Affirmed as Modified and Opinion Filed January 26, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-01482-CR ERICK EUGENE FORD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1355893-N 

### MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis A jury convicted Erick Eugene Ford of posse ssion with intent to deliver four grams or more but less than 200 grams of heroin, and th e trial court assessed punishment, enhanced by a prior conviction, at twenty years in prison. In two issues, appellant challenges the sufficiency of the evidence to support his convict ion. For reasons set out below, we conclude the issues are without merit. On our own moti on, we modify the trial court’s judgment to make it conform to the record and affirm the judgment as modified. Dallas police executed a search warrant at a south Dallas duplex wh ere police suspected heroin was being sold. On arrival, the offi cers announced “police” and then heard “a lot of running” inside. The front door wa s barricaded with a cag e. It took officers about one minute to pry open the cage and “slam” the front door to gain entry. Inside, three men were already lying–2– on the floor; a fourth man, identified as appell ant, was coming out of the bathroom. After securing the house and taking the me n outside, Detective Julio Ortiz went into the bathroom and saw what he believed to be about ten heroin cap sules floating in the toilet. Ortiz removed the capsules and put them in a plas tic bag. Police also recovered, among other things, a bottle of Dormin, which is used to “cut” he roin, cash, a pocket knife with a capsule stuck to it, and a small green baggie. They also found two baggies of pills on one of the men, Derek Rayford. One of the baggies contained ninety -two pink/clear capsules. The officers field-tested the items they susp ected to be drugs. The capsules recovered from the toilet and from Rayford tested positive for heroin, and th e substance in the green baggie tested positive for cocaine. When he returned to the station, Ortiz noticed the capsules removed from the toilet had “started changing.” He sa id they had begun to dry out, change colors, and stick together, ultimately turning into a tar-like substance. Officers weighed the drugs, and Ortiz said the total weight of the suspected heroin was 14.2 gram s: 10.9 grams for the dry capsules and 3.3 grams for the tar-like substance. The items were sent to the Southwestern Institute of Forensic Sciences lab for testing. Sarah Muhlberger, a drug chemist at SWIFS, said she received a baggie containing a “brown jelly-like material” that appear ed to have “dried up.” The material contained heroin and diphenhydramine and weighed 2.04 grams, including a dulterants and dilutant s. She did not see any pieces of capsules or “anything like that” in the material. She also received a baggie containing nine ty-two pink/clear capsu les containing a brown material in powder form. Muhlberger used twen ty-five of the capsules for analysis and took a sample of the brown material from each. The material contained hero in and diphenhydramine, and the total weight of the material, including a dulterants and dilutants, was 2.25 grams. That material, combined with the weight of the jelly-l ike substance, totaled 4.2 grams, so Muhlberger–3– did not test the contents of the remaining sixty- seven capsules. She explained that it is SWIFS policy to analyze only enough evidence to reach a certain weight range for penalty purposes and analyzing the contents of the remaining capsules would not have reached the next penalty weight range. According to Muhlberger , the untested material inside the sixty-seven capsules was consistent with the brown powder she did analyze, and the weight was eight grams. The total weight of “everything” that was “[c]onsistent with heroin” was 12.2 grams. Muhlberger’s written report, which detailed the items teste d, the results, and the weight, was admitted into evidence. Jeral Otaru, one of the men a rrested during the raid, testif ied appellant and Rayford ran the drug house. Otaru said he purchased heroin capsules from them; the cost was $3 for one capsule or $5 for two capsules. He also ran errands for appellant and Rayford in exchange for “a caplet or two of heroin.” Otaru said when the police arrived, appellant was “grabbing on his pockets, you know, reaching for his bag.” Appella nt ran to the back and Otaru heard “water splash,” like a toilet flush. In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in the light most favorable to the jury’s verdict to determine whether any rati onal trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard accounts for the factfinde r’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.
State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, when analyzing the sufficiency of the evidence, we “determine whether the ne cessary inferences are reasonable based upon the combined and cumulative force of all the eviden ce when viewed in the light most favorable to the verdict.” Id . Direct and circumstantial evidence are treated equally. Id

.–4– Appellant limits his sufficiency challenges to the proof of the weight of the heroin that he possessed. In his first issue, he argues the evidence failed to estab lish a weight of four grams or more because the chemist improperly included the weight of thirty-five capsules (the ten capsules found in the toilet wate r that dissolved into a jelly- like mass and the twenty-five capsules containing powder) when reaching the tota l controlled substance weight of 4.2 grams. To convict in this case, the State must show the defendant knowingly possessed the controlled substance with intent to deliver. T EX
. H EALTH & S AFETY C ODE A NN
. § 481.112(a). A controlled substance is defined as “a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Pe nalty Groups 1, 1–A, or 2 through 4.” Id . § 481.002(5). A controlled substance includes the aggregate weight of any mixtur e, solution, or other substance containing a controll ed substance. Id . An adulterant or diluta nt means any material that increases the bulk or quantity of a controlled subs tance, regardless of its effect on the chemical activity of the cont rolled substance. Id . § 481.002(49). Heroin is listed in Penalty Group 1. Id

