Moore v. State, 821 S.W.2d 429 (Tex. App. 1991). · Go Syfert
Moore v. State, 821 S.W.2d 429 (Tex. App. 1991). Cases Citing This Book View Copy Cite
35 citation events (22 in the last 25 years) across 2 distinct courts.
Strongest positive: Paselk, Ex Parte Carol (tex, 2015-01-30)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 27 distinct citers.
discussed Cited as authority (rule) Paselk, Ex Parte Carol
Tex. · 2015 · confidence medium
Co., 260 SW 2d 605 - Tex: Court of Civil Appeals, 4th Dist. 1953 Moore v. State, 821 S.W2d 429, 431 (Tex.App.—Waco 1991, no pet); Petition For Discretionary Review page 4 of29 pages Morrow v. Corbin, 122 Tex. 553 , 62 S.W.2d 641 (1933); Polk v. State, 738 S.W.2d 274, 276 (Tex.Cr.
discussed Cited as authority (rule) Paselk, Ex Parte Carol
Tex. App. · 2015 · confidence medium
Ex parte Vasquez, 122 Tex.Cr.R. 475 , 56 S.W.2d 190 (1933) Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App. 1980) Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App. 1982, no writ) Glenn v. Dallas County Bois D'Arc Island Levee Dist., 282 S.W. 339 (Tex.Civ.App.1926) Granger v. Folk, 931 SW 2d 390 , Tex: Court ofAppeals, 9th Dist. (1996) IndustrialFoundation of The South v. Texas IndustrialAccident Board, 540, S.W.2d 668, 682 (Tex. 1976) Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993) Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet); Petition For Discretionary Review page 3 of27 p…
cited Cited as authority (rule) Charles Ablanedo v. State
Tex. App. · 2005 · confidence medium
Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.).
cited Cited as authority (rule) Charles Ablanedo v. State
Tex. App. · 2005 · confidence medium
Moore v. State , 821 S.W.2d 429, 431 (Tex. App.--Waco 1991, no pet.).
discussed Cited as authority (rule) Reed v. State (2×)
Tex. App. · 2005 · confidence medium
Relying on Moore v. State, appellant argues that the “breach” in the chain of custody here was “neither minor nor theoretical.” 821 S.W.2d 429, 431 (Tex.App.-Waco 1991, no pet.). 6 Appellant emphasizes that when Officer Terry Hughes delivered the box containing the bottle of codeine to the DPS lab, she did not remember to whom she gave the box, she did not personally give it to Minh Nguyen, and she did not see what became of the box after she gave it to the lab employee.
discussed Cited as authority (rule) Reed, James Andrew v. State
Tex. App. · 2005 · confidence medium
Relying on Moore v. State , appellant argues that the A breach @ in the chain of custody here was A neither minor nor theoretical. @ 821 S.W.2d 429, 431 (Tex. App. C Waco 1991, no pet.). [6] Appellant emphasizes that when Officer Terry Hughes delivered the box containing the bottle of codeine to the DPS lab, she did not remember to whom she gave the box, she did not personally give it to Minh Nguyen, and she did not see what became of the box after she gave it to the lab employee.
cited Cited as authority (rule) Jack Warren Davis v. State
Tex. App. · 2003 · confidence medium
App. 1971); Moore v. State , 821 S.W.2d 429, 431 (Tex. App.--Waco 1991, no pet.).
cited Cited as authority (rule) Jack Warren Davis v. State
Tex. App. · 2003 · confidence medium
App. 1971); Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.).
discussed Cited as authority (rule) Terry Wayne Phillips v. State
Tex. App. · 2003 · confidence medium
This was the effect of the holding in Ballard , where the Waco court held that, "[a] chain of custody must be established 'when items not having distinctive characteristics [have] not been marked with distinctive markings by the sponsoring witness, . . . .'" Ballard v. State , 23 S.W.3d 178, 183 (Tex. App.-Waco 2000, no pet.), quoting Moore v. State , 821 S.W.2d 429, 431 (Tex. App.-Waco 1991, no pet.).
cited Cited as authority (rule) in the Matter of S.D.C.
Tex. App. · 2003 · confidence medium
Id. ; Murray v. State , 864 S.W.2d 111, 116 (Tex. App.--Texarkana 1993, pet. ref'd); Moore v. State , 821 S.W.2d 429, 431 (Tex. App.--Waco 1991, no pet.).
cited Cited as authority (rule) in the Matter of S.D.C.
Tex. App. · 2003 · confidence medium
Id .; Murray v. State , 864 S.W.2d 111, 116 (Tex. App.—Texarkana 1993, pet. ref’d); Moore v. State , 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.).
cited Cited as authority (rule) Gill v. State
Tex. App. · 2001 · confidence medium
