r

JUAN JESUS GABRIEL, Appellant NO. 0088-93, v. THE STATE OF TEXAS, Appellee 

### FILED IN COURTO[AfPEALS 

### MAR

# 1~;1995 MELANIE KEETON CLERK, 5th DISTRICT
PetitionForDiscretionary Review from the Fifth Court of Appeals (Dallas County)

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW Appellantwas convictedoftheunlawfulpossessionwith 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). Ajuryassessedpunishmentattwenty-fiveyears' 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 granteddiscretionaryreviewtodeterminewhether the Court of Appeals erred in holding the evidence sufficient to show appellantpossessedcocaine in an amountgreaterthan 28 grams where only 2.237 grams in five ofthe fifty-fourbaggies 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 requiredtotest enough substancetomeetthe allegedweight 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**t~o ~_,r**  th&ee 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 spotGabriel - 2
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. Jacksonv. 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,_u.s._, 112 s.ct. 202, 116 L.Ed.2d 162 (1991). The State showed the random samples were the alleged controlled substance, andthe total weight ofthe substance seized was within the range of that alleged. It was rational for the factfinder to conclude that identically packaged substances, which appear to be the same substance, are in fact the same substance. Themanneroftestingthe substancesby random sampling goes only to the weight the jurymay give to the tested substances in determining the untested substance is the same as the tested substance. Inaddition, appellantcouldhaveconducted 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.

(Delivered March 8, 1995) En Bane Publish McCormick, Presiding JudgeJUAN JESUS GABRIEL, Appellant NO. 0088-93 THE STATE OF TEXAS, Appellee 

### v. PetitionforDiscretionary Review from the Fifth Court of Appeals [DALLAS County]

CONCURRING OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Would that every issue this Court exercised its discretion to reviewwere as simpleand straightforwardas thepluralitybelieves this one tobe! The reality is, of course, that issues that simple
are not worth this Court's time and effort, since, presumably, the various courts of appeals can be trusted to resolve them without

our interference. We granted discretionary review in this cause, however, preciselybecausethepartiesraise a difficultand important issue, likely to recur, "which has not been, but should be, settled by the Court of Criminal Appeals." Tex.R.App.Pro., Rule 200(c)(2). We fail to honor our duty to the jurisprudence of the State when we treat issues momentous enough to attract our attention in the first place with such short shrift. We do a disservice to the bench and bar, and show nothing short of disrespect for the parties themselves, when we ignore the complexity of hard issues, squarely presented and well briefed, such as that raised here. Ultimately I agree with the Court's disposition today. But I

am far less certain than the plurality that a rational jury could findbeyond a reasonable doubt thatvarious substances arethe same simply because they "appear to be" so, and are "identically packaged." Slipop. at 2. To say, moreover, that appellant couldhave tested all ofthe substance toprove itwas not all the same smacks of unconstitutional burden shifting.**~-** I write to explain why

on the facts of this case I reach the sam·e conclusion as the plurality despite these concerns. 

### I· Appellant was arrested in what was described at trial as aGABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -2-

experienceas anundercovernarcotics investigator, thatdrugswere sold from the apartment. And indeed, a confidential informant had purchased a substance at that location that police had "verified" to be cocaine. In executing the search warrant, officers discovered the door to the apartment was barricaded with a wood block, anothercharacteristic of a "traphouse." On thetop ofthe dresserofficers found fifty-four smallbaggies, eachcontaining several "rocks" ofwhat they suspectedwas crackcocaine, and a loadedpistol. Afield testprovedpositive for cocaine, although one ofthe officers conceded that such "spot" tests are not conclusive. The suspectedcrackcocainewas forwarded tothe forensic lab, where itwas examined by forensic analyst Andrea Bunn. On her direct examination Bunn testified: "Q. Okay. Could you briefly describe what type of analysis did you perform? A. There were three tests that were performed on the contents of [the fifty-four baggies], one: a color test or a spot test. It's a presumptive test used to determine what might be present in the substance. A second testis a gas chromatographmass spectrometrytest, which specificallyidentifieswhatchemical ispresent, andthe third test, a gas chromatograph test, which helps in the quantitating, or tellinghow much of a chemical is present. Q. Ma'am, the last two tests that you mentioned, are these done with special scientific equipment? A. Yes. Q. Okay. And what did your analysis show, ma'am? A. My analysis showedthattherewas cocainepresent in the zip lock plastic bags. 

