r 

JUAN JESUS GABRIEL, 

Appellant 

NO. 0088-93, v. 

THE STATE OF TEXAS, 

Appellee 

FILED IN 

COURT O[AfPEALS 

MAR 1~;1995 

MELANIE KEETON 

CLERK, 5th DISTRICT 

Petition For Discretionary 

Review from the Fifth 

Court of Appeals 

(Dallas County) 

OPINION ON APPELLANT'S 

PETITION FOR DISCRETIONARY REVIEW 

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 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 spot 
Gabriel - 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. 

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,_ u.s._, 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 factfinder 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. 

(Delivered March 8, 1995) 

En Bane 

Publish 

McCormick, Presiding Judge 
JUAN JESUS GABRIEL, Appellant 

NO. 0088-93 

THE STATE OF TEXAS, 

Appellee 

v. 

Petition for Discretionary 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 

review were as simple and straightforward as the plurality believes 

this one to be! 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, precisely because the parties raise a difficult and 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 

find beyond a reasonable doubt that various substances are the same 

simply because they "appear to be" so, and are "identically packaged." Slip op. at 2. To say, moreover, that appellant could have 

tested all of the substance to prove it was 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 a 
GABRIEL Concurring Opinion on Appellant's 

Petition for Discretionary Review 

-2-

experience as an undercover narcotics investigator, that drugs were 

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, 

another characteristic of a "trap house." On the top of the dresser officers found fifty-four small baggies, each containing several 

"rocks" of what they suspected was crack cocaine, and a loaded pistol. A field test proved positive for cocaine, although one of the 

officers conceded that such "spot" tests are not conclusive. 

The suspected crack cocaine was forwarded to the forensic lab, 

where it was 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 

test is a gas chromatograph mass spectrometry test, which 

specifically identifies what chemical is present, and the 

third test, a gas chromatograph test, which helps in the 

quantitating, or telling how 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 showed that there was cocaine present in 

the zip lock plastic bags. 

* * * 

Q. Okay. Mrs. Bnnn, could you briafly describe -- 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-nine percent, and the total weight of 

that material was six hundred and seventy-one milligrams. 

On the second bag, the amount of seven hundred and twenty-five milligrams, ninety-nine percent, and the total 

weight of the material was seven hundred twenty-five milligrams. On two additional bags, I did just 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 

greater than twenty-eight grams but less than two hundred 

grams? 

A. Yes, it is. 

Q. Okay. Mrs. Bunn, based on your analysis that you 

conducted, your scientific analysis, your training, 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 appeared to be the same, my opinion there is cocaine 

present." 

On cross-examination the following colloquy occurred: 

"Q. What was the total amount, what was the total weight 

of the substance that you identified as cocaine, that you 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 remaining thirty, approximately thirty-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 of your opinion as to the remainder of the substance that was submitted to you is 

based on the fact that you looked at it: it appeared to 

be the same substance that you analyzed, is that correct? 

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 charged with 

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 earlier that, you know, your 

scientific opinion, you believed the other materials, 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 you had tested the other five, in forming that 

opinion, did you take into account the consistency of the 

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 

majority held, in effect, that because the substance was apparently 

homogeneous, the State could establish that a random sample was 

cocaine, and that by extrapolation from that sample, the jury could 

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 are not enough to justify 

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 least examine the cases from other jurisdictions that the 

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 

to be 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, courts have generally required that at least 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, contains that alleged contraband. See People v. 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 sufficient to establish requisite amount was cannabis): People v. 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, 

both of which had field-tested positive for heroin, 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 separate bags or containers of suspected 

druas are seized. a samnle from each bao or r.nnt'.a i 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 "where chemist only tested one or two heroin capsules found 

in a change purse."); People v. Maiden, 210 Ill.App.3d 390, 155 

Ill.Dec. 120, 569 N.E.2d 120 (1991) (evidence insufficient to prove 

requisite amount where all three bottles of suspected PCP fieldtest positive, but only one subjected to test that conclusively 

establishes PCP); People v. Young, 220 Ill.App.3d 488, 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 State v. Riley, 587 So.2d 

130 (La.App. 2 Cir. 1991) (testing of only six of 33 baggies of 

white powder ~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 

paper bag sufficient to show all are cocaine, since "[t]here is no 
GABRIEL 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 

testimony from a "criminalist" that individual "rocks" of crack cocaine are usually all cut from one "batch," evidence held sufficient to show all "rocks" are cocaine). 

It appears from these cases that by and large it is 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 to be 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 of the inference that the whole of the 

substance, or a requisite part, is the same as the sample is sufficient to support a jury conclusion to a level of confidence beyond 

a reasonable doubt. And as long as the strength of the inference 

supports a jury conclusion beyond a reasonable doubt, the State has 

met its burden of production of evidence sufficient to support the 

verdict. More evidence would advance the State's burden of persua-

§ign, of course. But that is proverbial gravy; the State has already made out its prima 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 the premises 

it does not unconstitutionally shift the State's burden of proof to 

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 to be 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 of confidence beyond a reasonable doubt. Under these circumstances, in order to satisfy its initial burden of production, the 

State must conclusively test at least a sample of a sufficient number 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 itself of that test, it has not made 

out a prima facie case. E.g., People v. Ayala, supra; People v. 

