Opinion
No. 08-06-00215-CR
January 31, 2008. DO NOT PUBLISH.
Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 20040C14390).
Before CHEW, C.J., McCLURE, and CARR, JJ.
OPINION
Daniel Burmeister appeals his conviction for possession of marijuana, under two ounces. He was convicted by a jury and sentenced to 180 days in jail, probated for 18 months, and ordered to pay $1,000 in fines, in which $250 was probated. Appellant raises three issues on appeal, challenging the legal and factual sufficiency of the evidence supporting his conviction. We affirm. On October 1, 2004, El Paso Police Department Officer Roger Lozano was monitoring pedestrian traffic returning to El Paso over the Paso Del Norte bridge from Juarez, Mexico. At 1:50 a.m., Officer Lozano noticed a car enter the parking lot where he was posted. The car was moving, "at a good rate of speed," especially considering the heavy pedestrian traffic in the area. As it approached, Officer Lozano used a flashlight to signal the driver. The driver ignored the officer's signal and he made a sudden left turn, missing the officer by ten to fifteen feet. There was no exit where the car was headed, and the officer waited for it to return and he signaled the driver to stop. The officer walked up to the car and asked Appellant, the driver, "Hey, what's your problem? Didn't you see me?" Appellant did not respond initially. According to Officer Lozano, Appellant seemed confused. The officer asked for Appellant's driver's license. As Appellant searched for identification, the officer detected the smell of alcohol coming from inside the car. He then asked Appellant to step out of the vehicle. Appellant did so, but he moved slowly and had used the car for support. Officer Lozano called the El Paso DWI task force to perform field sobriety testing. Officer David Perea, of the El Paso Police Department DWI Task force, arrived a short time later. It was then about 2 a.m. Officer Perea noticed that Appellant was wearing sunglasses. Officer Perea asked Appellant about the glasses, and Appellant explained that they were prescription. As the officer spoke with Appellant, he noticed a strong smell of alcohol on the man's breath. Officer Perea asked Appellant to take off his sunglasses, and testified that Appellant's eyes were bloodshot. The officer also described Appellant's speech as slurred and that he was unsteady on his feet. Officer Perea administered three field sobriety tests: the horizontal gaze nystagmus (HGN) test; the walk and turn test; and the one-leg stand test. According to the officer, Appellant exhibited four of the possible six indicators of intoxication during the HGN test. During the walk and turn test, Officer Perea stated that Appellant could not maintain his balance as he listened to the officer's instructions, and was not able to touch his heal to his toe while walking. Out of eight possible clues, Officer Perea observed four. On the one-leg stand test, Appellant was not able to balance without using his arms. He also hopped and put his foot down four times during the test. Officer Perea recorded the Appellant exhibited three of the four possible clues during the one-leg stand. Based on Appellant's performance on the sobriety tests, Officer Perea concluded that he was intoxicated and placed him under arrest. El Paso Police Officer Carlos Lopez also responded to Officer Lozano's call for assistance. Officer Lopez arrived and began to inventory the contents of Appellant's car following his arrest. When Officer Lopez entered the vehicle to begin the inventory, he smelled a strong odor, which through his experience and training, he recognized to be burned marijuana. He found the ends of several cigarettes in the vehicle's ashtray. El Paso Police Department Forensic Chemist Arturo Herrera later tested the substance in the cigarettes and determined the cigarette butts contained 1.39 grams, or .05 ounces of marijuana. According to Officer Herrera, .05 ounces is a "useable" amount of marijuana. Appellant was convicted by a jury of possession of marijuana, less than two ounces. See Tex.Health Safety Code Ann. § 481.121(b)(1) (Vernon 2003). He was sentenced to 180 days in jail, probated for 18 months, and ordered to pay $1,000 in fines, in which $250 was probated. Appellant raises three issues for review, challenging the legal and factual sufficiency of the evidence in support of his conviction. In Issues One and Two, Appellant contends that the evidence is legally and factually insufficient to support his conviction due to a lack of evidence supporting the legality of Officer's Lozano's investigative stop. In essence, this argument is a challenge to the legal and factual sufficiency of the evidence in support of the jury's implied finding, submitted under Article 38.23(a) of the Texas Code of Criminal Procedure, that Officer Lozano had reasonable suspicion to stop and detain Appellant. A factual sufficiency review is only appropriate to address the sufficiency of the State's proof of the elements of the charged offense. Hanks v. State, 137 S.W.3d 668, 672 (Tex.Crim.App. 2004). Resolution of a fact issue pursuant to an Artice 38.23 instruction is question of what evidence the jury will consider in determining guilt, it does not address the factual sufficiency of the evidence in support of the essential elements of the charged offense. See Hanks, 137 S.W.3d at 671. In other words, a factual sufficiency review is only appropriate regarding the State's proof of the elements of the offense, not the jury's implied finding of facts supporting reasonable suspicion. Hank, 137 S.W.3d at 672. Similarly, because a legal sufficiency review is also limited to the essential elements of the offense, the 38.23 instruction cannot be used to measure the legal sufficiency of the evidence. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). To convict a defendant of possession of marijuana, under two ounces according to Section 481.121 of the Texas Health Safety Code, the prosecution must prove beyond a reasonable doubt that the defendant knowingly or intentionally possessed a "usable" amount of marijuana. See Tex.Health Safety Code Ann. § 481.121(a). The presence or absence of reasonable suspicion is not an element of the offense charged in this case. See id.; Hanks, 137 S.W.3d at 671, quoting Caddell v. State, 123 S.W.3d 722 (Tex.App.-Houston [14th Dist.] pet. ref'd) (whether or not evidence was illegally obtained is not an element of the offense, and therefore not subject to a sufficiency review). Because Appellant does not address the evidence supporting the elements of the offense as defined in the Texas Health and Safety Code, there is nothing to address as to his challenges to the sufficiency of the evidence in Issues One and Two. Issues One and Two are overruled. In Issue Three, Appellant argues that the evidence that a "usable" amount of marijuana was found in his vehicle is legally and factually insufficient. In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether an rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik, 953 S.W.2d at 240. The reviewing court may not re-evaluate the weight and credibility of the evidence, nor may we substitute our own judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In contrast, a factual sufficiency review requires that we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled on other grounds by Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006). Evidence is factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Again, however, our evaluation of the record must not intrude upon the fact finder's role as the sole judge of witness credibility and weight to be given testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We will not set aside a judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A "usable" amount of marijuana has been defined as, "an amount sufficient to be applied to the use commonly made thereof." Moore v. State, 562 S.W.2d 226, 228 (Tex.Crim.App. 1977), quoting Pelham v. State, 164 Tex.Crim. 226, 298 S.W.2d 171, 173 (Tex.Crim.App. 1957). Marijuana is commonly used in cigarettes or pipes, for smoking. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex.Crim.App. 1976). Appellant argues that the evidence is insufficient to support a finding that he was in possession of a "usable amount" of marijuana because the State's forensic chemist testified that only .02 grams of the substance found in Appellant's vehicle was tested and identified as marijuana. At trial, the sample was described as, "one little leaf." However, the chemist also testified that the sample he tested was taken from a combination of the contents of all the cigarette remains collected from Appellant's car. Officer Herrera, also testified that the 1.39 grams of contents he took out of the cigarette butts was a "usable quantity." We cannot interfere with the jury's role as the sole judge of credibility and weight to be given testimony. See King, 29 S.W.3d at 562. From the totality of Officer Herrera's testimony, the jury could reasonably have inferred that all of the substance found in Appellant's vehicle was marijuana. Therefore, having reviewed the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could find that Appellant was in possession of a "usable" amount of marijuana beyond a reasonable doubt. In addition, after a neutral review of the evidence, we hold that the jury was rationally justified in finding guilt beyond a reasonable doubt. Issue Three is overruled. Having overruled all of Appellant's issues, we affirm the conviction.
Appellant was also charged with and convicted of driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). He has appealed that conviction in a companion to this case. See Burmeister v. State, 08-06-00218-CR (Tex.App.-El Paso Jan. 31, 2008, no pet. h.).
The court's charge included the following Article 38.23 instruction:
You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officer has specific articulable facts, which taken together with rational inferences from those facts, lead them to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity.
Now, bearing in mind, if you find from the evidence that on the occasion in question the officer did not have a reasonable suspicion of criminal activity immediately preceding his stop and detention by the officer herein or you have a reasonable doubt thereof, then such stopping of the accused would be illegal. Furthermore, if you find the facts to be so, or if you have a reasonable doubt thereof, you will disregard the testimony of the officer relative to his stopping of the Defendant and his conclusion drawn as a result thereof and you will not consider such evidence for any purpose whatsoever and you must therefore acquit the Defendant, and find him not guilty on both cases.
See Tex. Code Crim.Proc.Ann. art. 38.23(a) (Vernon 2005).