## * * * Q. Okay. Mrs. Bnnn, couldyoubriaflydescribe

-- your analysis showed that it was cocaine. How much

-- could you describe how much cocaine or what percentage of cocaine you found? A. In one of the zip lock plastic baggies that I analyzed, where three tests were performed, the three that I mentioned. the scot test. the aas**chrnm~~nnr~nh m~~~** GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review

and the gas chromatograph test. on one of the bags, the amount of cocaine found was six hundred and sixty-four milligrams, ninety-ninepercent, and the total weight of thatmaterialwas sixhundredand seventy-onemilligrams. On the secondbag, the amount of seven hundred and twenty-five milligrams, ninety-nine percent, and the total weightofthematerialwas sevenhundredtwenty-fivemilligrams. On two additional bags, I didjust a spot test on the two, and that indicated to me that there was cocaine present in comparison with the others that

-- the zip lock plastic bags that I had analyzed. The total weight of the hard off-white material in all fifty-four zip lock plastic bags was thirty-five point two grams. Q. Ma•am, is thirty-five point two grams an amount greaterthantwenty-eightgramsbutlessthantwohundred grams? A. Yes, it is. Q. Okay. Mrs. Bunn, based on your analysis that you conducted, your scientific analysis, yourtraining, your experience in doing this type of work, did you have or did you form an opinion about the remainder of the bags that you did not actually test? Did you form an opinion as to what those substances were? [Objection overruled] A. In my opinion, from my analysis of the other five Dags, tha fact that all the material in the rest of the bags appearedtobethe same, my opinionthere is cocaine present." On cross-examination the following colloquy occurred: "Q. Whatwas the total amount, whatwas thetotal weight ofthe substancethatyou identifiedas cocaine, thatyou scientifically tested? 

## * * 

### * A. Two point two three seven grams. Q. Okay. So that is less than twenty-eight grams, is that correct? A. Correct. Q. So the remainingthirty, approximatelythirty-three grams, you did not test, is that correct? A. Correct. Q. All right. So that may be cocaine, may not be cocaine, is that correct? A. It's possible, yes. -3-GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review

stance that is submitted to the institute or just to do a portion of it? A. As to the deciding what to do, it's decided, basically, by funding. Because of the cost of doing the analysis, it's decided that we can't afford to do all of them. Q. It's a money consideration? A. Correct. 

## * * 

## * Q. Okay. If

-- the basis ofyour opinion as tothe remainder of the substance that was submitted to you is based on the fact that you looked at it: it appeared to bethe same substancethatyou analyzed, isthatcorrect? A. Correct. 

## * * * Q. Okay. All came from the same source, so you are assuming that the one was cocaine and the other looks like it, so it's going to be cocaine too? A. Right. I'm saying that of the fifty-four, I did five of them, and those five was (sic) cocaine, and from

-- in my opinion, it's cocaine, the rest of it. Q. Right. there is no --· other than that, there is no scientific basis to your opinion? A. There is a scientific basis in the sense of statistics that it is cocaine." Back on re-direct examination, Bunn continued: "Q. First of all, if a Defendant, a person chargedwith a crime, wants to have all the drugs fully analyzed, you would do so at their request, is that not correct? A. Correct. 

## * * * Q. Now, ma'am, you stated earlierthat, you know, your scientificopinion, youbelievedtheothermaterials, the other ones that you did not test, to be cocaine also? A. Yes. Q. In forming that op1.1uon, ma'am, besides just the fact that youhad tested the other five, in forming that opinion, didyoutake into accounttheconsistencyofthe other

-- other

-- what you believed to be the other cocaine? Did you take into account the size, the appearance, the whole packaae? -4-GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review

For all practical purposes, this was Bunn's whole testimony. 

