1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00339-CR

__________________

JASON BENJAMIN MILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 18-05-05638-CR

__________________________________________________________________

MEMORANDUM OPINION

Appellant Jason Benjamin Miller was indicted for the offense of possession 

of a controlled substance—methamphetamine—in an amount of four grams or more 

but less than 200 grams, a second-degree felony. See Tex. Health & Safety Code 

Ann. § 481.115(d). The indictment included two enhancement paragraphs alleging 

previous convictions for possession of a controlled substance with the intent to 

deliver or manufacture and for possession of methamphetamine. Miller pleaded “not 
2

guilty,” a jury found Miller guilty, found the enhancements true, and assessed 

punishment at imprisonment for thirty-five years. Miller now appeals his conviction, 

raising five issues. We affirm the judgment as reformed.

Evidence at Trial

Testimony of Deputy Willie Mayes

Deputy Willie Mayes, with the Montgomery County Sheriff’s Office, testified 

that he encountered Miller while Mayes was “patrolling” and driving north on 

Highway 249. Mayes noticed that Miller “kind of did a double take and a triple take” 

when Miller saw Mayes, which Mayes took as a sign of nervousness about seeing 

the police. Mayes testified that Miller moved into the left lane in front of a white 

vehicle that had to put on its brakes and make an evasive action to avoid a collision 

with Miller’s vehicle, and Mayes stopped Miller for an unsafe lane change. 

According to Mayes, the way Miller changed lanes was evasive or abrupt, and the 

lane Miller had been driving in was clear, and the other car had to put on its brakes. 

Mayes agreed that the Transportation Code does not specifically define “safely” in 

the context of a lane change. Mayes also agreed that he was speculating as to the 

reason the driver of the white car in the left lane applied the brakes and that he did 

not see the car’s brake lights. Mayes recalled seeing the front of the white car point 
3

downwards, which indicated to Mayes that the driver applied his brakes and which 

Mayes regarded as an evasive action. 

According to Mayes, the first thing Miller said to Mayes after the traffic stop 

was “my bad[,]” which Mayes thought related to the unsafe or illegal lane change. 

Mayes testified that once he had stopped Miller, Miller exhibited “[e]xcessive 

nervousness, either hiding something or putting something away[,]” which aroused 

Mayes’s suspicions: 

He was very nervous. Kind of like -- you know, just moving a lot. You 

know, twitching a little bit. And once the window was rolling down, I 

already knew at this point -- I had to keep my cool at this point because 

as soon as he let the window down, I automatically smelled a strong 

odor of marijuana, as soon as he let the window down.

Mayes further testified that the way Miller acted led Mayes to believe Miller was a 

methamphetamine user. According to Mayes, the smell of marijuana provided a 

reason to have Miller exit the vehicle and either detain Miller or search the vehicle.

Mayes called for backup, and Deputies Carpenter and Mittag responded, and

Deputy Carpenter patted Miller down. Mayes testified that, during the pat-down, 

Carpenter asked Miller if he could pull out what was inside Miller’s pocket, and 

Carpenter pulled out “a square block of crystal-like substance[]” that Mayes knew 

from his training to be methamphetamines. Mayes also testified that the officers 

found in Miller’s vehicle a plastic container with a small amount of marijuana inside 
4

it. In viewing photographs taken of Miller’s vehicle, Mayes identified a torch lighter 

used to heat a spoon for use in injecting drugs; a razor or scalpel that could be used 

for cutting crack, cocaine, or methamphetamines; a syringe; and a pipe with probable 

marijuana residue. Mayes also identified a photo of a block of methamphetamines 

weighing almost twelve grams found in Miller’s pocket, a baggie containing 

additional methamphetamine, and a baggie containing marijuana. In another photo 

exhibit, Mayes identified red baggies used “to sell and distribute.” Mayes agreed that 

these items were seized as evidence by Deputy Carpenter. 

Deputy Mayes agreed that his patrol vehicle had a dash cam video system and 

that State’s Exhibit 2 was a copy of the video of the traffic stop that was made by 

his dash cam, and the video was admitted into evidence and published to the jury. 

As the video was played, the following exchange occurred:

Q. So what action, if any, does the white car take once the Defendant’s 

vehicle comes over into the next lane?

