Affirmed and Memorandum Opinion filed April 19, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00531-CR

                   DAVID DANIEL RODRIGUEZ, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

             On Appeal from County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Cause No. 1967991

                  MEMORANDUM                       OPINION


      A jury convicted appellant David Daniel Rodriguez of possession of a
controlled substance, namely, less than 24 grams of alprazolam. The trial court
sentenced appellant to confinement for 125 days in the Harris County Jail. In his
sole issue on appeal, appellant claims the trial court erred in denying his request for
an instruction in the jury charge on the lesser-included offense of attempted
possession of a controlled substance. We affirm.
                                 APPLICABLE LAW

      Alprazolam is a controlled substance in Penalty Group 3. Tex. Health &
Safety Code § 481.104(2). Possession of less than 24 grams of alprazolam is a
Class A misdemeanor. Id. § 481.117(a). Therefore, its attempted possession is one
class lower, or a Class B misdemeanor. Tex. Penal Code § 15.01(d). Attempt is an
act with requisite intent that amounts to more than mere preparation but fails to
effect the commission of the offense. Id. § 15.01(a).

      We review the trial court’s decision on the submission of a lesser-included
offense for abuse of discretion. Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim.
App. 2005). The trial court abuses its discretion when its decision is arbitrary,
unreasonable, or without reference to guiding rules or principles. Makeig v. State,
802 S.W.2d 59, 62 (Tex. Crim. App. 1990). To determine whether appellant was
entitled to an instruction on attempted possession in this case, we consider the two-
part test set forth in Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App.
1993). First, the lesser offense must be included within the proof necessary to
establish the offense charged. Id. Second, there must be some evidence that would
have allowed the jury to rationally find that if the defendant is guilty, he is guilty
only of the lesser offense. Id. In other words, there must not only be some evidence
that would allow a reasonable trier of fact to acquit the defendant of the higher
offense, but also sufficient evidence to support a conviction for the lesser. Sweed v.
State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). “Anything more than a scintilla
of evidence is sufficient to entitle a defendant to a lesser charge.” Goad v. State,
354 S.W.3d 443, 446 (Tex. Crim. App. 2011). Although this is a low threshold, “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-

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included offense is warranted.” Sweed, 351 S.W.3d at 68. “This standard is
satisfied if some evidence refutes or negates other evidence establishing the greater
offense or if the evidence presented is subject to different interpretations.” Bridges
v. State, 389 S.W.3d 508, 512 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(citing Goad, 354 S.W.3d at 446). We consider all of the evidence but not its
credibility or whether it is controverted. Id. (citing Goad, 354 S.W.3d at 446–47).

                               PERTINENT EVIDENCE

      The record reflects appellant was arrested for public intoxication and
searched. Officer Vargas of the Houston Police Department recovered a pill from
the pocket of appellant’s pants that appellant identified as Xanax. Vargas placed
the pill in the patrol car’s cup holder. Appellant was charged with possession of a
controlled substance and transported to jail where another search recovered two
more pills from appellant. Mona Colca, a forensic analyst, testified during trial that
she received as evidence a Ziploc bag, inside of which was a section of plastic
containing pieces of tablets. She analyzed the tablet pieces by performing a “thin
layer chromatography” test and a “gas chromatograph-mass spectrometry” test and
determined they contained alprazolam, commonly known as Xanax, a controlled
substance. Colca further testified the controlled substance weighed .22 grams.

      On cross-examination, Colca explained the thin layer chromatography test is
a presumptive test in which the unknown substance is compared to a known
sample, in this case, alprazolam. The presumptive test indicated the unknown
substance was alprazolam so a confirmatory structural test, using a gas
chromatograph-mass spectrometry machine, was performed. As noted above, from
the results of that test Colca determined the substance contained alprazolam. Colca
was asked to explain “retention time” and answered as follows:



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      A. So for the -- the gas chromatograph is a two-part test. The first
      part, the gas chromatograph, that will measure retention times. So
      what a retention time is, is when you introduce a sample, I'll take a
      sample, it's diluted in a solvent, and introduce that to the gas
      chromatograph part of the instrument. What happens there is, inside
      the gas chromatograph is a column. The column is circular and it’s
      round. And when a substance is injected into the gas chromatograph,
      it's going to travel through that column and helium carrier gas will be
      flowing through that column as well.
      Now, different substances have an affinity to that column. So some
      substance might come out at one minute, another substance might
      come out at two minutes. Some substances might come out at the very
      end like ten minutes. So that is what we think of as retention times.
      Q. Now, how important is that to identifying the substance?
      A. We don't use retention time as an identification.
      Q. Why?
      A. We use the gas chromatograph, is -- the gas chromatograph-mass
      spectrometer is what we use as the confirmation.

