Affirmed as Modified and Opinion Filed January 26, 2015 

S 

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 possession with intent to deliver four grams or 

more but less than 200 grams of heroin, and the 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 conviction. For reasons set out below, we conclude the issues are 

without merit. On our own motion, 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 where police suspected 

heroin was being sold. On arrival, the officers announced “police” and then heard “a lot of 

running” inside. The front door was barricaded with a cage. 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 
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on the floor; a fourth man, identified as appellant, was coming out of the bathroom. After 

securing the house and taking the men outside, Detective Julio Ortiz went into the bathroom and 

saw what he believed to be about ten heroin capsules floating in the toilet. Ortiz removed the 

capsules and put them in a plastic bag. Police also recovered, among other things, a bottle of 

Dormin, which is used to “cut” heroin, 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 suspected to be drugs. The capsules recovered 

from the toilet and from Rayford tested positive for heroin, and the 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 said 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 grams: 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 appeared to have “dried up.” The material contained heroin and 

diphenhydramine and weighed 2.04 grams, including adulterants and dilutants. She did not see 

any pieces of capsules or “anything like that” in the material. 

She also received a baggie containing ninety-two pink/clear capsules containing a brown 

material in powder form. Muhlberger used twenty-five of the capsules for analysis and took a 

sample of the brown material from each. The material contained heroin and diphenhydramine, 

and the total weight of the material, including adulterants and dilutants, was 2.25 grams. That 

material, combined with the weight of the jelly-like substance, totaled 4.2 grams, so Muhlberger 
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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 tested, the results, and the weight, was admitted into 

evidence. 

Jeral Otaru, one of the men arrested during the raid, testified 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.” Appellant 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 rational 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 factfinder’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 necessary inferences are reasonable based upon the 

combined and cumulative force of all the evidence when viewed in the light most favorable to 

the verdict.” Id. Direct and circumstantial evidence are treated equally. Id. 
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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 establish 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 water that dissolved into a jelly-like mass and the twenty-five 

capsules containing powder) when reaching the total 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. TEX. HEALTH & SAFETY CODE ANN. § 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 Penalty Groups 1, 1–A, or 2 through 4.” Id. § 481.002(5). A 

controlled substance includes the aggregate weight of any mixture, solution, or other substance 

containing a controlled substance. Id. An adulterant or dilutant means any material that 

increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical 

activity of the controlled substance. Id. § 481.002(49). Heroin is listed in Penalty Group 1. Id. 

§ 481.102(2). 

Assuming for purposes of this opinion that appellant is correct in arguing the dry capsules 

themselves should not be included in the total weight, 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 containing brown material” were used for analysis; the “material contained 

heroin and diphenhydramine[,]” and the “total weight of the material, including adulterants and 

dilutants, was 2.25 grams.” Thus, the report shows 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, Muhlberger testified she did not notice any pieces of 

capsule or “anything like that” mixed in the material. To the extent appellant suggests the State 
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had to extrapolate out the weight of the “pre-moisturized” capsules 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 mixed with a controlled substance, regardless of 

when, how, or why that substance 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 station, he noticed the capsules “started changing” 

and began drying out, changing colors, and getting stuck together. From this evidence the jury 

could have rationally concluded the capsules dissolved in the toilet water and had become mixed 

with the powder inside, resulting in the jelly-like substance. See Jones v. State, 235 S.W.3d 783, 

785–86 (Tex. Crim. App. 2007) (concluding 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 substance and could be added to aggregate weight); 

Seals, 187 S.W.3d at 420 (concluding blood found mixed with methamphetamine in a vial was 

properly included in aggregate weight as adulterant 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 contents, in “pre-moisturized” form, weighed only 

0.9 grams. When added to the weight of the contents of the twenty-five capsules, 2.25 grams, he 

asserts the “trafficking weight for the entire quantity of heroin was 3.15 grams.” 

It appears appellant is attempting to limit the aggregate weight of the drugs to the amount 

the drugs would have weighed had he not attempted to destroy them by flushing them down the 
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toilet. He has not cited a Texas case for his “trafficking weight” argument nor do we agree 

appellant benefits from his attempt to destroy evidence any more than the defendant whose 

accomplice attempted to do so by pouring 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 aggregate 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 the weight of the contents of the dry capsules was 

not clearly established during the police investigation.” He directs us to State’s Exhibit 49, 

which shows the ninety-two capsules on a scale displaying a weight of 13.4 grams, and 

testimony from Ortiz that the capsules weighed 10.9 grams. It appears 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 affect the accuracy of the chemist’s testing 

equipment. Muhlberger testified the lab’s “balances are very specific out to the 4th decimal 

place of a gram.” Moreover, we note State’s Exhibit 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 reflects appellant pleaded true to an 

enhancement paragraph alleging a prior conviction, and the trial court accepted the plea and 

found the paragraph true. The judgment, however, does not reflect the correct plea or finding. 

This Court has the authority to correct a judgment of the court below to make the record 

“speak the truth” when we have the necessary 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 
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a request by a party nor does it turn on the question of whether a party has objected in the trial 

court. Id. at 529–30. Accordingly, we modify the judgment 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 

TEX. R. APP. P. 47 

131482F.U05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

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 Stoddart participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows: 

To reflect a Plea of True to the 1st Enhancement Paragraph and a Finding of True 

to 1st Enhancement Paragraph. 

As MODIFIED, the judgment is AFFIRMED. 

Judgment entered January 26, 2015.