A. They either have to brake or they have to switch lanes themselves.

Q. And what did the white vehicle do in this particular case?

A. They broke -- well, they braked.

Q. Can you describe that braking action for the members of the jury?

A. Sure. I am pretty sure you are pretty familiar, but whenever you 

brake or brake abruptly, the front end of the vehicle normally tends to 

-- I mean, I know like when you-all are driving, you are like don’t slam 
5

too hard, just get off the gas. Because it is obviously when somebody 

brakes or applies the brakes hard, the front end of the vehicle dives 

down when they have to make an abrupt stop or brake.

Q. And would you characterize that action as evasive action?

A. Correct.

Q. And would you believe that action to be unsafe?

A. Yes, sir.

Q. So in terms of your reasonable suspicion for a traffic stop, did you 

believe that there was a Transportation Code violation just committed?

A. Yes, which is switching lanes when unsafe.

Mayes agreed that at the time the traffic infraction took place, the white car was not 

visible on the video. Mayes also agreed that during his work, he sometimes observes 

things that are not “fully captured” by the vehicle dash cam video. 

Testimony of Deputy Dimitri Carpenter

Deputy Dimitri Carpenter, a Deputy with the Montgomery County Sheriff’s 

Office, testified that he assisted Deputy Mayes upon arriving at the traffic stop when 

Mayes called for assistance. Carpenter testified that he could smell “a hint of weed 

in the car[,]” and Carpenter patted Miller down and searched him because of the 

smell of marijuana. Carpenter testified that when he approached the vehicle, he 

observed Miller in the driver’s seat, reaching behind the passenger seat. Upon 

searching Miller, Carpenter found “a rock of methamphetamine[]” in Miller’s 
6

pocket, which Carpenter placed into an evidence locker. According to Carpenter, he 

handed the bag of what he believed to be drugs to Deputy Mittag, who subsequently 

returned the bag to him. Carpenter recalled that Deputies Mayes and Mittag weighed 

the methamphetamine while Carpenter inventoried Miller’s vehicle, and the bag was 

out of Carpenter’s eyesight for a time while he was conducting the inventory and 

while Mayes and Mittag were testing the substance. Carpenter testified that he 

placed the substance in a bag at the scene but did not seal the bag until the officers 

got back to the office. Carpenter agreed that the bag of methamphetamine admitted 

into evidence as State’s Exhibit 28 was later sent to a laboratory for analysis. 

Testimony of Cristina Muko

Cristina Muko, a forensic scientist with the Texas Department of Public 

Safety, testified that she performed testing on the sample that was admitted as State’s 

Exhibit 28. Muko identified State’s Exhibit 28 and described her procedure:

My label not only includes the case number, but it also includes my 

initials, the date I opened it, as well as the item number. And once I am 

finished with my analysis, I then heat seal the bag and place my initials 

and the date that I finished the analysis. 

According to Muko, she completed her analysis on June 19, 2018. Muko testified 

that her analysis determined that the substance was methamphetamine in an amount 

of 11.12 grams. Muko’s lab report was admitted into evidence as State’s Exhibit 29, 

and the report identifies the substance tested as 11.12 grams net weight of a 
7

crystalline substance containing methamphetamine. The report also identifies the 

suspect in the case as Jason Miller with a birthdate of April 9, 1975, an offense date 

of April 28, 2018, and a Montgomery County case number of 18-A-115394. On 

cross-examination, the following exchange occurred:

[Defense counsel]: Okay. So -- and this substance, would you agree 

with me, is it one piece or multiple pieces?

[Muko]: It is in a little bit broken up bits and pieces.

[Defense counsel]: Okay. Because, I mean, it is a crystalline substance, 

correct?

[Muko]: That’s correct.

[Defense counsel]: So is it possible that some of that crystalline 

substance or some of those other pieces are not methamphetamine? Or 

do you know?

[Muko]: I suppose it could be possible that some of it is not.

[Defense counsel]: Because you only test .01 grams of that, correct?

[Muko]: That’s correct.

Muko testified that an evidence envelope initially goes to DPS evidence 

technicians, that she places a label on the envelope when she has completed her 

analysis and then an evidence technician returns it to the agency. According to 

Muko, all of the people who receive the evidence must initial a sticker on the 

envelope. 
8

Miller’s Testimony

Miller testified that he had previously been convicted for possession of a 

controlled substance in 2007, 2010, 2015, and 2017 and convicted of delivery of a 

controlled substance in 2012. Miller also testified that he is a “drug addict[]” and he 

has a problem with methamphetamine. 

When asked about the day he was pulled over, Miller testified that he changed 

lanes because he knew an officer was behind him and Miller was trying to get out of 

the officer’s way. Miller believed he changed lanes safely and stated:

I was making a safe lane change. I put my blinker on and I got over like 

everybody does. . . . I was trying to get out of the cop’s way. He was 

riding my rear. You know what I am saying? I was doing the speed limit 

and he was continuing to get closer to me. So I went ahead and put my 

blinker on and moved out of his way. 