## -sA three judge panel of the Dallas Court of Appeals held the foregoing evidence sufficient to prove beyond a reasonable doubt that appellant possessed cocaine in an aggravated amount, that is,

an amount more than 28 but less than 200 grams. V.T.C.A. Health & Safety Code §481.112(c) and (d)(l). See Gabriel ...,• State, 842 S.W.2d 328, at 332-33 (Tex.App. -Dallas, 1992). Justice Kaplan dissented.**~.,** at 333-35. Apparently finding no Texas precedents, both the majority and the dissenter below cite cases from Illinois and Florida. The gist of the disagreement seems to be what significance to give to the fact that the substance in the present case was found in fifty-four separate receptacles. The majorityheld, ineffect, thatbecause the substancewas apparently homogeneous, the State could establish that a random sample was cocaine, and thatby extrapolation from that sample, thejurycould find beyond a reasonable doubt that the whole was what the sample proved to be. Justice Kaplan disagreed, believing that the better reasoned caselaw from those jurisdictions that have addressed the question allow extrapolation from random sampling only where a homogeneous substance is found in a single receptacle. In his petition for discretionary review, appellant argues that similarity in appearance and texture arenotenoughtojustify jury extrapolation from a sample to the whole with the requisite degree of confidence,**~:** beyond a reasonable doubt. We granted his petition to address this question. Rule 200(c)(2), supra. We should at leastexaminethe cases from otherjurisdictionsthatthe court of appeals invoked, as !\fell as other cases recently decided that the parties call to our attention. ll·GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -6-

ered to officer at same time; twelve field-test positive for LSD, and are shown to be homogeneous; then six more prove conclusively tobe LSD; held admissible to show all 89 tablets are LSD) ; People

v. Yosell, 53 Ill.App.Jd 289, 11 Ill.Dec. 184, 368 N.E.2d 735 (1977) (evidence sufficient to prove requisite amount, where one tablet from each of ten baggies found in single paper bag tested conclusively for barbituric acid); People v. Kaludis, 146 Ill.App.Jd 888, 100 Ill.Dec. 382, 497 N.E.2d 360 (1986) (conclusive test on random sample of pills found in single bag sufficient to prove requisite amount of methaqualone, where pills were all same size, shape, color and density, and each marked "Lemmon 714 11 ). Where suspected contraband is found in separate receptacles, however, courtshave generallyrequiredthat atleast a sample from each receptacle be tested before a jury can say with a level of confidence beyond a reasonable doubt that all of the substance, or at least enough of it to establish the jurisdictional amount, containsthat allegedcontraband. See Peoplev. Yosell, supra; People

v. Games, 94 Ill.App.3d 130, 49 Ill.Dec. 666, 418 N.E.2d 520 (1981) (chemist's testimony that one of two bags proved to be cannabis, and that both bags together weighed requisite amount, not sufficientto establishrequisite amountwas cannabis): Peoplev. Ayala, 96 Ill.App.Jd 880, 52 Ill.Dec. 446, 422 N.E.2d 127 (1981) (conclusive test of sample of substance taken from only one of two bags, bothofwhichhad field-testedpositive forheroin, presents inference sufficient to establish proof by a preponderance of evidence that both bags contained heroin; but inference insufficient as a matter of law to constitute proof beyond a reasonable doubt): People v. Hill, 169 Ill.App.3d 901, 120 Ill.Dec. 574, 524 N.E.2d 604, at 611 (1988) ("Where separatebags orcontainers of suspected druas are seized. a samnle from each bao or r.nnt'.ai**n~r mn~~:t'** **h~** l"'nn-GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -7-

bag test conclusively for powder cocaine; even though contents of all 92 packets look alike, evidence held insufficient to establish requisite amount); Campbell v. State, 563 So.2d 202 (Fla.App. 3 Dist. 1990) (requisite amount to show delivery offense not established "wherechemistonlytested one ortwoheroincapsules found in a change purse."); People v. Maiden, 210 Ill.App.3d 390, 155 Ill.Dec. 120, 569 N.E.2d 120 (1991) (evidence insufficienttoprove requisite amount where all three bottles of suspected PCP fieldtest positive, but only one subjected to test that conclusively establishesPCP); Peoplev. Young, 220 Ill.App.3d488, 163 Ill.Dec. 290, 581 N.E.2d 241 (1991) (even though three baggies and numerous paper packets all found in one paper bag, evidence insufficient to show requisite amount where only one baggie and one packet tested and shown to be powder cocaine); but see Statev. Riley, 587 So.2d 130 (La.App. 2 Cir. 1991) (testing of only six of 33 baggies of whitepowder**~ubstancs** all found in trash can enough to show all 33
are cocaine). Nevertheless, the courts that have addressed the specific question have held that only a random sample of crack cocaine need be tested to establish the requisite amount, whether found in one receptacle or in individual packets. Bond v. state, 538 So.2d 499 (Fla.App. 3 Dist. 1989) (testing of only one of 139 small baggies sufficient to show all are "rock" cocaine, because, unlike powder cocaine, which resembles many other substances, "rock" cocaine is homogeneous, like similar-looking pills); State v. Meeks, 552 N.E.2d 328 (Fla. App. 3 Dist. 1989) (same as liQ.ng); state v. Ballom, 562 So.2a 1073 (La.App. 4 Cir. 1990) (testing of four of 1095 baggies of "rocks" of suspected cocaine all found in single paperbag sufficient to show all are cocaine, since "[t]here is noGABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review 

