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Click here for the full text of this decision As the court reaffirmed in Melton, “The manner of testing the substances by random sampling goes only to the weight the jury may give to the tested substances in determining the untested substance is the same as the tested substance.” FACTS:A jury convicted the appellant of possession of more than one but less than four grams of cocaine. On appeal, the appellant argued, among other things, that the evidence was legally insufficient to support his conviction because the state’s chemist did not test all 12 rocks of crack cocaine recovered from his mouth, but instead tested only a random sample of five of the 12 rocks. The court of appeals rejected this argument, relying on this court’s plurality opinion in Gabriel v. State, 900 S.W.2d 721 (Tex. Crim. App. 1995). The appellant now contends that the court of appeals erroneously relied on a plurality opinion and that its decision conflicts with another court of appeals’ opinion, Melton v. State, 85 S.W.3d 442 (Tex. App. � Austin 2002, pet. granted). HOLDING:Affirmed. The court recently overruled the court of appeals’ decision in Melton v. State, No. 2052-02, 2003 Tex. Crim. App. LEXIS 596 (Tex. Crim. App. Oct. 15, 2003). This court held there that the state does not have to test each and every rock of crack cocaine, rather, “[t]he State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight.” The court also recognized that, although Gabriel was a plurality opinion, the court still could look to that opinion for its persuasive value. As the appellant concedes in his brief, the state’s chemist tested and confirmed the presence of cocaine in at least five of the rocks. The chemist further explained that scientific sampling is used if “they’re all the same color and all the same consistency.” As this court reaffirmed in Melton, “The manner of testing the substances by random sampling goes only to the weight the jury may give to the tested substances in determining the untested substance is the same as the tested substance.” The chemist testified that the total weight of the rocks was 1.3 grams. Based on Melton, and considering the evidence in this case, the court finds that the court of appeals correctly held that the evidence was legally sufficient to support appellant’s conviction. OPINION:Hervey, J., delivered the opinion of the court. CONCURRENCE:Meyers, J., joined by Price, J. “To me, testing a random sample of the rocks of crack cocaine is sufficient to show that the entire substance recovered from appellant’s mouth was crack cocaine adding up to the alleged minimum weight. See Melton v. State, No. 2052-02 (Tex. Crim. App. Oct. 15, 2003). I write separately because I feel that the appellant brought the wrong point of error. Instead of examining the sufficiency of the evidence, I would consider this an admissibility issue under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Although at trial appellant only objected to the admission of the cocaine as the fruit of an illegal search and on appeal argued that the evidence was legally insufficient to show that he possessed more than one gram of cocaine, I would frame this issue as a question of the reliability of the expert’s methodology. Under Daubert, if an expert’s opinion is not methodologically reliable, then the opinion is inadmissible. Id. at 592-593. “Appellant argues that the testing of only a random sample relieves the State of the burden of proving the weight of the substance, which affects the punishment range. Because only five of the 12 rocks of cocaine were tested and the expert did not weigh the five tested rocks alone, appellant argues that the total weight of cocaine may have been less than one gram, making him eligible for a lesser punishment range. Testimony at trial focused on the expert’s method of testing the evidence. Appellant attempted to point out flaws in the expert’s methodology and the reliability of testing only a sample then extrapolating to the whole. . . . “[I]t appears that appellant was attempting to discredit the expert’s testimony that appellant possessed 1.3 grams of cocaine by attacking his method of testing the evidence. The State, however, elicited testimony that the expert used a scientifically accepted method of testing. It was within the trial judge’s discretion to admit the evidence for the jury to weigh in determining whether appellant possessed the requisite amount of cocaine. “Admissibility of evidence and the legal sufficiency of the evidence are often interrelated, with the trial judge first determining whether to admit the evidence and then the jury determining what weight to give the evidence. The real difference occurs on appellate review. Here, it is likely that appellant argued legal insufficiency in order to avoid the deferential abuse of discretion review used for admissibility of evidence. Legal sufficiency of the evidence, however, is reviewed de novo. See Judge Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133, 1153-1158 (1999). “Because I agree that the expert testimony in this case was both admissible and legally sufficient to support the conviction, I join the majority’s opinion.”

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