Miller did not notice whether the car he pulled in front of applied its brakes or 

whether the hood dipped down. According to Miller, he sat in his car for ten minutes 

after he was pulled over, and while he was sitting in his car, he smoked a cigarette 

and ate the ice cream he had just bought shortly before he was stopped. Miller 

testified that he did not give his consent to be searched. Miller testified that he works 

at an automobile collision repair shop and he uses the exacto knives found in his 

vehicle for work. According to Miller, the glass pipe that was found in his vehicle 

was a “P bowl[]” and he used it to smoke methamphetamine, and the baggies that 
9

were found in his vehicle were for his ex-wife, who makes gems and jewelry. Miller 

testified “I do drugs[]” but he denied selling drugs. 

Issues

Miller raises five issues on appeal. He contends (1) the trial court erred in 

denying his motion to suppress, (2) the trial court abused its discretion in admitting 

certain evidence because the State had failed to prove up the chain of custody, (3) the 

trial court erred in denying his article 38.23 motion to instruct the jury regarding 

reasonable suspicion for the traffic stop, (4) the trial court erred in denying his 

request to include a lesser-included charge in the jury charge, and (5) the evidence 

was not legally sufficient to support the jury’s finding of “true” to the alleged prior 

convictions used as enhancements. 

Motion to Suppress

Miller’s first issue argues that the trial court erred in denying his motion to 

suppress because Deputy Mayes lacked reasonable suspicion to stop Miller. 

According to Miller, article 38.23 of the Texas Code of Criminal Procedure requires 

that evidence obtained in the search of his vehicle be suppressed because his 

detention and the subsequent search of his vehicle were not supported by reasonable 

suspicion and violated Miller’s rights under the Fourth Amendment and the Texas 

Constitution. See U.S. Const. amend. IV; Tex. Const. art. 1, § 9; Tex. Code Crim. 
10

Proc. Ann. art. 38.23. Miller argues that Deputy Mayes admitted that the only reason 

to believe Miller made an unsafe lane change was because the white vehicle in the 

left lane slowed down, and Miller contends Mayes did not know if the white vehicle 

slowed down when Miller changed lanes, and that Mayes admitted the law does not 

say how many car lengths is considered a safe distance for changing lanes. 

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). 

We review the trial court’s factual findings for an abuse of discretion but review the 

trial court’s application of the law to the facts de novo. Turrubiate v. State, 399 

S.W.3d 147, 150 (Tex. Crim. App. 2013).

At a suppression hearing, the trial court is the sole trier of fact and judge of 

the credibility of the witnesses and the weight to be given their testimony, and a trial 

court may choose to believe or disbelieve all or any part of a witness’s testimony. 

Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. 

App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)); 

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial 

court’s ruling, the appellate court does not engage in its own factual review. St. 

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total 

deference to the trial court’s determination of historical facts, “especially if those are 
11

based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d 

43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s 

conclusions with respect to mixed questions of law and fact that turn on credibility 

or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We 

review purely legal questions de novo as well as mixed questions of law and fact 

that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404, 

410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48. 

When there are no findings of fact and none were requested, an appellate court 

must presume that the trial court implicitly resolved all issues of historical fact and 

witness credibility in the light most favorable to its ultimate ruling. State v. Elias, 

339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d at 857). But

when the trial court makes explicit fact findings, we determine whether the evidence, 

when viewed in the light most favorable to the trial court’s ruling, supports those 

findings. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We 

will uphold the trial court’s ruling if it is reasonably supported by the record and is 

correct on any theory of law applicable to the case. State v. Story, 445 S.W.3d 729, 

732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. 

App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
12

Traffic stops require an officer to have a reasonable suspicion that the person 

detained is, has been, or will soon engage in criminal activity. Jaganathan v. State, 

479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Crockett v. State, 803 S.W.2d 308, 

311 (Tex. Crim. App. 1991). The standard is whether, based on facts articulated by 

the officer and the totality of the circumstances, an objectively reasonable officer 

would have developed suspicion that an offense was in progress or had occurred. 

Id.; Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d) 

(citing Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)). We review 

de novo “whether the totality of [the] circumstances is sufficient to support an 

officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d at 48-49.

An unsafe lane change is a traffic violation. See Tex. Transp. Code Ann. 