Ma1 'd en, supra. * 

The question might be framed, then, as follows: Does 11 rock11 

cocaine have a sufficiently distinctive texture and appearance that 

a sample from one receptacle that tests conclusive for cocaine will 

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 in mind 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 

would have shed additional light on the 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 of the baggies of what appeared to be rock 

cocaine was sufficient to meet the State's burden to produce evidence that all of the baggies contained cocaine, the observation 

that no evidence proved the contents of the baggies were DQt fungible only serves to shift the burden of proof. The Missouri case of 

State v. Gipson, supra, is more persuasive. In Gipson: 

"the criminalist testified cocaine base is made by mixing 

cocaine powder with baking soda and water and 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 

the criminalist looked at the rocks, they had broken 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 

baggie that positively proves to be cocaine will support the inference that all fifty-four baggies contain cocaine to the level of 

confidence beyond a reasonable doubt. 

Nevertheless, on the facts of this case I cannot conclude that 

the court of appeals erred to hold the State met its burden to produce evidence sufficient to justify the inference beyond a reasonable doubt that at least 28 grams of the substance contained in the 

fifty-four baggies was cocaine. The evidence does show that the 
GABRIEL Concurring Opinion on Appellant's 

Petition for Discretionary Review 

-11-

•crack house." Three of the fifty-four baggies proved conclusively 

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, the jury could infer that 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 conclusion that 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 that the court of appeals' judgment should be affirmed. 

lll· 

So long as the State has satisfied its burden of production, 

we may legitimately expect the accused to produce evidence, if any, 

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 

due process requires the State to actually generate potentially exculpatory evidence. See san Miguel 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 Freece v. 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 independent chemical tests on all fifty-four baggies to show 

they did not contain the same substance." Slip op. at 2. Because 
GABRIEL Concurring Opinion on Appellant's 

Petition for Discretionary Review 

-12-

right to access to whatever resources he needed to investigate and 

counter, if possible, the State's prima facie case. Nevertheless, 

the plurality's naked observation is misleading, and could lead to 

improper burden-shifting in the general run of cases. See e.g., 

State v. Ballom, supra. This kind of language should be eschewed. 

Because the plurality neglects its responsibility as a discretionary review court to explain and illuminate, I join the judgment 

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 controlled substance where the 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 to be cocaine. A field 

"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 one baggie 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 

chromatograph test which revealed cocaine, in both baggies, ninety1 With a glib nonchalance ill suited to the importance of 

the issue presented, the plurality avoids discussing this question. 

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 

nine percent pure. 3 The cocaine scientifically tested weighed less 

than 28 grams. From her visual observation of the similar texture 

and coloring of the contents in the other baggies, as well as the 

similar packaging, the chemist speculated that the untested baggies 

also contained cocaine. However, she admitted it was 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 challenge to the 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 

Butler v. 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 spot test on two of the remaining 

baggies. Although the results of th 1t test suggt~sted the presence 

of cocaine, a spot test is not conclusive. See, n. 2, supra. 

4 The indictment alleged, in pertinent part, that appellant 

possessed: 
GABRIEL (Dissenting Opinion) --3 

to become the "thirteenth juror, 11 reweighing the evidence and 

substituting our own opinion for that of the jury, Wilson v. 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. 

In Tborpe 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 and that the State's chemist had tested 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. 

Exhibit number 4 included 101 small zip-locked bags, 

each of which 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 combined weight 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. The weight of exhibit number 5 was 27. oo grams; therefore, the aggregate weight of both 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 the 
GABRIEL (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 

of the 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 

adulterants and dilutants. The state's chemist testified 

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 

the material consisted of substances intended to increase 

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 if we assume, therefore, that the 

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; based on the evidence presented, it could have 

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 stated that he did not determine 

the weight of the amphetamine in the bag or the nature or 

weight of the other substances in the tab. The Court of 

Criminal Appeals held that the evidence was 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 held that for aggravated drug cases where 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 remaininq 
GABRIEL (Dissenting Opinion) --5 

B. 

The Court of Appeals' reasoning in ThOrpe is applicable to the 

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 in an amount sufficient to raise the 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 similar texture 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 

that the 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? 

Although the circumstantial evidence noted by Judge Clinton is 

highly probative of appellant's intent to possess the alleged 

controlled substance, see, Branch v. 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 defendant 1 s 

7 The reliability of circumstantial evidence, rather than 

scientific testing, to prove the identity of an alleged controlled 

substance is undermlned by the Legislatl1.re 1 e: recognition that it is 

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), 

which prohibits the delivery of a "simulated controlled 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 

cases from foreign jurisdictions make clear that without scientific 

testing we cannot be certain that the contents of separate packages 

or containers are identical. Consequently, circumstantial evidence 

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 defendant who intends to sell an innocuous