Ballard v. State, 23 S.W.3d 178, 183 (Tex.App.—Waco 2000, no pet.) (quoting Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet.)).
cited Cited as authority (rule) John Slaughter v. State
Tex. App. · 2001 · confidence medium
Porter, 969 S.W.2d at 66 ; see also Avila v. State, 18 S.W. 3d 736, 739 (Tex. San Antonio 2000, no pet.); Moore v. State, 821 S.W.2d 429, 431 (Tex. App.— App.— Waco 1991, no pet.).
cited Cited as authority (rule) John Slaughter v. State
Tex. App. · 2001 · confidence medium
Porter , 969 S.W.2d at 66 ; see also Avila v. State , 18 S.W.3d 736, 739 (Tex. App.--San Antonio 2000, no pet.); Moore v. State , 821 S.W.2d 429, 431 (Tex. App.--Waco 1991, no pet.).
discussed Cited as authority (rule) Ballard v. State
Tex. App. · 2000 · confidence medium
Moore v. State, 821 S.W.2d 429, 481 (Tex. App. — Waco 1991, no pet.) (quoted in 2 Steven Goode et al„ Texas PRACTICE: Guide to the Texas Rules of Evidence: Civil and CRIMINAL § 901.3 n. 2 (2d ed.1993)).
cited Cited as authority (rule) Kingsbury v. State
Tex. App. · 2000 · confidence medium
Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet.).
discussed Cited as authority (rule) Raney v. State
Tex. App. · 1998 · confidence medium
To adequately establish a chain of custody for such evidence, the State must offer sufficient proof to connect the evidence to the defendant and to the offense with which he is charged, “evidence having that degree of security and integrity to justify its admission.” Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet.); Tex. R.CRIM.Evid. 901(a).
cited Cited as authority (rule) Cuba v. State
Tex. App. · 1995 · confidence medium
Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet.); see also Stone v. State, 794 S.W.2d 868, 869 (Tex.App.—El Paso 1990, no pet.).
discussed Cited as authority (rule) Pena v. State
Tex. App. · 1993 · confidence medium
Act of May 30, 1977, 65th Leg., R.S., ch. 347, § 1, 1977 Tex.Gen.Laws 925, 926, amended by Act of May 25, 1991, 72nd Leg., R.S., ch. 541, § 1, 1991 Tex.Gen.Laws 1876, 1876-77 (current version at Tex.Code Crim.Proc.Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.1993)). [12] Ex parte Patterson, 740 S.W.2d 766, 775 (Tex. Crim.App.1987); Mitchell v. State, 821 S.W.2d 420, 423-24 (Tex.App.—Austin 1991, pet. ref'd). [13] Ex Parte Beck, 769 S.W.2d 525, 526 (Tex. Crim.App.1989). [14] See id. at 526-27 . [15] See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim.App.1986). [16] DeLeon v. State, 758 S.W.2d 6…
cited Cited as authority (rule) Peña v. State
Tex. App. · 1993 · confidence medium
Moore v. State, 821 S.W.2d 429, 431 (Tex. App. —Waco 1991, no pet.). .
discussed Cited as authority (rule) Garner v. State
Tex. App. · 1993 · confidence medium
At least two courts have construed the Rules to require the State to prove the evidence is what the State says by evidence “having that degree of security and integrity to justify its admission.” Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet.); Stone v. State, 794 S.W.2d 868, 870 (Tex.App.—El Paso 1990, no pet.).
cited Cited "see" James Chambers v. State
Tex. App. · 2002 · signal: see · confidence high
See Moore v. State, 821 S.W.2d 429, 431 (Tex. App.-Waco 1991, no pet.).
cited Cited "see" Michael West v. State of Texas
Tex. App. · 2002 · signal: see · confidence high
See Moore v. State , 821 S.W.2d 429, 431 (Tex.App.--Waco 1991, no pet.).
cited Cited "see" Michael West v. State of Texas
Tex. App. · 2002 · signal: see · confidence high
See Moore v. State , 821 S.W.2d 429, 431 (Tex.App.--Waco 1991, no pet.).
cited Cited "see" Michael West v. State of Texas
Tex. App. · 2002 · signal: see · confidence high
See Moore v. State, 821 S.W.2d 429, 431 (Tex.App.--Waco 1991, no pet.).
cited Cited "see" Allen v. State
Tex. App. · 1997 · signal: see · confidence high
See Moore v. State, 821 S.W.2d 429, 431 (Tex.App.-Waco 1991, no pet.).
discussed Cited "see" Davis v. State (2×)
Tex. App. · 1996 · signal: see · confidence high
See Moore v. State, 821 S.W.2d 429, 431 (Tex.App. — Waco 1991, no pet.).
I.J. MOORE, Jr., Appellant,
v.
the STATE of Texas, Appellee
10-89-055-CR.
Court of Appeals of Texas.
Dec 18, 1991.
821 S.W.2d 429
Kenneth E. Sanek, Irving, for appellant., Mary Lou Shipley, County Atty., Wax-ahachie, for appellee.
Thomas, Cummings, Vance.
Cited by 33 opinions  |  Published