§ 545.060(a) (“An operator on a roadway divided into two or more clearly marked 

lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; 

and (2) may not move from the lane unless that movement can be made safely.”); 

Dunn v. State, 478 S.W.3d 736, 742 (Tex. App.—Fort Worth 2015, pet. ref’d); Tyler 

v. State, 161 S.W.3d 745, 748 (Tex. App.—Fort Worth 2005, no pet.). 

In this case, Deputy Mayes testified during the hearing on the motion to 

suppress that when Miller changed lanes, the white car behind Miller in the left lane 

slowed down and applied the brakes to avoid a collision. Mayes testified that he saw 
13

the front of the white vehicle point downwards when it braked, although Mayes 

admitted he did not see the brake lights. According to Mayes, if the vehicle in the 

left lane had to brake, then Miller’s lane change into the left-hand lane was unsafe. 

The trial court denied the motion to suppress. After trial, Miller filed a request 

for findings of fact and conclusions of law, but none were entered. We abated the 

case and remanded it to the trial court for entry of findings of fact and conclusions 

of law. See Byram v. State, 510 S.W.3d 918, 921 n.3 (Tex. Crim. App. 2017) (“On 

a motion to suppress evidence, a trial court must state its findings of fact and 

conclusions of law upon the losing party’s request. State v. Cullen, 195 S.W.3d 696, 

699 (Tex. Crim. App. 2006).”). We received a supplemental clerk’s record with the 

trial court’s findings. The trial court entered the following findings of fact:

1. On July 9, 2018, the 221st District Court held a trial in the State of 

Texas v. Jason Benjamin Miller in Cause Number 18-05-05638.

2. Prior to trial, Applicant filed a Motion to Suppress and during the 

trial, evidence was heard on whether there was reasonable 

suspicion to stop Applicant’s vehicle.

3. Outside the presence of the jury, the trial court heard testimony 

from Deputy Mayes, both cross-examination and direct 

examination, received exhibits, reviewed an in-car video and heard 

arguments of counsel.

4. After the hearing, the Court found that reasonable suspicion 

existed for the stop and that the subsequent investigation was 

proper.

5. Applicant, Jason Benjamin Miller was stopped on April 28, 2018 

at about 6:59 p.m.

6. The speed limit was approximately 55 mph and Applicant’s 

vehicle was estimated to be going 60 mph per Deputy Mayes.
14

7. Applicant was driving North on Hwy. 249 along with Deputy 

Mayes.

8. Another vehicle was driving in an adjacent lane near both Deputy 

Mayes’ vehicle and Applicant’s vehicle.

9. The other vehicle took evasive action when Applicant’s vehicle 

changed lanes. Deputy Mayes testified that the other vehicle is not 

as visible on the recorded in-car video due to its location and since 

the camera is positioned to look forward.

10. Applicant was pulled over for making an unsafe lane change. 

Deputy Mayes testified that he told Applicant why he stopped him.

11. Applicant stated he made the unsafe lane change due to the officer 

being behind him and that law enforcement officers made him 

nervous. 

12. Applicant made an admission to making an unsafe lane change and 

stated, “My bad,” when asked about his driving.

13. Deputy Mayes testified that he smelled the odor of marijuana 

emanating from Applicant’s vehicle during his interaction with 

Applicant.

14. Deputy Mayes testified he observed Applicant acting fidgety and 

twitching and that based on his experience and training Applicant 

appeared to be under the influence of some type of drug.

15. Deputy Mayes called for assistance from another officer for officer 

safety.

16. Deputy Mayes made the decision that it was not safe to allow 

Applicant to drive while under the influence of drugs. 

17. The Court found that Deputy Mayes seemed to be credible and had 

no other controverting evidence.

18. After the hearing, the Court held that reasonable suspicion existed 

to make a traffic stop and conduct a further investigation after the 

deputy smelled marijuana.

In supplemental briefing, Appellant argues that although Mayes testified at 

trial that Miller was speeding, Mayes did not testify during the suppression hearing 

that Miller was speeding. Appellant further argues that “Appellant never said that he 

made an ‘unsafe lane change[,]’” so that the trial court erred in finding that Appellant 
15

admitted he made an unsafe lane change. The record of the suppression hearing 

reflects that Mayes testified that he told Appellant he had pulled him over for an 

unsafe lane change and Mayes testified that Appellant “basically admitted to making 

the unsafe lane change.”

