No. 05-08-01254-CR
Opinion Filed July 10, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 6, Collin County, Texas, Trial Court Cause No. 006-81208-08.
Before Chief Justice THOMAS and Justices RICHTER and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant James Schuylar Nalls was charged by information with the offense of possession of a usable quantity of marijuana in an amount of two ounces or less. See Tex. Health Safety Code Ann. § 481.121 (Vernon 2003). Appellant waived his right to a jury and pleaded not guilty before the trial judge. After hearing evidence from one witness, the trial judge found appellant guilty of the charged offense and assessed his punishment at 48 days in jail. Appellant now appeals raising one issue: "Is the evidence legally or factually sufficient to support the trial court's verdict without the marijuana or the weight of the marijuana presented at trial?" We affirm.
Appellant was given credit for his backtime.
Facts
The State called one witness at trial, a Texas highway patrol officer identified as Trooper Bizor. Bizor testified as follows. On February 14, 2008, Bizor was in his patrol car, stopped, and using a laser to monitor speed of vehicles traveling on U.S. Highway 75 in Collin County, Texas. At about 9:33 p.m., Bizor's attention was drawn to a pickup truck traveling north. Bizor checked the truck with the laser and got a readout of 85 miles per hour. The speed limit at that location was 65 miles per hour. Based on the readout, Bizor pursued the truck with "the lights on." After about a mile of pursuit, the truck stopped. When the truck stopped, Bizor got out of his patrol car and walked up to the driver's side of the truck. Bizor used his flashlight to look inside the vehicle to make contact with the driver and his passenger. Bizor saw keys and a small, compressed ball of marijuana in the driver's lap. Based on presentation of a driver's license, Bizor identified the driver as James Schuylar Nalls. Upon seeing the marijuana, Bizor immediately took the driver out of the truck and "grabbed" the marijuana. Bizor "began to search the driver, told him he was under arrest for possession of marijuana, handcuffed him, stuck him in the patrol car where he was read his rights." Appellant said nothing in response to Bizor's comments. After he read the driver his rights, Bizor made contact with the passenger in the truck. Bizor "got the passenger out of the truck and handcuffed him and stuck him in the patrol car and read him his rights." Bizor then went back to search the truck. During that search, he found a small stamp-size plastic baggy of powdered marijuana on the driver's floorboard. Bizor described the marijuana as ground to a powder and in a plastic bag container used for stamp collections. Bizor testified the marijuana in the appellant's lap was "less than two ounces;" however, it was a "useable [sic] quantity." Bizor knew the substance was marijuana because he had been trained in the detection of marijuana. He also testified he had "been in controlled conditions and shown what marijuana looks like and smells like." Nevertheless, Bizor sent the substance to the crime lab for analysis. Bizor testified "that" was the marijuana he found on appellant on the date of the arrest and that it was a "useable quantity." Bizor described the marijuana as "a compressed grassy substance, green in color." He explained that by "compressed" he meant it was in an air-tight, compressed container where the ball would not fall apart if one held it in one's hand. He explained that was not uncommon. He further explained "they" compress it so "they can package more of it together for selling and distribution." After Bizor put the two people in his patrol car, he also found a package of rolling papers in a CD container in a visor on the driver's side. Bizor asked appellant if the little cellophane baggy of marijuana also belonged to appellant. At that time, appellant "turned and looked to his friend and asked him, was this his marijuana." The passenger replied, "Yeah, it's mine." The State again clarified he was referring to the small amount of marijuana in the little plastic baggy. Bizor testified appellant had care, custody and control of the little lump of marijuana that was in his lap. Bizor then secured the evidence, arranged to have the truck towed, and transported the two subjects to the Collin County jail. Both persons were charged with possession of marijuana under two ounces. Bizor testified the passenger was charged based on the marijuana in the "little plastic baggy" and that appellant was charged with the marijuana found in the compressed ball on his lap. Bizor testified, without objection, that it was his belief there was more marijuana "when [he] first lit them up" and that it "[p]robably [went] out the window." On cross-examination, Bizor explained his belief was based on the facts there was fresh marijuana sitting in appellant's lap with no container and that he could not completely have seen material being thrown from the car as he was following the truck about 9:30 at night. Bizor theorized the amount in appellant's lap dropped there while appellant was dumping more marijuana out the window. At the scene, appellant never denied owning the marijuana in his lap. Bizor testified he was not a chemist and he did not field test the substance because, to his knowledge, there is no way to field test marijuana. Bizor had been a trooper for twenty years. Bizor did not weigh the marijuana either at the scene or at the police station. Based on its appearance, Bizor believed the amount of marijuana was less than two ounces, but he did not have a specific weight to give to the judge. Bizor explained that appellant was charged with possessing only the compressed ball of marijuana. No fingerprints were taken. Bizor never asked appellant if the marijuana in his lap was his because it was in his possession. Bizor did not smell any marijuana and appellant never admitted possessing marijuana. After presenting Bizor's testimony, the State rested. The defense moved for an instructed verdict which the trial court denied. The defense then called the defendant to testify in his own behalf. Appellant testified his name was James Schuylar Chance Nalls and that he understood the charges against him. He also testified to the following facts. It did not take him a mile to pull over on the night in question. He and the passenger did not throw "dope" out the window while the trooper was in pursuit. He knew there was marijuana in the truck that night, but all of it, including the amount in his lap, belonged to his passenger, "Cody." When asked if that was the truth, appellant replied, "I could tell the difference in it." With that, the defense passed the witness. The trial court asked appellant what he meant by his last statement that he could tell the difference. Appellant replied, Yeah. I mean, I don't know if this is allowed in the courtroom or not, but what was found was regular marijuana and I smoked better marijuana than that. I don't know if that's — I mean, it