## -aall thirty-one. rocks contained cocaine."); State v. Gipson, 856 S.W.2d 78 (Mo.App. E.D. 1993) (only one of numerous "rocks" found in cup tested and found to contain a cocaine base; but in view of testimonyfrom a "criminalist"thatindividual "rocks" ofcrackcocaine are usually all cut from one "batch," evidence held sufficient to show all "rocks" are cocaine). Itappears from these casesthatby and large itis sufficient to extrapolate from a random sample of an apparently homogeneous substance found in a single receptacle that the whole of the substance is the same. In the case of contraband pills, as long as they share size, weight, shape and scoring**characteri~tics,** they may all be assumed tobe the same as a random sample, whether found in the same receptacle or in different receptacles recovered from the same general location. Under these circumstances it is generally found that the strength ofthe inferencethat thewhole ofthe substance, ora requisitepart, is the same as the sample is sufficient to support a juryconclusion to a level of confidence beyond
a reasonable doubt. And as long as the strength of the inference supports a juryconclusionbeyonda reasonabledoubt, the Statehas met its burden ofproduction of evidence sufficient to support the verdict. More evidencewould advancethe State'sburdenofpersua- §ign, of course. But that is proverbial gravy; the State has alreadymade out itsprima facie case, producing sufficient evidence to convince**~** jury beyond a reasonable doubt. See Rogers v. state, 774 S.W.2d 247, at 256 (Tex.cr.App. 1989). In thepremises itdoes notunconstitutionally shifttheState'sburdenofproofto suggest, as some of the cases do, that the defendant could have tested the whole of the substance himself in order to meet and defeat the State's burden of persuasion, if he thinks such testing

__J.,

.. -------- .• •GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -9-

pear tobe the same, if other substances resemble the sampled substance. Because any of a number of substances look like powdered cocaine or heroin, the inference that the whole, or a requisite amount, is the same as a sample taken from fewer than all of the receptacles, or at least enough receptacles to show the requisite amount, is not compelling enough to justify a jury finding to a level ofconfidencebeyond a reasonabledoubt. Underthese circumstances, in order to satisfy its initial burden ofproduction, the Statemust conclusivelytest at least a sample ofa sufficientnumber of the receptacles to prove up the requisite amount of contraband. In these premises, it is not surprising that many courts have observed that when the State has at its disposal a test that
can conclusively prove that a requisite amount of a substance was contraband, but does not avail itselfof that test, ithas not made out a prima facie case. E.g., People v. Ayala, supra; People v. 'd * Ma1 en, supra. The question might be framed, then, as follows: Does 11rock11 cocainehavea sufficientlydistinctivetexture andappearancethat
a sample from one receptaclethattests conclusive for cocainewill justify the inference, beyond a reasonable doubt, that substances of like texture and appearance found in other receptacles in close proximity to the first are also cocaine. In Bond v. State, supra, the Florida court opined that rock cocaine "more closely resembles pills than powder." It therefore concluded that testing the con-
*This observation puts me inmind of the former rule, now defunct, that in a veak circumstantial evidenca case, where the record shows there was other evidence available to the State which wouldhave shed additional light onthe facts, and the State neither adduced that evidence, nor satisfactorily accounted for its failure to do so, an appellate court will find there is a reasonable doubt as a matter of law. E.g., Cruz v. State, 482 S.W.2d 264

I

...___ --- •---- ""