The trial court issued a finding of fact that Deputy Mayes testified that Miller 

made an unsafe lane change, and the trial court found Mayes to be credible. Based 

on the totality of the circumstances and deferring to the trial court’s credibility 

determination in its findings of facts, we conclude that the evidence contains 

sufficient specific articulable facts, when combined with rational inferences from 

those facts, from which the trial court could have reasonably concluded that Deputy 

Mayes’s initial detention of Miller was objectively reasonable, that Mayes had a 

good-faith suspicion that Miller had engaged in a traffic violation, and that probable 

cause existed to support the traffic stop. See Crain, 315 S.W.3d at 48, 52. We 

therefore conclude that the trial court did not err in overruling the motion to suppress. 

We overrule Miller’s first issue.

Article 38.23 Jury Instruction

Miller’s third issue argues that the trial court erred in denying Miller’s motion 

to instruct the jury that, if they found that the Appellant did not violate the law, then 

they would not be able to consider the rest of the evidence. Miller argues that his 
16

request for an article 38.23 jury instruction was based on “the fact that the evidence 

presented by the State showed that Deputy Mayes did not have reasonable suspicion” 

for the traffic stop of Miller. According to Miller, because the trial court erred in 

determining that the State’s case-in-chief presented no disputed fact evidence, he 

was “forced” to give up his right not to testify in order to affirmatively contest the 

State’s evidence. Miller argues that he testified concerning prior convictions, and 

that evidence of these convictions would not otherwise have come into evidence. 

The result, according to Miller, is that the jury had to choose whether to believe 

Deputy Mayes or a “convicted felon,” which constitutes reversible harm. 

The day trial began, Miller requested a jury instruction pursuant to article 

38.23 that stated

. . . you may consider evidence obtained by Deputy Willie Mayes 

and/or Deputy Dimitri Carpenter as the result of his detention and arrest 

of the defendant if you first find beyond a reasonable doubt that the 

defendant’s warrantless detention and arrest were permitted by the laws 

and Constitutions of this State and the United States; but if you do not 

so find beyond a reasonable doubt, then you will disregard any such 

evidence and not consider it for any purpose. 

At the conclusion of the State’s case-in-chief, Miller asked the trial court to rule on 

his requested jury instruction regarding reasonable suspicion for the stop and 

explained that his decision whether to testify depended on the trial court’s ruling. 

The trial court denied the requested instruction, indicating that there was no 
17

affirmatively-contested factual issue for the jury to resolve. The trial court also 

stated:

I do think that the officer appeared to be credible. And one of the 

reasons why I think that is so, is during your cross-examination, he 

could have been very adamant. But he said -- he gave it to you and said, 

look, I didn’t see his brake lights, I saw the car go down, I was beside 

him, I wasn’t behind him. So it is not like he appeared to be bolstering 

his testimony. 

. . . .

. . . And so I have to go on what the witness says if I believe the 

witness and do I think that you have done enough to reach that 

affirmative defense requirement. And I don’t think at this time that you 

have. So I am going to deny your motion.

The court stated that the defense could establish a disputed fact issue through the 

testimony of a bystander witness or cross-examination. The trial court also explained 

that it did not believe the defense had met the requirement of an affirmative defense 

at that time, but the court told the defense it could reurge its motion after presenting 

its case. Miller subsequently testified that he believed he changed lanes safely. After 

Miller testified, he renewed his motion, and the trial court included the requested 

instruction in the jury charge.

Article 38.23 provides that evidence obtained in violation of the laws or 

Constitution of the United States or Texas may not be admitted in a criminal case.

See Tex. Code Crim. Proc. Ann. art. 38.23(a). A jury instruction should be submitted 

if a fact issue arises about whether such a violation occurred. See id.; Hamal v. State, 
18

390 S.W.3d 302, 306 (Tex. Crim. App. 2012). The instruction requires the jury to 

disregard evidence that it finds was obtained in violation of the Constitution or laws 

of the United States or Texas. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 

S.W.3d at 306. Three predicates are required for a defendant to be entitled to an 

article 38.23 jury instruction: “(1) the evidence heard by the jury must raise an issue

of fact, (2) the evidence on that fact must be affirmatively contested, and (3) the 

contested factual issue must be material to the lawfulness of the challenged 

conduct.” Hamal, 390 S.W.3d at 306 (citing Spence v. State, 325 S.W.3d 646, 653-

54 (Tex. Crim. App. 2010); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. 

App. 2008)); see also Hernandez v. State, 533 S.W.3d 472, 482 (Tex. App.—Corpus 

Christi-Edinburg 2017, pet. ref’d).

