### TEXA S COU RT O F AP PEAL S, THIR D DISTRIC T, AT AU STIN

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Ir iz Sam antha Smith, Appellant

v. The State of Texas , Appellee

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4444444444 FROM THE DISTRICT CO URT OF BURNET COUNTY, 33RD JUDICI AL DISTRICT NO. 8791, HO NORABLE FRANK J. MALONE Y, JR., JUDGE PRESIDING

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4444444444 Appellant Iriz Samantha Smith appeals from her conviction for poss ession of f

our gramsor more but less than 200 gra ms of co caine
. SeeTex. Health & Safety Code A nn. §§ 481 .1 02( 3) (D) , .1 15(a), . 115(d) (West Supp. 2001) . The jury asse ssed appellant’spunishment at imprisonment for three year s. In her five points of er

ror, all of which are briefed toget her, appellantcontends that the evidence is insufficient “to prove that the c ocaine introduc ed into evidenc e was eve r fou

nd on or about thepers on of theappella nt.” We af

firm the j udgment. Sergeant Rob ert Lew is, a Narcotics Enforcement Team (NET) mem ber, re ceived information from an informer that appellant was driving a maroon minivan tow ard Burnet and that she ha d in her

posse ssion crack c ocaine. Lewis conta cted M ike M artin, a City of Burnet police of fi ce r, an d a sk ed

him t o beon t

he loo kou

t f or ap pe lla nt. Whe n Mar

tin sa w a ppellant driving the miniv an, he noticed that she was not wearing a seatbelt and that one of the four young childrenwith her was standing unrestrained on the front sea t. Martin stopped appellant2

for t hese tr aff ic offense s. While Martin was issuing a ticket to appellant, Lewis arrived on the
scene. Soon Sergeant Robe rt B ylar, a nother NET m ember, came to the scene to assis t in the investigation. Appellant told Lewis she did not have any narcotics and gaveher consent for a search of the v an. 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 se ar ch the bag and appellant consented. Bylar searched thebag and found a brown pres cription“pill” bottle that contained what Bylar thought was crack coc aine. Byla r hand ed the bag and the p ill bottle to Lewis. Lewis testified: “I took care, cust ody, an d cont rol of th e evid ence [in cludi ng th e crack co caine] w here I kept i t in m y possessi on unt il I tu rned it over t o th e NE T evi dence o fficer, w here he i n turn locke d it u p in t he file , unti l he carri ed it t o DP S in A ustin for analy sis.”

Specifically, appellant complains that the crack cocaine admitted in evidence was not shown to be the same substance taken f rom the d iaper bag because non e of the officers, Lewi s, Bylar, or Martin,identified Stat e’s Exh ibit s 7 and 8 . Stat e’s Exhibit 7 was a package or wrap holding State’s Exhibit 8. State’s Exhibit 8 was a plastic bagcontaining a pillbottle and crack cocaine. In other

words, appellant

argues that the State f

ailed to s how an unbroken chain of custody of the subs tance seized. Theref ore, appella

nt urge s the ev idence i s insuf ficie nt to support appellant’sconviction.

Appellant argues that Jones v. State , 538 S.W.2d 113 (Tex. Crim. App. 1976), is
c ontrolling and that it requires r eversal of

the judgment in this case. In Jones , a c hemis t identifieda balloon and testified that heanaly zed it s conte nts and found t hat it was h eroin. That balloon had beenhanded tothe chemist by Officer Stringfe llow. Stringfellow testified that he hadseenJo ne s t hr ow a balloon from a car window. That balloon contained a powdered3

substance Strin gfe ll ow believed was heroin. Stringfellow had handed that balloon to the chem ist for an alysis of its co ntent s. How ever, Stat e’s ExhibitNo. 1 [the balloon containin g contraband del ivered to the ch emist by Stringfellow] was never shown to or identif ied in any manner by Officer Stringfellow; the fact that the chemist identified the balloon a s one de livere d to him by the officer is not legally suf ficient to show that the balloon was the one the offi cer seized after he saw appel lant t hrow it from a car. In short, t here was no showing that State’s Exhibit No. 1 was in any manner connected to the appella nt, and therefore the proof is insufficient to s how that appellant possessed heroin
. . . .

