Iriz Samantha Smith v. State

• Court: Court of Appeals of Texas
• Decided: January 11, 2001
• Docket: 03-99-00861-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

444444444444444 NO. 03-99-00861-CR 444444444444444

Iriz Samantha Smith, Appellant

v.

The State of Texas, Appellee

44444444444444444444444444444444444444444444444444444444444444444 FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT NO. 8791, HONORABLE FRANK J. MALONEY, JR., JUDGE PRESIDING 44444444444444444444444444444444444444444444444444444444444444444

Appellant Iriz Samantha Smith appeals from her conviction for possession of four

grams or more but less than 200 grams of cocaine. See Tex. Health & Safety Code Ann.

§§ 481.102(3)(D), .115(a), .115(d) (West Supp. 2001). The jury assessed appellant’s punishment

at imprisonment for three years. In her five points of error, all of which are briefed together,

appellant contends that the evidence is insufficient “to prove that the cocaine introduced into

evidence was ever found on or about the person of the appellant.” We affirm the judgment.

Sergeant Robert Lewis, a Narcotics Enforcement Team (NET) member, received

information from an informer that appellant was driving a maroon minivan toward Burnet and

that she had in her possession crack cocaine. Lewis contacted Mike Martin, a City of Burnet

police officer, and asked him to be on the lookout for appellant. When Martin saw appellant

driving the minivan, he noticed that she was not wearing a seatbelt and that one of the four

young children with her was standing unrestrained on the front seat. Martin stopped appellant for these traffic offenses. While Martin was issuing a ticket to appellant, Lewis arrived on the

scene. Soon Sergeant Robert Bylar, another NET member, came to the scene to assist in the

investigation. Appellant told Lewis she did not have any narcotics and gave her consent for a

search of the van. Appellant’s aunt came to take charge of appellant’s children. Appellant tried

to hand a diaper bag to her aunt. Lewis asked if he could search the bag and appellant

consented. Bylar searched the bag and found a brown prescription “pill” bottle that contained

what Bylar thought was crack cocaine. Bylar handed the bag and the pill bottle to Lewis. Lewis

testified: “I took care, custody, and control of the evidence [including the crack cocaine] where

I kept it in my possession until I turned it over to the NET evidence officer, where he in turn

locked it up in the file, until he carried it to DPS in Austin for analysis.”

Specifically, appellant complains that the crack cocaine admitted in evidence was

not shown to be the same substance taken from the diaper bag because none of the officers,

Lewis, Bylar, or Martin,identified State’s Exhibits 7 and 8. State’s Exhibit 7 was a package or

wrap holding State’s Exhibit 8. State’s Exhibit 8 was a plastic bag containing a pill bottle and

crack cocaine. In other words, appellant argues that the State failed to show an unbroken chain

of custody of the substance seized. Therefore, appellant urges the evidence is insufficient to

support appellant’s conviction.

Appellant argues that Jones v. State, 538 S.W.2d 113 (Tex. Crim. App. 1976), is

controlling and that it requires reversal of the judgment in this case. In Jones, a chemist

identified a balloon and testified that he analyzed its contents and found that it was heroin. That

balloon had been handed to the chemist by Officer Stringfellow. Stringfellow testified that he

had seen Jones throw a balloon from a car window. That balloon contained a powdered

2 substance Stringfellow believed was heroin. Stringfellow had handed that balloon to the

chemist for analysis of its contents. However,

State’s Exhibit No. 1 [the balloon containing contraband delivered to the chemist by Stringfellow] was never shown to or identified in any manner by Officer Stringfellow; the fact that the chemist identified the balloon as one delivered to him by the officer is not legally sufficient to show that the balloon was the one the officer seized after he saw appellant throw it from a car. In short, there was no showing that State’s Exhibit No. 1 was in any manner connected to the appellant, and therefore the proof is insufficient to show that appellant possessed heroin . . . .

....

there was no showing that the powder-filled balloon identified by the chemist was the same one Officer Stringfellow saw appellant throw from his car.

Id. at 114-15.

At trial, neither Lewis, Bylar, nor Martin were asked to identify State’s Exhibits

7 and 8. However, the record shows an unbroken chain of custody of the contraband from the

time it was seized until the time it was admitted into evidence. Sergeant Lloyd Morgan, an

evidence custodian for NET, identified State’s Exhibit 6 as “a submission form put on by the

officer, the case agent at the time” and testified that Lewis was “the case agent.” State’s Exhibit

6 is a Texas Department of Public Safety controlled substance submission form. Exhibit 6 bears

the following information: 1. The submitting agency is the “33rd Judicial District NET.” 2.

The submitting agency’s file number is “N99-0110.” 3. The submitting officer was “L. Bruce

Morgan.” 4. The suspect’s name was “Smith, Iriz Samantha.” 5. The County of the offense

was “Burnet.” 6. The evidence submitted was “White Rock in Pill Bottle.” 7. The case

number assigned by the DPS laboratory was “L271689.”

3 Morgan testified that Lewis handed him the pill bottle and crack cocaine in a

plastic bag that Lewis had heat sealed. (State’s Exhibit 8). Morgan took the submission form

in triplicate and the plastic bag containing the contraband to the Department of Public Safety

laboratory in Austin so the contraband could be analyzed. At the DPS laboratory, case number

L271689 was assigned and that number was placed on the submission form and on State’s

Exhibit 7 that contained Exhibit 8. Morgan retained one copy of the submission form. Later,

after the evidence had been analyzed, Morgan retrieved State’s Exhibits 7 and 8 from the

laboratory and they were “logged back in” and “locked back into the lockup.” Morgan, referring

to State’s Exhibit 7, testified, “This is the bag that I took to the lab with the evidence in it.”

Morgan testified that he knew State’s Exhibit 7 was the same bag because “[i]t’s signed by

Robert Lewis. It’s the same case number.”

Sergeant Jimmy Hopkins, the evidence custodian for NET at the time of trial,

brought State’s Exhibits 6, 7, and 8 to court on the day of trial. The exhibits were identified by

the DPS laboratory number L271689. On cross-examination by defense counsel, Hopkins was

asked whether he had ever seen State’s Exhibit 8 before the day of trial. He replied that he had

seen this evidence “the night that the traffic stop was made up here. I was with Sergeant Lewis.”

By careful reading of the record, we have ascertained that a complete chain of custody of the

contraband was established.

In other cases when the sufficiency of the evidence was challenged, less

compelling evidence to show a chain of custody has been held sufficient. Jones v. State, 617

S.W.2d 704, 705 (Tex. Crim. App. 1981); Simmons v. State, 944 S.W.2d 11, 12-13 (Tex.

App.—Tyler 1996, no pet.); Murray v. State, 864 S.W.2d 111, 116-17 (Tex. App.—Texarkana

4 1993, pet. ref’d); Madison v. State, 825 S.W.2d 202, 204-05 (Tex. App.—Houston [1st Dist.]

1992, no pet.); Dominguez v. State, 759 S.W.2d 185, 186-87 (Tex. App.—San Antonio 1988, pet.

ref’d) (distinguishing Jones, 538 S.W.2d 113).

The DPS chemist testified concerning the analysis, handling, and chain of custody

of the substance submitted for analysis while the substance was at the laboratory. In his analysis

the chemist found the substance analyzed was 8.5 grams of cocaine. The evidence is sufficient

to support appellant’s conviction. Appellant’s points of error are overruled. The judgment is

affirmed.

Carl E. F. Dally, Justice

Before Chief Justice Aboussie, Justices Kidd and Dally*

Affirmed

Filed: January 11, 2001

Do Not Publish * Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).