A jury instruction is proper “only if there is a contested issue of fact about the 

obtaining of the evidence. . . . There is no issue for the jury when the question is one 

of law only.” Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000) (citing 

Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996)). The Court of Criminal 

Appeals has explained,

[i]f there is no disputed factual issue, the legality of the conduct is 

determined by the trial judge alone, as a question of law. And if other 

facts, not in dispute, are sufficient to support the lawfulness of the 

challenged conduct, then the disputed fact issue is not submitted to the 

jury because it is not material to the ultimate admissibility of the 
19

evidence. The disputed fact must be an essential one in deciding the 

lawfulness of the challenged conduct.

Madden v. State, 242 S.W.3d 504, 510-11 (Tex. Crim. App. 2007) (internal citations 

omitted). The reasonableness of an officer’s suspicion that a traffic violation 

occurred is a legal issue to be resolved by the court, and not a fact issue. See 

Robinson v. State, 377 S.W.3d 712, 720-22 (Tex. Crim. App. 2012); Madden, 242 

S.W.3d at 513.

According to Miller, in its case-in-chief, the State did not present evidence 

sufficient to support reasonable suspicion because Mayes admitted the law does not 

define an unsafe lane change as one where a driver is required to brake, that both his 

vehicle and the white car were about the same distance from Miller’s vehicle, and 

that he did not know why the driver of the white car applied the brakes. On the record 

before us, we cannot say the trial court erred in concluding that the State’s case-inchief included no affirmative evidence that put the existence of a material fact into 

question and in denying the request for an article 38.23 jury instruction. See Tex. 

Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306; Madden, 242 

S.W.3d at 513. Because we find no error in denying the instruction, we need not 

examine harm. See Tex. R. App. P. 47.1. We overrule Miller’s third issue.
20

Chain of Custody

In his second issue, Miller argues that the trial court abused its discretion in 

admitting “State exhibits #26 (a pack of red baggies), exhibit #27 (a pipe), exhibit 

#25 (marijuana that was allegedly on Appellant’s possession) and exhibit #28 

(methamphetamines that were allegedly on Appellant’s possession).” According to 

Miller, these exhibits were admitted through the testimony of Deputy Mayes and 

Mayes did not seize the evidence, tag and number the evidence, or log the items into 

evidence. Miller also argues that the analyst who testified about the evidence did not 

receive the evidence directly from law enforcement but from another technician. 

Miller argues that the evidence was inadmissible because the State failed to prove a 

chain of custody, that admission of the evidence prejudiced him, and that a limiting 

instruction would not have been sufficient to prevent harm. 

An appellate court reviews a trial court’s ruling on the admission of evidence 

for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 

2019) (citing Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); Powell 

v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). The trial court abuses its 

discretion when it acts without reference to any guiding rules and principles or acts 

arbitrarily or unreasonably. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 

(Tex. Crim. App. 1990)). 
21

Even if the trial court erred in overruling Miller’s objections, we will not 

reverse the judgment if the error was harmless. See Tex. R. App. P. 44.2. We will 

disregard non-constitutional error that does not affect a criminal defendant’s 

substantial rights. See Tex. R. App. P. 44.2(b). “A substantial right is affected when 

the error had a substantial and injurious effect or influence in determining the jury’s 

verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In our 

determination of whether error adversely affected the jury’s decision, we consider 

everything in the record, including testimony, physical evidence, jury instructions, 

the State’s theories and any defensive theories, closing arguments, and voir dire. Id.

Circumstantial evidence may be sufficient to prove the chain of custody. See 

Cain v. State, 501 S.W.3d 172, 175 (Tex. App.—Texarkana 2016, no pet.); Watson 

v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref’d). “Without 

evidence of tampering, most questions concerning care and custody of a substance 

go to the weight attached, not the admissibility, of the evidence.” Lagrone v. State, 

942 S.W.2d 602, 617 (Tex. Crim. App. 1997); see also Martinez v. State, 186 S.W.3d 

59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Gallegos v. State, 776 

S.W.2d 312, 315 (Tex. App.—Houston [1st Dist.] 1989, no pet.). When the State 

shows the beginning and the end of a chain of custody, any intermediate gaps go to 

the weight rather than the admissibility of the evidence, particularly if the chain of 
22

custody ends at a laboratory. See Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d 

at 315-16.