. § 481.102(2). Assuming for purposes of this opinion that appella nt is correct in argui ng the dry capsules themselves should not be included in the total we ight, the evidence does not show they were. The drug analysis test report was admitted into evidence. The report showed that “twenty-five pink/clear capsules cont aining brown material” were used fo r analysis; the “material contained heroin and diphenhydramine[,]” and the “total weight of the mate rial, including adulterants and dilutants, was 2.25 grams.” Thus, the report show s that only the “material” was weighed, not the capsules. The report was signed by Muhlberger , and nothing in her testimony at trial was inconsistent with the report. As for the brown jelly-like material, Muhlberg er testified she did not notice any pieces of capsule or “anything like that” mixed in the materi al. To the extent appe llant suggests the State–5– had to extrapolate out the weight of the “pre-moisturized” capsul es which had dissolved into the brown jelly-like material after appellant attempted to flush the capsules down the toilet, we disagree. Any substance that is added to or mi xed with a controlled substance, regardless of when, how, or why that substanc e was added, may be added to the aggregate weight of the controlled substance as an adulterant or dilutant. Seals v. State , 187 S.W.3d 417, 420 (Tex. Crim. App. 2005). Detective Ortiz testified he removed the ten capsules from the toilet water and placed them in a baggie. At the police stat ion, he noticed the capsules “started changing” and began drying out, changing colors, and getting st uck together. From this evidence the jury could have rationally concluded the capsules dissol ved in the toilet wate r and had become mixed with the powder inside, resulti ng in the jelly-like substance. See Jones v. State , 235 S.W.3d 783, 785–86 (Tex. Crim. App. 2007) (conc luding that when defendant’s accomplice poured liquid methamphetamine into bottle of bleach hoping to destroy the drug during police pursuit, bleach was “added to or mixed with” the controlled subs tance and could be added to aggregate weight); Seals , 187 S.W.3d at 420 (concluding blood found mi xed with methamphetamine in a vial was properly included in aggregate weight as adultera nt or dilutant). We conclude the dissolved capsules became adulterants or dilutants and were properly added to the aggregate weight of the controlled substance. We overrule the first issue. In his second issue, appellant asserts the evidence was insufficient to show the “trafficking weight” of the heroin was at least four grams. Here, he asserts the “indirect evidence” showed the ten capsules and their cont ents, in “pre-moisturized” form, weighed only 0.9 grams. When added to the weight of the cont ents of the twenty-five capsules, 2.25 grams, he asserts the “trafficking weight for the en tire quantity of heroin was 3.15 grams.” It appears appellant is attemp ting to limit the aggregate weight of the drugs to the amount the drugs would have weighed had he not attemp ted to destroy them by flushing them down the–6– toilet. He has not cited a Texas case for his “trafficking weight” argu ment nor do we agree appellant benefits from his attempt to destr oy evidence any more than the defendant whose accomplice attempted to do so by pouri ng the drugs into a bleach bottle. See Jones , 235 S.W.3d at 786. Having previously concluded the dissolved capsules became adulterants or dilutants and were properly added to the aggr egate weight of the controlled substance, we conclude his argument is without merit. Appellant also asserts “the weight of the 25 dry capsules, as reported by the laboratory, was not rationally entitled to any weight, since th e weight of the contents of the dry capsules was not clearly established dur ing the police investigation.” He directs us to State’s Exhibit 49, which shows the ninety-two capsules on a s cale displaying a weight of 13.4 grams, and testimony from Ortiz that the cap sules weighed 10.9 grams. It a ppears appellant is suggesting the inconsistent amounts determined by the police render the lab analysis incredible, although he does not explain how the police scales would a ffect the accuracy of the chemist’s testing equipment. Muhlberger testifie d the lab’s “balances are very specific out to the 4th decimal place of a gram.” Moreover, we note State’s Exhibi t 49 includes the weight of the capsules, their contents, and the plastic bag in which they were contained, while the lab weighed only the material inside the capsules. We overrule the second issue. Finally, although neither party has raised the issue, our review of the record reveals an error in the trial court’s judgment. Specifically, the record reflect s appellant pleaded true to an enhancement paragraph alleging a prior convicti on, and the trial court accepted the plea and found the paragraph true. The judgment, however , does not reflect the co rrect plea or finding. This Court has the authority to correct a judgment of the cour t below to make the record “speak the truth” when we have the n ecessary data and information to do so. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) . This authority is not dependent upon–7– a request by a party nor does it turn on the questi on of whether a party has objected in the trial

court. Id . at 529–30. Accordingly, we modify the judg ment to reflect a plea of true and a finding of true to the first enhancement paragraph. We affirm the trial court’s judgment as modified.

Do Not Publish T EX
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. P. 47 131482F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERICK EUGENE FORD, Appellant
No. 05-13-01482-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1355893-N. Opinion delivered by Justice Francis; Justices Evans and Stod dart participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: To reflect a Plea of True to the 1st Enha ncement Paragraph and a Finding of True to 1st Enhancement Paragraph.
As MODIFIED , the judgment is AFFIRMED

. Judgment entered January 26, 2015.