___ ,_**-'--~-** ._... _____.&... -'----...5-----• ..&...L.!

_____ .... _....__ ---------GABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -10-

tents of one of 139 baggies of suspected rock cocaine was sufficient to support the inference that all was cocaine beyond a reasonable doubt. This seems an unacceptably superficial analysis. In State v. Ballom, supra, a Louisiana court observed that no evidence showed that the 1095 baggies of rock cocaine "were not fungible." This analysis begs the question. Without first deciding whether a sample of some ofthebaggies ofwhat appeared tobe rock cocaine was sufficient to meet the State's burden to produce evidence that all of the baggies contained cocaine, the observation thatno evidenceprovedthe contents ofthebaggieswereDQt fungible only servesto shifttheburden ofproof. The Missouri case of State v. Gipson, supra, is more persuasive. In Gipson: "thecriminalisttestifiedcocainebaseismade bymixing cocainepowderwithbaking soda andwaterand cooking it. The resulting crystalline will fall to the bottom and is cut up into smaller chunks. This evidence is probative that the rocks were all cut from one 'batch' of rock cocaine, rather than separate sources. Also, by the time thecriminalist looked atthe rocks, theyhadbroken into numerous chunks, unifona in color and consistency. The criminalist stated breakage was characteristic of rocks containing cocaine." 856 S.W.2d at 80. We have no like testimony in the instant case,
nor any other evidence to show that rock cocaine has distinctive characteristics not commonly shared by other substances. It is therefore more difficult to conclude that a sample taken from one baggiethatpositivelyprovestobe cocainewill support the inference that all fifty-four baggies contain cocaine to the level of confidence beyond a reasonable doubt. Nevertheless, onthe facts ofthis case I cannot concludethat the court of appeals erredto holdthe Statemet itsburden to produce evidence sufficient tojustify the inferencebeyond a reasonabledoubt that at least 28 grams of the substance contained in the fifty-four baggies was cocaine. The evidence does show that theGABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -11-

•crackhouse." Threeofthe fifty-fourbaggiesprovedconclusively to contain cocaine. The police conducted a •spot" test on another baggie, and the analyst, two more, which all showed positive for cocaine. Given these circumstances, thejury could inferthat all the similarly situated baggies contained the same substance, and that that substance was cocaine. Moreover, the strength of that inference, while less than overwhelming, was at least sufficient that I would not overturn the court of appeals majority's conclusionthat a rational jury could accept it as true beyond a reasonable doubt. Arcila v. State, 834 S.W.2d 357 (Tex.cr.App. 1992). I therefore agree thatthe courtof appeals' judgment shouldbe affirmed. lll· So long as the State has satisfied its burden of production,
we may legitimatelyexpectthe accusedtoproduceevidence, ifany, to counter that prima facie case. Bunn testified that a lack of "funding" limited her ability to test a sample from all fifty-four baggies in this cause. She added, however, that at a defendant's request, she would analyze "all the drugs.• It is doubtful that dueprocessrequiresthe Statetoactuallygeneratepotentiallyexculpatory evidence. See sanMiguel v. State, 864 S.W.2d 493 (Tex. Cr.App. 1993). Due process does require, however, that indigent defendants be provided the resources to investigate the existence of such evidence. See De Freecev. State, 848 S.W.2d 150 (Tex.cr. App. 1993); McBride v. State, 838 s.W.2d 248 (Tex.cr.App. 1992): Article 26.05(a), V.A.C.C.P•• The plurality today obseL-ves that "appellant could have conducted independentchemical testson all fifty-fourbaggiesto show they did not containthe same substance." Slip op. at 2. BecauseGABRIEL Concurring Opinion on Appellant's Petition for Discretionary Review -12-

right to access towhatever resources he needed to investigate and counter, ifpossible, the State's prima facie case. Nevertheless, the plurality's naked observation ismisleading, and could lead to improper burden-shifting in the general run of cases. See e.g., Statev. Ballom, supra. This kind of language should be eschewed. Becausethepluralityneglects itsresponsibilityasa discretionaryreviewcourttoexplainand illuminate, I jointhejudgment of the Court, but not the plurality opinion.
(Delivered: March 

