Gabriel v. State

900 S.W.2d 721, 45 A.L.R. 5th 809, 1995 Tex. Crim. App. LEXIS 20, 1995 WL 92803

• Court: Court of Criminal Appeals of Texas
• Decided: March 8, 1995
• Docket: 088-93
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MeCORMICK, Presiding Judge.

Appellant was convicted of the unlawful possession with intent to deliver a controlled substance weighing 28 grams but less than 200 grams. V.T.C.A., Texas Health and Safety, Section 481.112(c). A jury assessed punishment at twenty-five years’ confinement. This conviction was affirmed by the Dallas Court of Appeals in a published opinion. Gabriel v. State, 842 S.W.2d 328 (Tex.App.—Dallas 1992). We granted discretionary review to determine whether the Court of Appeals erred in holding the evidence sufficient to show appellant possessed cocaine in an amount greater than 28 grams where only 2.237 grams in five of the fifty-four baggies containing the substance were scientifically tested. We shall affirm.

Appellant contends the evidence was insufficient to prove a quantity of cocaine in excess of 28 grams because the State was required to test enough substance to meet the alleged weight amount since the substances were packaged in different packages. Police officer Spencer testified appellant was arrested with the cocaine in a “trap house,” an apartment used exclusively for selling illegal narcotics. The State seized fifty-four baggies, each containing two or three individual “rocks,” from on top of a dresser. The chemist, Bunn, testified she tested five of the fifty-four baggies. She did a spot test, a gas chromatograph, and a mass spectrometry test on the contents of one baggie, did a spot test and a gas chromatograph on two baggies, and just a spot test on two more. She visually inspected the other baggies, finding them and their contents to be virtually identical to the ones she tested. The tested contents were all 99% cocaine, with a total weight of 2.237 grams. The total weight of the contents of all 54 baggies was 35.2 grams. Bunn concluded the contents of the untested baggies was all cocaine.

Viewing the evidence in the light most favorable to the verdict, we hold the State met its minimum burden of proof. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); see Turner v. State, 805 S.W.2d 423, 427 (Tex.Cr.App.1991), cert. denied, 502 U.S. 870, 112 S.Ct. 202,116 L.Ed.2d 162 (1991). The State showed the random samples were the alleged controlled substance, and the total weight of the substance seized was within the range of that alleged. It was rational for the factfin-der to conclude that identically packaged substances, which appear to be the same substance, are in fact the same substance. The manner of testing the substances by random sampling goes only to the weight the jury may give to the tested substances in determining the untested substance is the same as the tested substance. In addition, appellant could have conducted independent chemical tests on all fifty-four baggies to show they did not contain the same substance. Article 39.14, V.A.C.C.P.

The judgment of the Court of Appeals is affirmed.