Levi v. State

809 S.W.2d 668, 1991 Tex. App. LEXIS 1538, 1991 WL 104333
CourtCourt of Appeals of Texas
DecidedMay 15, 1991
DocketNo. 09-90-178 CR
StatusPublished
Cited by7 cases

This text of 809 S.W.2d 668 (Levi v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levi v. State, 809 S.W.2d 668, 1991 Tex. App. LEXIS 1538, 1991 WL 104333 (Tex. Ct. App. 1991).

Opinion

OPINION

WALKER, Chief Justice.

This is an appeal from a jury conviction for the first degree felony offense of Delivery of a Controlled Substance, namely cocaine. The indictment charging appellant with the offense included one enhancement paragraph. Appellant pleaded true to the enhancement allegation and was sentenced by the jury to thirty-seven (37) years confinement in the Institutional Division of the Texas Department of Criminal Justice, and fined $3,000.00. Appellant raises two points on appeal, to-wit:

Point of Error Number One
The trial court erred by admitting into evidence the State’s exhibits numbered 1, 2, 3, and 4 over the objection that there was no proper showing of chain of custody.
Point of Error Number Two
Because State’s exhibits 1, 2, 3, and 4 are inadmissible there is insufficient evidence on which to support a conviction.

In the interest of clarity, State’s exhibit 1 was identified as a plastic bag which was submitted to the Jefferson County Crime Lab. State’s exhibit 1 contained State’s exhibits 2 and 3. State’s exhibit 2 was identified as an evidence tag with “Case No. 89-12915” printed on it and stamped “No. 19347”. Our reference to stamp No. 19347 will become significant later in the opinion. State’s exhibit 3 was identified as a small brown envelope which contained the one “off white, rock like substance” that was later identified as cocaine. State’s exhibit 4 was identified as a copy of the original laboratory submission form which was attached to State’s exhibits 1, 2, and 3. We note from the testimony of the chemist, Lori Bates, that State’s exhibit 3 contained the cocaine rock, that the evidence tag stamped No. 19347 was attached to State’s exhibit 3, that State’s exhibit 3 (the small brown envelope containing cocaine rock) and State’s exhibit 2 (evidence tag stamped No. 19347) were placed inside State’s exhibit 1 (the plastic bag) and that State’s exhibit 4 (the laboratory submittal form) was physically attached to State’s exhibit 1 but referenced the contents of State’s exhibits 1 and 3.

The record further reflects that at some point during the trial the State attempted to introduce into evidence State’s exhibits 1, 2, 3, and 4. Appellant’s trial counsel responded as follows:

MR. LEBLANC [for appellant]: Your Honor, I’ve looked at those exhibits. I don’t believe the State has proven a correct chain, so I’m going to object to the admission of those.
THE COURT: Objection is overruled. Exhibits 1, 2, 3, 4, 5, 7, and 8 are admitted.
MR. LEBLANC: Note our exception, your Honor.

Appellant cites to Edlund v. State, 677 S.W.2d 204, 210 (Tex.App. — Houston [1st Dist.] 1984, no pet.) for a rule that, “[A] showing of chain of custody is required where there are routine or generally unidentifiable or undistinguishable scientific tests or analysis”. We make no comment as to the precedential value of this statement. We do note that appellant elaborates on his points of error by arguing inadmissibility because of two breaks in the chain of custody. Appellant’s brief states:

The first break is between the arresting officer Deputy Kirkpatrick and Lynn Ar-ceneaux, the agent who delivered the sample to the testing laboratory. The second break occurs when Mr. Arcen-eaux can not positively say what he did [670]*670with the sample after he got it from the arresting officer.

At this point, a rendition of the testimony pertinent to this appeal is in order. Deputy Mike Kirkpatrick of the Jefferson County Sheriffs Office was working undercover with the Orange Police Department’s Drug Task Force Unit. Deputy Kirkpatrick testified that he purchased a “rocklike” object from a man later identified as appellant. Deputy Kirkpatrick testified that due to his experience, he believed the rocklike substance to be cocaine. The entire transaction was recorded by a microcassette recorder that Deputy Kirkpatrick had concealed inside the vehicle the Deputy was operating. Deputy Kirkpatrick then left the area in his vehicle and met up with Lynn Arceneaux, the supervisor for the Orange Drug Task Force Unit. Kirkpatrick and Arceneaux then went to the Orange Police Department at which time Kirkpatrick turned over to Arceneaux both the rock purchased from appellant and the microcassette of the transaction. Kirkpatrick testified that he personally observed Arceneaux place the cocaine rock inside State’s exhibit 3 (the small brown envelope), place his own signature on State’s exhibit 2 (the evidence tag stamped No. 19347), and witnessed Arceneaux also sign State’s exhibit 2. Kirkpatrick then personally witnessed Arceneaux place State’s exhibits 2 and 3 inside State’s exhibit 1 (the plastic bag). Detective Arceneaux testified to the same procedure used to secure the rock purchased from appellant for submit-tal to the Crime Lab. Arceneaux additionally testified that he personally filled out the information on State’s exhibit 4 (the laboratory submittal form). Arceneaux further testified that he personally recognized State’s exhibits 2 and 3, and he personally submitted State’s exhibits 1, 2, 3, and 4 to the Jefferson County Crime Lab. Lori Bates, the chemist with the Jefferson County Crime Lab testified that State’s exhibit 1 was sealed when she received it and that she cut it open; that State’s exhibits 1, 2, and 3 were submitted by Detective Arceneaux, as she personally accepted the exhibits from him, and she personally recorded on State’s exhibit 4 (the laboratory submission form) how the exhibits were received and the date she received the exhibits. Ms. Bates further testified that she conducted tests on the substance contained inside State’s exhibit 3 and that the substance was determined to be cocaine. Appellant points out in his brief that there appears to be a discrepancy in Detective Arceneaux’s identification testimony with regard to the Orange Police Department case numbers written upon State’s exhibit 2 (the evidence tag) and State’s-exhibit 4 (the laboratory submittal form). In examining those two pieces of evidence reproduced for us in the statement of facts, we note that the evidence tag bears the case number “89-12915,” and the laboratory submittal form appears to bear the case number “89-1291# We do note, however, that both case numbers appear to be handwritten, and that the final digit “8” on the laboratory submittal form could be an error as it appears that someone went over the digit with a pen attempting to darken it into the number “5”. We see this as of no consequence as the evidence tag is also stamped by what appears to be a mechanical device with the number “19347,” and handwritten on the description line of the laboratory submittal form are the words, “off white rock like substance (tag #19347)”. This, along with the testimony of Deputy Kirkpatrick, Detective Ar-ceneaux, and Ms. Bates is more than sufficient to overcome the apparent discrepancy in case numbers.

Appellant’s complaint, evidence lacking a proper chain of custody, is further grounded on the argument that because Deputy Kirkpatrick testified that he made another purchase of cocaine on the same day that he made the purchase from appellant, proof that the two items purchased were kept separate and distinct was lacking and therefore made the rock contained in State’s exhibit 3 inadmissible. This, and other such “chain of custody” complaints are ones upon which we are asked to rule fairly regularly.

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Bluebook (online)
809 S.W.2d 668, 1991 Tex. App. LEXIS 1538, 1991 WL 104333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levi-v-state-texapp-1991.