Deputy Carpenter testified at trial he found “a rock of methamphetamine[]” 

in Miller’s pocket, which Carpenter placed into an evidence locker. Carpenter also 

recalled that he inventoried Miller’s vehicle. Carpenter also agreed that the bag of 

methamphetamine admitted into evidence was the same one he retrieved from Miller 

and was later sent to a lab. Deputy Mayes agreed that the objected-to items of 

evidence were seized by Deputy Carpenter. Cristina Muko, who analyzed the drugs 

seized, testified that she received the bagged evidence from an evidence technician, 

who also returned the evidence to the law enforcement agency that sent it.

According to Miller, the evidence failed to prove “the beginning and end of a 

chain of custody” as required by Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—

San Antonio 2006, pet. ref’d). However, the record includes no evidence of 

tampering, and any intermediate gaps between the initial seizure by law enforcement 

and analysis of the substance in the laboratory would go to the weight of the evidence 

and not its admissibility. See Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d at 

315-16. Therefore, the trial court did not err in overruling Miller’s objection about 

the chain of custody. Because we find no error in the admission of this evidence, we 

need not consider whether a limiting instruction would have prevented harm or 
23

whether prejudice occurred. See Tex. R. App. P. 47.1. We overrule Miller’s second 

issue.

Lesser-Included Offense Instruction

Miller’s fourth issue argues that the trial court erred in denying his request for 

an instruction for the lesser-included offense of possession of a controlled substance 

less than one gram. Miller argues that Muko only tested .01 grams out of the total 

11.12 of the substance submitted for testing, and that the substance was broken into 

pieces. Miller further argues that Muko admitted it was possible that other pieces of 

the substance were not methamphetamine. According to Miller, a rational juror 

could conclude that Miller possessed less methamphetamine than Deputy Mayes 

testified was in the plastic bags seized. 

A two-step test determines whether a lesser-included offense instruction 

should be given to the jury. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 

2016); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first step 

requires the trial court to determine “whether the requested instruction pertains to an 

offense that is a lesser-included offense of the charged offense, which is a matter of 

law.” Bullock, 509 S.W.3d at 924. Where the requested offense is established by 

proof of the same or less than all the facts required to establish the offense charged, 

the first step is satisfied. See id.; see also Tex. Code Crim. Proc. Ann. art. 37.09.
24

“The second step in the analysis asks whether there is evidence in the record 

that supports giving the instruction to the jury.” Bullock, 509 S.W.3d at 924-25. 

Under this step, “a defendant is entitled to an instruction on a lesser-included offense 

when there is some evidence in the record that would permit a jury to rationally find 

that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Id.

at 925. “The evidence must establish that the lesser-included offense is a valid, 

rational alternative to the charged offense.” Id. This step requires “examining all the 

evidence admitted at trial, not just the evidence presented by the defendant.” Id. A 

defendant is entitled to the instruction on anything more than a scintilla of evidence, 

but “it is not enough that the jury may disbelieve crucial evidence pertaining to the 

greater offense, but rather there must be some evidence directly germane to the 

lesser-included offense for the finder of fact to consider before an instruction on a 

lesser-included offense is warranted.” Id. When reviewing the trial court’s ruling, 

we cannot consider “‘the credibility of the evidence and whether it conflicts with 

other evidence or is controverted.’” Id. (quoting Goad v. State, 354 S.W.3d 443, 446-

47 (Tex. Crim. App. 2011)). Accordingly, “‘the standard may be satisfied if some 

evidence refutes or negates other evidence establishing the greater offense or if the 

evidence presented is subject to different interpretations.’” Id. (quoting Sweed v. 

State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)).
25

It is not sufficient that the evidence merely raises the possibility of the lesser 

offense; to be entitled to an instruction on a lesser-included offense, the evidence 

must establish the lesser offense as a valid rational alternative to the charged offense. 

See Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000); see also 

Creel v. State, 710 S.W.2d 120, 133 (Tex. App.—San Antonio 1986) (holding trial 

court did not err in denying lesser-included offense charge where inferences and 

conjectures appellant categorized as “some evidence” amounted to nothing more 

than “a mere surmise or suspicion of the existence of the fact sought to be 

established”) (quoting Joske v. Irvine, 91 Tex. 574, 582 (1898).

Miller argues that a lesser-included offense instruction was warranted because 

Muko did not test all of the substance seized and she admitted it was possible that 

untested pieces were not methamphetamine. In this case, the second part of the 

Bullock test is not met. See Bullock, 509 S.W.3d at 924-25. The term “controlled 

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

substance containing a controlled substance.” See Tex. Health & Safety Code Ann. 

§ 481.002(5); see also Melton v. State, 120 S.W.3d 339, 343-44 (Tex. Crim. App. 