OPINION

VANCE, Justice.

Appellant was convicted by a jury of the offense of delivery of less than twenty-eight grams of a controlled substance, cocaine, and assessed fifty years in prison. See Tex. Health & Safety Code Ann. § 481.-112 (Vernon 1991). In three points, he complains that the court erred in admitting exhibit number one, a small plastic bag containing the controlled substance inside a larger plastic bag, and exhibit number two,[*430] the mailing envelope used to transmit exhibit one to the laboratory for testing of the contents. He bases all points on the assertion that the State failed to prove the chain of custody from the informant who purchased the cocaine from Appellant to the chemist who tested it. We will overrule all points and affirm.

The informant who purchased the cocaine testified that: he worked undercover for the Waxahachie Police Department; he approached a group of men including Appellant and asked where he could buy drugs; he gave Appellant twenty dollars and Appellant handed him a small bag “that had rocks in it;” he kept it in his hand and returned to the car where Officer Pothen was waiting; he handed the bag and contents to the officer; and he did not write anything on the bag. He further testified that exhibit one included the bag and contents which he purchased from Appellant.

Officer Pothen testified that: the informant was searched prior to the drug buy and that he had nothing on his person but a wallet; the informant carried a transmitter which allowed the officers to listen to the entire transaction; the informant was in the officer’s view at all times before, during, and after the purchase from Appellant; he watched the informant approach Appellant, heard their conversation, saw the exchange, and watched the informant return to the car where the officers waited; the informant handed him the smaller bag containing the substance upon returning to the car; he placed the smaller bag inside the larger bag, initialed the larger one, dated it, and handed it to Detective Pascual; and he did not alter the contents in any way. He also testified that exhibit one included the bag and contents which he received from the informant.

Detective Pascual testified that: he did not take the contents out of the smaller plastic bag; he took exhibit one to the police department and placed it in a desk used to store evidence; he had the only key to the desk; the exhibit was under his exclusive control and possession for approximately one week; and he then gave it to Detective Howard. Detective Pascual’s testimony indicates that the informant initialed the smaller bag, that Pascual placed the smaller bag inside the larger bag, and that Pothen initialed the larger bag.

Detective Howard testified that Detective Pascual handed him exhibit one for submission to a laboratory for analysis. He placed exhibit one and a lab submission form in a mailing envelope (exhibit two), addressed it to the Texas Department of Public Safety Chemistry Lab in Garland, and mailed it by certified mail at -the post office.

Kent Evans, a chemist employed by the DPS laboratory in Garland, testified that he received exhibit two, removed exhibit one, assigned a laboratory case number, and analyzed the substance. Exhibit one contained 0.12 grams of cocaine.