      Colca agreed that alprazolam had a retention time of 9.96 and another drug,
diltiazem, had a retention time of 9.79. Colca testified the sample tested in this case
had a retention time of 9.795, but reiterated “the retention time is not used to make
the identification. The mass spectra is used to make the identification.” Colca
stated, “Yes. Those two retention times are different. But to make my
identification, it’s a two-part test, the gas chromatograph and mass spectrometer.
You would have to look at the mass spectra of that sample that was injected.”

      Colca agreed that placing the pill in the patrol vehicle’s cup holder could
cause contamination. On redirect, Colca stated there was residue on the pill she
tested and that she tries to take her sample from the innermost part of a tablet or
table piece. Colca testified that in her opinion the substance contained alprazolam.
On recross, Colca stated the tablet’s marking gave her an idea of what substance it
might be.
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                                      ANALYSIS

      As noted above, an instruction on a lesser-included offense is warranted if
the offense contained in the requested instruction is a lesser-included offense of the
charged offense and the admitted evidence permits a rational jury to find the
defendant guilty only of the lesser-included offense. Goad, 354 S.W.3d at 446.
Attempted possession of a controlled substance is a lesser-included offense of
possession. Tex. Code Crim. Proc. art. 37.09(4) (an offense is a lesser-included
offense if it consists of an attempt to commit the offense charged). See also Ex
parte Fournier, 473 S.W.3d 789, 792 (Tex. Crim. App. 2015). We therefore
conclude the first requirement is satisfied.

      Regarding the second requirement, appellant points to the retention times
and the potential contamination to support his claim there was some evidence that
the pills found in his possession were diltiazem, not alprazolam. We disagree.

      There was no evidence the evidence was, in fact, contaminated. Likewise,
there was no evidence the substance was not alprazolam. See McElhaney v. State,
899 S.W.2d 15 (Tex.App.—Tyler 1995, pet. ref’d, untimely filed) (citing Bignall v.
State, 887 S.W.2d 21 (Tex. Crim. App. 1994) (rejecting simple assault as lesser-
included offense of aggravated robbery when a pipe was used, because “[t]he
second prong of the test . . . does not mandate a speculative inquiry into whether
the jury might not have been convinced . . .”); Spencer v. State, No. 14–99–00969–
CR, 2000 WL 1752766, at *4–5 (Tex.App.—Houston [14 Dist.] Nov. 30, 2000,
pet. ref’d) (mem. op., not designated for publication) (speculation that the jury
“might have believed” that screwdriver was not a deadly weapon, without evidence
that it was not used as one, did not entitle defendant to an instruction on the lesser-
included offense of assault); cf. Bridges v. State, 389 S.W.3d 508, 512
(Tex.App.—Houston [14th Dist.] 2012, no pet.) (holding that defendant was

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entitled to instruction for simple assault where defendant denied having knife
during altercation with complainant and complainant testified at trial that she cut
her hand during altercation when defendant took knife away from her). No
testimony refuted or negated Colca’s testimony that the retention time was one part
of a two-part test and that the second part of the test — the gas chromatograph and
mass spectrometer — identified the seized substance as alprazolam. Thus, there
was no evidence “directly germane to the lesser-included offense for the finder of
fact to consider,” and an instruction on the lesser-included offense was not
warranted. See Sweed, 351 S.W.3d at 68. See also Penaloza v. State, 349 S.W.3d
709, 713 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (defendant was not
entitled to lesser-included offense instruction on robbery where record contained
no evidence that a deadly weapon was not used).

       We therefore conclude the trial court did not abuse its discretion in denying
the requested instruction and overrule appellant’s only issue. The judgment of the
trial court is affirmed.




                                       /s/       Marc W. Brown
                                                 Justice



Panel consists of Justices Jamison, Donovan, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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