No. 05-09-00630-CR
Opinion issued April 12, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 004-81109-09.
Before Justices MOSELEY, BRIDGES, and FILLMORE.
Opinion By Justice BRIDGES.
Gilberto Morado Lopez waived a jury and pleaded not guilty to possession of marijuana in an amount of two ounces or less. After finding appellant guilty, the trial court assessed punishment at sixty days' confinement in the county jail and with a back-time credit of ninety-one days. In two issues, appellant contends the evidence is legally and factually insufficient. The State agrees. We reverse and render a judgment of acquittal.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). To obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly possessed a usable quantity of marijuana in an amount of two ounces or less. See Tex. Health Safety Code Ann. § 481.121(a), (b)(1) (Vernon Supp. 2009). Evidence Presented
Corporal Marthiljohni testified he is a certified peace officer. He did not, however, state for what agency he worked or the location of that agency. On January 29, 2009, Marthiljohni was dispatched on a "welfare concern" call to the "Snappy Jack convenience store on Main Street" in reference to a passenger in a vehicle driven by Miguel Anguiano. When Marthiljohni arrived at the scene, the vehicle was parked and Anguiano was inside the store. Marthiljohni saw appellant open the passenger side door and "stumble" out of the vehicle. Appellant appeared to be unsteady on his feet. Marthiljohni testified that while he is not a drug expert, he has dealt with individuals who were under the influence of some sort of drug. In his opinion, appellant appeared to be intoxicated. Marthiljohni testified that as he tried to talk to appellant, Anguiano came out of the store. Anguiano interpreted Marthiljohni's statements in Spanish to appellant and interpreted appellant's responses in English to Marthiljohni. After a brief search for weapons, Marthiljohni asked appellant if he had any drugs on his person. Through Anguiano as his interpreter, appellant said yes. Marthiljohni asked appellant to empty his pockets. When he complied, appellant pulled a "small bag of marijuana" from the coin pocket on the right side of his jeans, and a prescription bottle from the inside pocket of his jacket. The name on the prescription bottle said "Brian Hall." Marthiljohni testified that although he did not do any tests on the contents of the bag, the "green substance" looked and smelled like marijuana. Marthiljohni also testified the prescription bottle contained five different types of pills, including Lexapro, Synthroid, and Ambien. Neither the "small bag of marijuana" nor the prescription bottle was introduced into evidence at the trial. Miguel Anguiano, a self-employed hardwood flooring installer, testified appellant had worked for him for eight months, and he and appellant lived in the same town. On January 29, 2009, Anguiano saw appellant "in a condition that looked like he was on some sort of drugs," so he called his wife about it. Anguiano testified one of the other men who worked for him must have called the police because others were aware of appellant's condition. Anguiano denied he was the person who called the police about appellant. When the police arrived, Anguiano went into the store. When he came out, the police were searching appellant. Anguiano did not see what the officers pulled out of appellant's pockets. Appellant did not testify or present any evidence at the trial. Discussion
Appellant contends the evidence is legally and factually insufficient to prove that the offense occurred in Collin County or that he possessed a usable quantity of marijuana. Appellant asks this court to reverse the trial court's judgment of conviction and render a judgment of not guilty. The State agrees that the evidence is legally insufficient to prove venue or the amount possessed, and that appellant's conviction should be reversed. Venue in a criminal case need only be proven by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Proof of venue may be established by direct or circumstantial evidence, and the fact-finder may draw reasonable inferences from the evidence. See Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983); Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Here, there was no evidence presented that the offense occurred in Collin County. Marthiljohni never specified in what state, county, or city he made contact with appellant or for what agency he worked as a certified peace officer. Even Anguiano, appellant's employer, did not specifically name the city or town where he and appellant lived. We conclude the evidence is legally insufficient to prove that the alleged offense occurred in Collin County. Likewise, we conclude the evidence is insufficient to prove appellant possessed a usable quantity of marijuana. The "small bag of marijuana" that Marthiljohni testified he saw was not introduced into evidence at trial, and there was no testimony establishing its weight or that it was a usable quantity. We sustain both of appellant's issues. We reverse the trial court's judgment and render a judgment of acquittal.