. . . . there was no showing that the powder-filled b alloon identified b y the chem ist was t he sam e one O fficer Stri ngfell ow sa w ap pella nt th row from his car.
Id. at 114-15. At trial, neither Lewis, Bylar , nor

Martin were a sked to i dentif y State’ s Exhibits 7 and 8. However, the record shows an unbr oken chain of custody of the contraband fr

om the ti me it was seized until the time it was adm itted into evidence. Sergea ntLl oy d Mo rgan, an evidence custodian for

NET, identified State’s Exhibit 6 as “a submission f orm put on by the officer, the case agent

at the time” a

nd testi fied th at Lewis was “the c ase ag ent.” S tate’ s Exhibit 6 is a Texas Dep artm ent of P ubli c Safety contro lled su bstanc e subm ission form. E xhib it 6 b ears the following information: 1. The submitting agency is the “33rd Judicial District NET.” 2. The subm itti ng age ncy’s fil e num ber is “N 99-011 0.” 3. The submitting officer was “L. Bruce Morgan.” 4. The suspect’ s name was “Smith, Iriz Samantha.” 5. The County of the offense
wa s “Burnet.” 6. Th e evidence subm itted w as “White R ock in Pil l Bott le.” 7. The case
num ber assig ned by the D PS la borato ry was “L27 1689.”4 Morgan testified that Lewi s h ande d him the pill bottle and crack cocaine in a plasticbag that Lew is had h eat seal ed. (Sta te’s Exhi bit 8 ). Mo rgan to ok th e subm ission form in triplicate and the plastic bag containing the contr aband to t

he Depar tment of Publi c Safe ty laborat ory in Austin so the contraband could be analyzed. At the DPS laboratory, case number L271 689 was ass ig ned an d that num ber wa s placed on th e subm ission form a nd on S tate’s Exhibit7 that containedExhi bit 8 . Mo rgan reta ined o ne cop y of the subm ission form. L ater, after the evidence had

been anal yzed, Morgan retrieved State’ s Exhibits 7 and 8 from the laborat ory and th ey w ere “logged back in” and “locked back into the lockup. ” Morgan, refer ring to State ’s Exhi bit 7 , testi fied, “T his is t he bag that I t ook t o the l ab w ith t he evi dence i n it.” Morgan testified that he knew State’s Exhibit 7 was the same bag because “ [i]t’s si gned by Rob ert Lew is. It’s th e sam e case nu mb er.”

Sergeant Jimmy H opkins, the evidence cus todi an for NET at the time of tr ial, broughtStat e’s Exhibits 6, 7, and 8 to court on the day of trial. The exhibits were identified by the DP S lab oratory number L271689. On cross-examination by defensecounsel, Hopkins was askedwhether he had ever se en State’s Exhibit 8 beforethe day of trial. He replied that he had
seenthis evidence “the night that the traf fic stop was made up here. I w as wi th Se rgeant L ewi s.” By car e ful reading of

the record, we have ascertained that a complete chain of custody of the contraband was establishe d.

In other caseswhen the sufficiency of the ev idence w as challenged, less compelling evide nce to show a chain of custo dy has b een hel d suffici ent. Jones v . State , 617 S.W.2d 704, 70 5 (Tex . Crim . App . 1981); Simmons v. State , 9 44 S.W.2d 11, 12-13 (Tex. App.—Tyler 1996, n o pet.); Murray v. State , 864 S.W.2d111, 116-17 (Tex. App.—Texarkana5

19 93, pet. ref

’d); Madison v

. State , 825 S .W.2d 202, 20 4-05 (T ex. A pp.— Hou ston [1st Dist .] 1992, no pet. ); Domingue z 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 DP S chem ist te stifi e d concerning the analysis , handling, and chain of custody of the substance submitted for a nalysis while the substance was at the la borato ry. In his analys is the chemist found the substance analyzed was 8.5 grams of cocaine . The evidence is suf ficient to sup port ap pella nt’s convicti on. Appella nt’s p oints of er

ror a re overrul ed. The j udgment is affirme d.

Carl E. F. Dall

y, Jus tice Be fo r e C hie f Ju st ice Abo us sie , Ju st ice s Kid d a ndDa lly * Af fi rmed File d: January

11, 2001 Do No t Publis

h

* Bef ore Ca rl E. F . D al l y , J udge (re ti re d) , C our

t of Cr i m i n al A pp ea l s, si tti ng b y as si gn men t. See Tex . Gov’ t Code A

nn . § 74.00 3(b ) (We st 1998 ).