### s, 1995) EN BANC PUBLISH Mansfield, J., joins this opinion. CLINTON, Judge

Maloney, J., joins Parts I and II of this opinion and otherwise joins the judgment of the Court.JUAN JESUS GABRIEL, Appellant NO. 0088-93 v. THE STATE OF TEXAS, Appellee Petition for Discretionary Review from the Fifth Court of Appeals

[DALLAS County]
DISSENTING OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW Today, we are presented with the following question of first impression: In cases alleging an aggravated offense of possession of a controlledsubstancewherethe alleged controlled substance is separately**packag~d,** mt'ist**~he** State scientifically analyze a sufficient number of the packages to establish the aggravated amount?1 Believing the question should be answered in the affirmative, I respectfully dissent.
I. Following a raid on an alleged "trap house," Dallas police officers seized 54 plastic baggies, each containing two or three individual "rocks" of a substance suspected tobe cocaine. Afield "spot test" conducted on a portion of the contents suggested the substance was cocaine.2 The baggies were then submitted to a State forensic drug chemist Hho testified that the total weight of the contents of the 54 baggies was 35.2 grams. The chemist scientifically tested the contents of three of the 54 baggies. On the contents of onebaggie the chemist conducted a spot test, a gas chromatograph test, and a mass spectrometry test which revealed cocaine, ninety-nine percent pure. On the contents of the two other baggies, the chemist conducted a spot test and a gas chromatographtestwhichrevealedcocaine, inbothbaggies, ninety1 With a glib nonchalance ill suited to the importance of the issuepresented, thepluralityavoidsdiscussingthisquestion. Nor does the plurality discuss how either our courts of appeals or the courts of foreign jurisdictions have answered this question. The bench and bar and the**peo:~>le** of this State deserve more from a court of last resort. Such an exceedingly poor attempt to address this pressing issue serves only to undermine this Court's future efforts to resolve important issues.GABRIEL (Dissenting Opinion) --2

ninepercentpure.3 The cocaine scientificallytestedweighed less than 28 grams. From hervisual observation of the similar texture and coloring of the contents in the other baggies, as well as the similarpackaging, thechemist speculatedthattheuntestedbaggies also contained cocaine. However, she admitted itwas possible the untested baggies did not contain cocaine because their contents
were not scientifically analyzed. Appellant was convicted of possession with the intent to deliver a controlled substance weighing at least 28 but less than 200 grams.4 Tex. Health & Safety Code Ann. § 481.112(c). It is true that in reviewing the sufficiency of the evidence,

we must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789 (1979); Langston v. State, 855 S.W.2d 718, 721 (Tex.cr.App. 1993); and, Reeves v. State, 806 S.W.2d 540, 543 (Tex.cr.App. 1990). When faced with a challengetothe sufficiency of the evidence, we must insure that the State "has proven beyond
a reasonable doubt each and every element of the alleged crime and not just fprovidedl a plausible explanation for the crime."5 Butlerv. State, 769 S.W.2d 234, 237 (Tex.cr.App. 1989), overruled
on other grounds; Geesa v. State, 820 S.W.2d 154, 161 (Tex.cr.App. 1991); Wright v. State, 603 S.W.2d 838, 840 (Tex.cr.App. 1980); and, Tex. Penal Code Ann. § 2.01. See also, In re Winship, 397

u.s. 358, 364, 90 s.ct. 1068, 1072 (1970). Just as our role is not

3 The chemist conducted a spottest ontwo oftheremaining baggies. Although the results of th1t test**suggt~sted** the presence of cocaine, a spot test is not conclusive. See, n. 2, supra.
4 The indictmentalleged, inpertinentpart, thatappellant possessed:GABRIEL (Dissenting Opinion) --3

to become the "thirteenth juror,11 reweighing the evidence and substitutingourown opinion forthat ofthejury, Wilsonv. state, 863 S.W.2d 59, 65 (Tex.cr.App. 1993), so to, we must not allow our deference to the verdict to relieve the State of its burden of proving every element of the crime. To do so would render us a rubber stamp and abrogate our constitutionally mandated responsibilities.