just wasn't what I smoked. That's what I'm trying to tell you. I could tell the difference. I knew it wasn't mine. I knew it was there, yes, I did, but it wasn't mine. I didn't figure that I should go to jail for possession of marijuana when another grown man should have took (sic) responsibility for it as he did and I'm driving. I was just picking him up, taking him home. Yes, I was speeding, and I understand that the trooper did pull me over, but, I mean — On cross-examination, appellant admitted the Zig-Zag rolling papers in the overhead visor belonged to him. He denied the marijuana in his lap was his and stated he did not know how it got in his lap. He admitted that he had smoked marijuana before while he was driving and that he was a convicted felon. The defense rested and both sides closed. The trial court found appellant guilty and heard evidence on punishment. Although the State offered multiple exhibits, only State's exhibit four, documentary evidence of a final conviction for marijuana possession, was admitted into evidence. Rejecting both the State's recommendation of 180 days and defense counsel's recommendation of 72 hours, the trial court assessed appellant's punishment at 48 days in jail, with credit for his back time. This appeal ensued. Appeal
Appellant asks on appeal "Is the evidence legally or factually sufficient to support the trial court's verdict without the marijuana or the weight of the marijuana presented at trial?" (Emphasis supplied). Appellant argues the evidence is both legally and factually insufficient because without the introduction of the marijuana or a lab report concerning the weight of the marijuana into evidence, the court could not determine that the marijuana was a usable quantity. Standards of Review
The standards of review for both legal and factual sufficiency are well known to the parties. Legal
In determining whether the evidence is legally sufficient to support a conviction, the reviewing court determines whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). If the record supports conflicting inferences, the reviewing court must presume the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). Factual
A proper factual sufficiency review requires the reviewing court to review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The reviewing court must determine whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 7, 10-11. An appellate court cannot conclude the evidence is factually insufficient simply because it would have voted to acquit the defendant. Watson, 204 S.W.3d at 417. To reverse for factual insufficiency, a reviewing court must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id. Appellant argues the evidence is legally and factually insufficient because there was no evidence, or insufficient evidence, that the amount of marijuana found in appellant's lap was sufficient to be used in a cigarette, a necessary fact for the essential element of "usable amount." He contends that Bizor's testimony that the material was less than two ounces and a usable amount was conclusory and that without an exact weight, the marijuana itself, or an estimate that the marijuana could be used to make even a small marijuana cigarette, the State failed to meet its burden. The State, of course, disagrees. Law
A person commits an offense if he knowingly or intentionally possesses a usable quantity of marijuana. See Tex. Health Safety Code Ann. § 481.121(a). A "usable quantity" is "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)). The court in Pelham noted that marijuana is commonly smoked in a cigarette. In Lejeune v. State, 538 S.W.2d 775, 778 (Tex.Crim.App. 1976), the court of criminal appeals addressed the issue of whether a revocation of probation could be sustained in the absence of testimony from a chemist or other qualified witness or a stipulation that the marijuana involved was a "usable quantity." There, the amount was shown to be 7.7 grams. In this case, we address the reverse of the issue addressed in Lejeune. Here, the only witness was Trooper Bizor, who testified as to his professional training and experience, qualifying him as an expert witness on marijuana. He testified the substance was marijuana and no evidence was presented to the contrary, nor does the defense challenge on appeal that the substance was not marijuana. In fact, defense testimony established that it was marijuana. An officer's testimony that a substance is a usable quantity of marijuana is sufficient evidence to support a conviction. See Rumsey v. State, 675 S.W.2d 517, 521 (Tex.Crim.App. 1984), partially disavowed on other grounds, Miller v. State, 736 S.W.2d 643, 648 (Tex.Crim.App. 1987). Usable quantity can be proven by circumstantial evidence or inferences drawn from the evidence of the amount of marijuana possessed. See State v. Perez, 947 S.W.2d 268, 271 n. 6 (Tex.Crim.App. 1997). This court has previously held that there must simply be enough evidence for a fact-finder to conclude there was "enough marijuana to roll into a cigarette or smoke in a pipe." See Kimberlin v. State, No. 05-02-02020-CR, 2004 WL 1110523, at *1-2 (Tex.App.-Dallas May 19, 2004, no pet.) (not designated for publication). Analysis
At trial, the defense focused on establishing that the ball of marijuana in appellant's lap belonged to the passenger rather than appellant. Appellant did not contest that the substance found on his lap was marijuana, and he did not challenge Bizor's assertion that the marijuana was a usable quantity. The only issue at trial was whether it was appellant's marijuana or the passenger's marijuana. Appellant conceded he knew the marijuana was in the truck; however, he denied owning it because he used a higher grade of marijuana than what was found in the truck. Bizor testified, without objection, that the material he saw in plain sight on appellant's lap as he approached the pickup truck was a compressed grassy substance, green in color, less than two ounces in quantity, and was a usable quantity of marijuana. He based his observations and conclusions on his training in the detection of marijuana and having been in controlled conditions where he was shown what marijuana looks and smells like. Based on that testimony, the trial court could reasonably have inferred the amount found was enough to roll into a cigarette or use in a pipe. Appellant admitted the Zig-Zag rolling papers found above the visor were his, although he denied the marijuana was his. The trial court simply could have disbelieved appellant's testimony. Having reviewed all the evidence presented under the respective standards of review earlier set out in this opinion, we conclude the evidence is both legally and factually sufficient to support the trial court's verdict of guilt. Bizor's testimony, based on his extensive experience, suffices to show "usable quantity." See Rumsey, 675 S.W.2d at 521. And no evidence contradicting Bizor's opinion was presented. Consequently, the verdict cannot be said to be against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417. We affirm.