question: "Did you write a report of this incident?" And he said, "No, I didn't."
And for that reason we know, as I said a moment ago, he didn't put it in his offense
report because he doesn't have an offense report. He expects you to rely on an 18-month-old memory when he would not comply with the law regarding how he should
take that statement. Now, I may come back to that in a moment, but let's change
topics for a moment.
It is obvious from the excerpt above that appellant got before the jury, without
objection, what apparently the complained-of ruling may have prevented temporarily. It is unclear
from the excerpt alone or even counsel's earlier argument just what portion of McGuire's testimony
was involved. Apparently, appellant's counsel was attacking McGuire's rebuttal testimony
impeaching appellant's testimony denying that he made a statement to Officers McGuire and Jones
about what had transpired between Officer Miller and himself at the time of the stop. On cross-examination, after McGuire's rebuttal testimony reciting appellant's statement, counsel received
negative answers when he asked McGuire if McGuire had recorded the oral statement, preserved it
by "in-car video," reduced it to writing, or made an offense report.
Appellant does not show that the trial court's remarks or rulings were a comment on
the weight of the evidence or were calculated to convey its opinion of the case. In a multifarious
manner, appellant describes three other trial court rulings in an attempt to show the trial court's
favoritism to the prosecution. The State, in its brief, offers to match the list with adverse rulings
against the State.
Counsel may in jury argument properly summarize the evidence and draw reasonable
deductions therefrom, Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980), but normally
must confine their argument to the evidence introduced during the trial and cannot argue outside of
the record. See 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure § 37.21 (West 2001). Trial courts are frequently called upon to respond to objections
during jury argument that opposing counsel's argument is beyond the pale--outside the record. That
is what occurred in the instant case. We conclude that the trial court's remarks were not a comment
on the weight of the evidence, nor did they result in a benefit to the State or prejudice or harm
appellant's right to a fair and impartial trial. The third point of error is overruled.
The Parole Statement
In points of error four, five and six, appellant contends that the trial court erred in
admitting appellant's oral statement to Officer Miller that appellant had just gotten off parole for
possession of marihuana. Appellant urges that the admission of the evidence was in violation of
Rules 401, 403, and 404(b) of the Texas Rules of Evidence and "inadmissible because it was general
character evidence as to which the defense had not raised on issue."
The complained-of testimony was elicited during the direct examination of Officer
Miller who had stopped appellant as earlier described. Appellant appeared to Miller to be under the
influence of a stimulant, was sweating, was nervous, and pacing back and forth. Miller had obtained
identification and checked on outstanding warrants. It was at this time that appellant told Miller that
he had just gotten off parol for possession of marihuana.
Despite any objections, such evidence appears admissible as same transaction
contextual evidence. See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); Mayes v.
State, 876 S.W.2d 79, 86-87 (Tex. Crim. App. 1991); see also Camacho v. State, 864 S.W.2d 524,
532 (Tex. Crim. App. 1993). Evidence of acts, words, and conduct of a defendant at the time of his
arrest and the time of the commission of the offense is same transaction contextual evidence.
Rogers, 853 S.W.2d at 33 & n.6; see Duncantell v. State, 563 S.W.2d 252, 254 (Tex. Crim. App.
1978) (events do not occur in a vacuum). We need not decide these points on this basis.
On cross-examination of Miller, appellant's counsel elicited the same parole
statement. Further, appellant in his testimony, both on direct and cross-examination, related the
parole statement without objection. Moreover, appellant independently testified that he had been
convicted for possession of marihuana, detailed how much time he served in county jail and in
prison, and that he had completed his parole prior to the instant offense.
Our rule, therefore, is that overruling an objection to evidence will not result in
reversal when other such evidence was received without objection, either before or
after the complained-of ruling. This rule applies whether the other evidence was
introduced by the defendant or the State. See, e.g., Rogers v. State, 853 S.W.2d 29,
35 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App.
1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). This
rule has never been otherwise as far as we know.
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
If there was error, appellant has waived it. There is no need for a harm analysis.
Points of error four, five, and six are overruled.
The judgment is affirmed.
__________________________________________
John F. Onion, Jr., Justice
Before Justices Kidd, Patterson and Onion*
Affirmed
Filed: June 12, 2003
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. See Tex. Transp. Code Ann. § 552.006 (West 1999).
2. "They" apparently referred to the individuals from whom appellant had obtained the
substance.
3. Appellant relies upon Melton v. State, 85 S.W.3d 442 (Tex. App.--Austin 2001, pet.
granted), a random sampling case which is distinguishable from the facts in the instant case. In
Melton, the defendant was charged with possession of four or more but less than two hundred grams
of cocaine. A plastic baggie found on the defendant's person contained thirty-five to forty rocks of
what appeared to be crack cocaine. A field test revealed the presence of cocaine. The Texas
Department of Public Safety chemist testified that the evidence in the baggie was crack cocaine and
weighed 5.77 grams, but admitted that he did not test every rock in the baggie, only an unspecified
number. The Melton court wrote:
The legislature has established an increasing penalty scale based solely on the
amount of controlled substance possessed by an accused. We do not believe it
is unreasonable for the State, if it desires a penalty greater than the minimum, to
test and prove the substance possessed is a controlled substance in an amount
within the range of punishment the State is seeking to have imposed . . . . Some
of the thirty-five to forty items in the bags may not have contained any cocaine;
if a rock is composed entirely of noncocaine, then the noncocaine substances are
not adulterating or diluting cocaine, and their weight cannot be added to the
aggregate weight of cocaine.
Id. at 444-45.
The Melton court took note of the plurality opinion in Gabriel v. State, 900 S.W.2d 721,
722 (Tex. Crim. App. 1995), that the manner of testing a substance by the thoroughness of the
random sampling testing goes to the weight of the evidence regarding the amount of the substance,
but declined to follow the plurality opinion as it is not binding authority. See State v. Hardy, 963
S.W.2d 516, 519 (Tex. Crim. App. 1997).
The Melton opinion also took note that three judges concurred in Gabriel, concluding under
the facts of that case that circumstantial, not necessarily scientific, evidence could allow the jury to
"'infer' that all similarly situated baggies contained the same substance, and the substance was
cocaine." Before and after Melton, other courts of appeals have followed Gabriel. See, e.g., Zane
v. State, 84 S.W.3d 733, 741 (Tex. App.--Houston [1st Dist.] 2002, pet. granted); Henson v. State,
915 S.W.2d 186, 192 (Tex. App.--Corpus Christi 1996, no pet.) (manner of testing a substance by
random sampling goes only to weight of evidence jury may give to tested substances in determining
that untested substance is the same as tested substance). Under any circumstances, these random
sampling decisions are not controlling in the instant case where there was no random sampling.
Appellant's reliance on Melton is misplaced.