### II. A. InTborpe y. State, 831 S.W.2d 548 (Tex.App.--Austin 1992, no pet.), the Austin Court of Appeals addressed an issue similar to the issue presented in the instant case. Thorpe was convicted of aggravated possession of cocaine and, on appeal, contended the evidence was insufficient to prove he possessed at least 28 grams of cocaine, including adulterants and dilutants. }g., 831 S.W.2d at 549. The Court of Appeals recited the facts as follows:

IQig. At trial the State introduced into evidence four exhibits that police officers had seized at appellant's apartment andthattheState'schemisthadtested for the presence of controlled substances. Two of the tested exhibits, numbers 6 and 7, contained no controlled substances; however, the other two exhibits, numbers 4 and 5 tested positively for cocaine. Exhibitnumber4 included 101small zip-lockedbags, each ofwhich contained a solid granular substance. The State's chemist t-ested 10 of these 101 small bags and found that the substance in each of the 10 small bags contained cocaine. The combinedweight of all 101 small bags was 16.93 grams; however, there was no evidence as to the weight of the 10 small bags that the State's chemist tested. Exhibit number 5 consisted of a single bag containing two large chunks of solid material. The State's chemist determined that these chunks contained cocaine. Theweight ofexhibitnumber 5 was 27.

### oo grams; therefore, the aggregateweight ofboth exhibits 4 and 

### s was 43.93 grams.

The State also presented testimony by the chemist who tested the baggies. While the chemist assumed the total weight of theGABRIEL (Dissenting Opinion) --4
Relying upon our decisions in Cawthon v. State, 849 S.W.2d 346, 348-349 (Tex.cr.App. 1992); and Reeves v. State, 806 S.W.2d 540,6 the Court held the evidence was insufficient to prove aggravated possession: Obviously, the State presented sufficient evidence ofthe identity of the named illegal substance; exhibits 4 and 5 contained at least some cocaine. However, there is no evidence that the remainder of the substance was adulterantsanddilutants. The state'schemisttestified only that exhibits 4 and 5 could include adulterants. Under the teaching of Reeves and Cawthon, this is not sufficient "Absent facts to show that the remainder of thematerialconsistedofsubstancesintendedtoincrease the bulk or quantity of the final product, (crack cocaine], it cannot be said that the remainder was an adulterant or dilutant." Reeves, 806 S.W.2d at 544 (emphasis added). Even ifwe assume, therefore, thatthe State's evidence was sufficient to establish that exhibits 4 and 5 "contained" cocaine and adulterants and dilutants, there was absolutely no evidence that was all the exhibits contained. Thus, no rational juror could determine beyond a reasonable doubt that of the 43.93 grams of substance seized in appellant's apartment, at least 28 grams was cocaine plus adulterants and dilutants; basedontheevidencepresented, itcouldhave been more or it could have been less. 

### * * * Our conclusion also finds support in the Court of Criminal Appeals' analysis in Reeves and Cawthon. In Reeves the State's expert testified that the entire contents of a bag containing amphetamine weighed 29.76 grams. However, he also statedthathe didnotdetermine theweight ofthe amphetamine inthebag orthe nature or weight of the other substances in the tab. The Court of Criminal Appeals held that the evidencewas insufficient to prove delivery of more than 28 grams of amphetamine. Reeves, 806 s.W.2d at 543-45. In the present case, the state's expert testified that the entire contents of two exhibits containing cocaine weighed 43.93 grams. However, there was no testimony as to the weight of the cocaine in the exhibits, nor was there testimony as to the identity or weight of the other substances in the exhibits. ThOrpe, 831 S.W.2d at 551 (emphasis in original).

6 In Cawthon, 849 s.W.2d a'i: 348-349, and, Reeves, 806 S.W.2d at 542-543, we heldthat for aggravateddrug caseswhere the State contends the weight of the controlled substances includes adulterants or dilutants, the State must prove not only the existence of an illegal substance but also that the remaininqGABRIEL (Dissenting Opinion) --5

B. The CourtofAppeals' reasoning inThOrpe is applicabletothe instant case. Thorpe essentially holds that in cases alleging an aggravated offense of possession of a controlled substance, the State must conclusively prove through scientific testing that the alleged controlled substance, along with its adulterants and dilutants, exist inan amount sufficientto raisethe offense to an aggravated level.**~.,** 831 S.W.2d at 548. The holding in Thorpe is sound and should be adopted by this Court. In the instant case, the scientific testing conclusively proved the presence of cocaine. However, the amount tested was less**~** 28 grams. Therefore, absent conclusive proof through scientific testing that the untested baggies contain a sufficient amount of cocaine to elevate the weight to 