2003). The State is not required to test every rock to determine whether it contains 

methamphetamine. See Melton, 120 S.W.3d at 344. Muko testified that the weight 

of the crystalline substance she received was 11.12 grams. Her lab report states that 
26

the net weight of the methamphetamine in evidence was 11.12 grams. There is no 

evidence the aggregate weight of the methamphetamine seized was less than 11.12 

grams and consequently no evidence that would permit a jury to rationally find that, 

if Miller is guilty, he is guilty of possession of a smaller quantity of 

methamphetamine. See Davis v. State, No. 09-03-521-CR, 2005 Tex. App. LEXIS 

6349, at **2-3 (Tex. App.—Beaumont Aug. 10, 2005, pet. ref’d) (mem. op., not 

designated for publication). The trial court did not err in refusing to instruct the jury 

on the lesser-included offense. Because we find no error, we need not consider harm. 

See Tex. R. App. P. 47.1. We overrule Miller’s fourth issue.

Prior Convictions as Enhancements

Miller’s final issue argues that the jury erred in finding the enhancement 

paragraphs true because the State failed to prove that the judgments admitted into 

evidence were final and that no appeal was pending. According to Miller, without 

evidence of finality, the jury’s finding that the enhancements were true was mere 

speculation and not sufficient for a finding beyond reasonable doubt. 

“Once the State introduces [] prima facie evidence of a final conviction, the 

defense has the burden of proving that the conviction was not final.” Johnson v.

State, 583 S.W.2d 399, 403 (Tex. Crim. App. 1979) (citing Ashley v. State, 527 

S.W.2d 302 (Tex. Crim. App. 1975)). If a judgment of conviction has been set aside, 
27

vacated, or appealed, the burden is on the defendant to offer such evidence. See Jones 

v. State, 77 S.W.3d 819, 822-23 (Tex. Crim. App. 2002). If a defendant does not 

offer such evidence, then the State’s prima facie proof is legally sufficient to prove 

a prior final conviction used as an enhancement. See id.

The indictment against Miller included two enhancement paragraphs—one 

alleging that he had been convicted in October 2012 of possession of a controlled 

substance with intent to deliver or manufacture in cause number 12-04-03986-CR, 

and another alleging that he had been convicted in June 2010 of possession of 

methamphetamine in cause number 1254503. The State offered into evidence 

certified copies of two judgments of conviction. State’s Exhibit 34 was a Judgment 

of Conviction in trial cause number 12-04-03986-CR for possession of a controlled 

substance with intent to deliver or manufacture, entered October 11, 2012. State’s 

Exhibit 36 was a Judgment of Conviction in trial cause number 1254503 for 

possession of methamphetamine, entered June 22, 2010. Both judgments reflect that 

Miller pleaded “guilty” to the offense charged. In addition, the State reoffered 

evidence from the guilt-or-innocence phase of trial during the punishment phase. 

During the guilt-or-innocence phase, Miller agreed that he was convicted of 

possession of a controlled substance in June 2010, and that in October 2012, he was 

convicted of delivery of a controlled substance.
28

On this record, the State provided prima facie evidence of prior final 

convictions, and Miller provided no evidence that the convictions were not final. 

Accordingly, the State’s evidence was legally sufficient to prove the prior 

convictions used as enhancements. See Jones, 77 S.W.3d at 822-23; Johnson, 583 

S.W.2d at 403. We overrule Miller’s fifth issue.

Reformation of Judgment

The written judgment of conviction in this case contains non-reversible 

clerical error. The judgment of conviction states that the “Plea to Enhancement 

Paragraphs[]” is “True[.]” However, Miller pleaded “not true” to the enhancements. 

This Court has the authority to modify the trial court’s judgment to correct clerical 

errors. See Tex. R. App. P. 43.2(b) (providing that the court of appeals may “modify 

the trial court’s judgment and affirm it as modified”); Bigley v. State, 865 S.W.2d 

26, 27-28 (Tex. Crim. App. 1993) (holding that the court of appeals has the power 

to reform judgments to correct clerical errors); Torres v. State, 391 S.W.3d 179, 185 

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (modifying judgment to correct

defendant’s plea allegations in enhancement paragraphs). Accordingly, we modify 

the judgment to reflect that the “Plea to Enhancement Paragraphs[]” is “Not True[.]”
29

Having overruled all Miller’s issues, we affirm the judgment as reformed.

AFFIRMED AS REFORMED.

_________________________

 LEANNE JOHNSON

Justice

Submitted on November 19, 2019

Opinion Delivered March 4, 2020

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.