Appellant bases his contentions on conflicts in the testimony. The informant testified that he did not initial the smaller bag; Detective Pascual testified that the informant did initial it. Officer Pothen and Detective Pascual each testified that he put the smaller bag inside the larger one. The record is somewhat confusing about exactly when Detective Pascual placed his initials on the larger envelope. Thus, Appellant contends that there was commingling of the bag of cocaine purchased from Appellant with other bags of cocaine purchased by the informant that same night and that there was insufficient identification of exhibit one.

Appellant does not contend that the substance had been tampered with. He asserts that possible commingling by Detective Pascual destroyed the admissibility of the evidence. See Stone v. State, 794 S.W.2d 868, 870 (Tex.App.—El Paso 1990, no pet.). In Stone, as here, an officer unequivocally identified the proffered evidence as the bag received from the informant-purchaser shortly after the purchase. See id. There, the court found that the chain of custody was sufficient to “establish that degree of security and evidentiary integrity justifying admission of the exhibits” and affirmed the conviction. See id.

[*431] The State’s position rests on the proposition that conflicts in the testimony which do not show an affirmative break in the chain of custody go to the weight of the evidence rather than its admissibility. See DeLeon v. State, 505 S.W.2d 288, 289 (Tex.Crim.App.1974); Bueno v. State, 501 S.W.2d 339, 341 (Tex.Crim.App.1973).

The cases cited by the State were decided prior to the adoption of the rules of criminal evidence, and Stone does not discuss admissibility under the rules. Stone, 794 S.W.2d at 870. Indeed, the rules of criminal evidence do not address the use of “chain-of-custody” proof. When and in what context should they be applied?

Rule 901 provides, in part:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Tex,R.Crim.Evid. 901(a).

Prior to the rules of evidence, proof of a chain of custody was required to properly authenticate or identify an item when there was a possibility of commingling the item with items similar in appearance, when items not having distinctive characteristics had not been marked with distinctive markings by the sponsoring witness, and when necessary to refute a suggestion that the evidence had been tampered with or changed in some manner. See, e.g., DeLeon, 505 S.W.2d at 289; Bueno, 501 S.W.2d at 341; Mitchell v. State, 488 S.W.2d 786, 786-87 (Tex.Crim.App.1973); Easley v. State, 472 S.W.2d 128, 128-29 (Tex.Crim.App.1971); Walker v. State, 470 S.W.2d 669, 672-73 (Tex.Crim.App.1971); Gutierrez v. State, 422 S.W.2d 467, 467-68 (Tex.Crim.App.1968); Wright v. State, 420 S.W.2d 411, 413 (Tex.Crim.App.1967).

Under Rule 901, proof of a chain of custody in the same circumstances is necessary to “support a finding that the matter in question is what its proponent claims.” Tex.R.CRIM.Evid. 901(a); see also Schlueter, Identification of Evidence: That’s the Knife, 54 Tex.B.J. 1107 (1991). Upon such a finding by the court, the evidence has been properly authenticated or identified, and the court can then determine its relevancy. See id. at 401.

Thus, we believe that in those instances in which proof of a chain of custody is necessary, the state must adduce such proof to establish that the evidence is what the state says it is — evidence connected to the defendant and to the offense — evidence having that degree of security and integrity to justify its admission. See Stone, 794 S.W.2d at 870. We also agree with the El Paso court that “minor theoretical breaches in the chain of custody” will not affect admissibility in absence of “affirmative evidence of tampering or commingling.” Id.

Here, we cannot determine whether the handling of the evidence by the officers or the clarity of the proof offered at trial created the appearance that the chain of custody was deficient. Neither is commended as a model of demonstrating a chain of custody. Nevertheless, we cannot say that the court abused its discretion in admitting exhibit one into evidence in view of the positive identification of clearly relevant evidence, the bag and its contents, by both the informant and Officer Pothen; both testified that it contained the substance that had been purchased from Appellant. See Haley v. State, 816 S.W.2d 789, 791 (Tex.Civ.App.—Houston [14th Dist.] 1991, no pet.); Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990); Stone, 794 S.W.2d at 870; Easley, 472 S.W.2d at 128-29; TexR.Crim.Evid. 401, 901(a). Because exhibit one was properly admitted, exhibit two was properly admitted as evidence of the chain of custody. Appellants points are overruled.

We affirm the judgment.