### At least 28 grams, the State has failed to prove an element of the offense.

IV. In his concurring opinion, Judge Clinton relies on foreign jurisdictions to arrive at the same holding as in Thorpe, i.e., where separate packages or containers of suspected drugs have been seized, a sample of each bag or container must be conclusively tested in order to prove that it contains a controlled substance. Concurring op., pp. 8-9. See also, People v. Young, 581 N.E.2d 241, 247 (Ill.App. 1st Dist. 1991); People v. Miller, 578 N.E.2d 1065, 1067 (Ill.App. 1st Oist. 1991); People v. Maiden, 569 N.E.2d 120, 125-127 (Ill.App. 1st Dist. 1991); Campbell v. State, 563 So.2d 202, 202 (Fla.App. 3rd Dist. 1990); and, Ross v. State, 528 So.2d 1237, 1241 (Fla.App. 3rd Dist. 1988). Thus, Judge Clinton correctly concludes the ran<.lom sampling of the contents of the baggies was clearly insufficient to identify the substances in all of the baggies. Concurring op., pp. 8-10.GABRIEL (Dissenting Opinion) --6

the circumstances of the seizure, the similartexture and color of the substances, the similar packaging of the contents of the baggies, and the fact that the contents of some of the baggies tested positive for cocaine, permits the inference that the remaining untested baggies also contain cocaine.7 Concurring op., pp. 10-11. This reasoning is deeply flawed; if one can not infer thatthe untested baggias contain cocaint:! from the baggies that do contain cocaine, then why may one infer that the untested baggies contain cocaine from the fact that they were found in a crack house? AlthoughthecircumstantialevidencenotedbyJudgeClinton is highly probative of appellant's intent to possess the alleged controlled substance, see, Branchv. State, 599 S.W.2d 324, 325-326 (Tex.cr.App. 1979), I do not believe that evidence concurrently proves the identity of the substances because such evidence is qualitatively distinct. Consider an example: a defendant who possesses a substance knowing it to be cocaine is guilty of**posses~:don** of a c•::>ntrolled substance. Martin v. State, 753 S.W.2d 384, 387 (Tex.cr.App. 1988). By contrast, a defendant who possesses a substance, believing it to be cocaine, but which is actually baking soda, is not guilty of possession of a controlled substance, even if he behaves in a manner consistent with one who actually possess cocaine. In both situations, the defendant1s

7 The reliability of circumstantial evidence, rather than scientific testing, toprove the identity of an alleged controlled substance isundermlnedbythe Legislatl1.re1e: recognitionthat itis not uncommon for a substance to be offered as a controlled substance, appear to be a controlled substance, but in reality, be an innocuous substance. To address such a situation, the Legislature enacted Tex. Health 

### &Safety Code Ann. § 482.002(a), whichprohibitsthedeliveryofa "simulatedcontrolled substance."GABRIEL (Dissenting Opinion) --7

intent is evident from circumstantial evidence.8 However, the defendant's criminal liability is entirely contingent on the identity of the substance. As we noted in Stewart v. State, 718 S.W.2d 286, 289 (Tex. Cr.App. 1986), the identity of a controlled substance is generally determined through chemical analysis. See**~,** Garcia v. State, 473 S.W.2d 488, 490 (Tex.cr.App. 1971):**~'Aguero** v. State, 298 S.W.2d 822, 824 (Tex.cr.App. 1957). Similarly, Thorpe and the

casesfrom foreignjurisdictionsmake clearthatwithout scientific testingwe cannotbe certainthatthe contents of separatepackages
orcontainersare identical. Consequently, circumstantialevidence may not be relied upon to prove the identity of the alleged controlled substance.



## v. In light of the foregoing, I would hold that when the alleged controlled substance is separately packaged, the State must scientifically analyze a sufficient number of the packages to establish the aggravated amount. Without such a holding the State is relieved of its burden of proving each element of the o.ffense. With these comments, I respectfully dissent.

Overstreet, J., joins this opinion. (Delivered March 8, 1995) En Bane Publish BAIRD, Judge

8 Undoubtedly, a defendantwho intendsto sell an innocuous