Opinion
No. 05-04-01832-CR
Opinion Filed February 13, 2006. DO NOT PUBLISH.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. 4-82822-03. Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
OPINION
Brenda Kay Capuano appeals the trial court's judgment which convicted her of possession of marijuana in an amount of two ounces or less, and assessed her punishment at confinement for thirty days in the county jail, probated to six months of community supervision, and a fine of $200. Capuano brings two issues on appeal: (1) the trial court erred when it denied her request for an instruction on the law of entrapment as it related to her traffic offense; and (2) the evidence was legally insufficient to establish the substance she possessed was Cannabis sativa L. We conclude the trial court did not err when it denied Capuano's request for an instruction on the law of entrapment and the evidence was legally sufficient to establish the substance Capuano possessed was the controlled substance commonly known as marijuana. The trial court's judgment is affirmed.
The record provides two different spellings for appellant's last name: "Capuano" and "Capauno."
The statutory spelling of the substance is "marihuana." See Tex. Health Safety Code Ann. §§ 481.002(26), .120, .121, .122 (Vernon Supp. 2005); Smith v. State, 176 S.W.3d 907, 911 n. 1 (Tex.App.-Dallas 2005, no pet. h.). The common spelling of the word is "marijuana." See Smith, 176 S.W.3d at 911 n. 1; see also 28 C.J.S. Drugs and Narcotics § 4 (1996). The common spelling is frequently used in trial court records. Smith, 176 S.W.3d at 911 n. 1. The information in this case used the statutory spelling, but the trial court's judgment used the common spelling. See id.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Merrit was conducting surveillance of an apartment complex for suspected drug activity and prostitution. He observed a Sport Utility Vehicle drive into the apartment complex, park in front of one of the apartments suspected of drug activity, and drive away after a short period of time. Officer Merrit followed the SUV in an unmarked police car and turned on the vehicle's video camera. While Officer Merritt was following the SUV, he observed it cross the white line when it stopped at a stop sign. After seeing this traffic violation, Officer Merrit turned on his lights and stopped the SUV. Capuano was the driver and two passengers accompanied her. One passenger was her daughter, Amber Buford, and the other passenger was Alberto Mendez. Capuano did not have her driver's license with her and told Officer Merrit there was an outstanding warrant for her arrest. Officer Merritt asked if there were any narcotics in the vehicle and Capuano told him there was marijuana under the front passenger seat, but it was "only a bowl's worth." Officer Merrit found a baggie of marijuana and a pipe under the front passenger seat of the SUV, and found a second pipe in the purse of one of the passengers. Capuano was charged by information with possession of marijuana in an amount of two ounces or less. Capuano testified at trial that, earlier that day, a neighborhood girl gave Buford and Mendez some marijuana. She stated she told her daughter to dispose of the marijuana, but Buford and Mendez smoked it instead. Capuano said she did not know they still had some of the marijuana until Buford told her it was in the SUV at the time they were being followed by the unmarked police car. In response to her daughter's statement, Capuano testified she told Buford to put the marijuana under the seat. Also, Capuano stated she failed to stop at the white line because the unmarked police car was following her at a fast speed and she was afraid. At trial, Officer Merritt testified he believed the substance he found was marijuana, based on its appearance and odor, and that Capuano told him the substance he found under the front passenger seat was marijuana. The jury found Capuano guilty and the trial court assessed her punishment at confinement for thirty days in the county jail, probated to six months of community supervision, and a fine of $200.II. ENTRAPMENT INSTRUCTION
In her first issue, Capuano argues the trial court erred when it denied her request for an instruction on the law of entrapment as it related to her traffic offense. Capuano contends she crossed the white line at the stop sign because she was frightened by the speed of the unmarked police car behind her. She claims that she was entitled to an entrapment instruction because she admitted the traffic offense and the lawfulness of the traffic stop was generated by the officer's conduct. The State responds that Capuano was charged with possession of marijuana and she failed to show she possessed that marijuana as a result of police inducement. Also, the State responds that Capuano denied she committed the underlying offense, the possession of marijuana.A. Standard of Review
An appellate court must consider all of the evidence raised at trial, regardless of its strength or if it is controverted, when determining if the evidence raises the issue of a defensive jury charge. See Reese v. State, 877 S.W.2d 328, 333 (Tex.Crim.App. 1994).B. Applicable Law
Whenever a defensive theory is raised by the evidence, the defendant is entitled to a jury instruction on that theory. Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App. 1984). The Texas Penal Code provides that:It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.Tex. Pen. Code Ann. § 8.06 (Vernon 2003). In order for a defendant to be entitled to a jury instruction on the defense of entrapment, she must make a prima facie showing of each element of the defense. See Richardson v State, 622 S.W.2d 852, 856 (Tex.Crim.App. [Panel Op.] 1981) (op. on reh'g); Garcia v. State, 528 S.W.2d 604, 605 (Tex.Crim.App. 1975). The defense of entrapment is not available to a defendant who denies the commission of the offense because that defense necessarily assumes the act charged was committed. See Norman v. State, 588 S.W.2d 340, 345 (Tex.Crim.App. 1979), limited on other grounds Reese, 877 S.W.2d at 336. A trial court's refusal to include a jury instruction on the defense of entrapment is not error if the defendant possessed the marijuana before she met the government agent. See McKinney v. State, 372 S.W.2d 699, 701 (Tex.Crim.App. 1963).
C. Application of the Law to the Facts
Section 8.06 of the Texas Penal Code expressly provides the defense of entrapment relates to the "offense charged." See Tex. Pen. Code Ann. § 8.06. The information charged Capuano with possession of marijuana. She was not charged with a traffic offense. Capuano claims the police caused her to commit a traffic offense, failure to stop at a designated point, which led to the charge against her for possession of marijuana. However, she does not claim Officer Merritt induced her to possess marijuana, the offense charged. Further, Capuano denied the offense of possession of marijuana and admitted the marijuana was in her vehicle before she met Officer Merritt. The defense of entrapment is not available under these circumstances. See Norman, 588 S.W.2d at 345 (denial of offense); McKinney, 372 S.W.2d at 701 (possession before meeting government agent). Accordingly, we conclude the trial court did not err when it denied Capuano's request for an instruction on the law of entrapment as it related to her traffic offense. Capuano's first issue is decided against her.III. LEGAL SUFFICIENCY
In her second issue, Capuano argues the evidence was legally insufficient to establish the substance she possessed was Cannabis sativa L. It is Capuano's contention that while the trial court instructed the jury that the definition of marijuana is Canabis sativa L., there is no evidence in the record from which the jury could have reasonably found that the substance she possessed was Cannabis sativa L. The State responds that the officer's lay opinion and Capuano's statement to police that the substance was marijuana are sufficient evidence even without chemical analysis.A. Standard of Review
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).B. Applicable Law
Section 481.121(a) of the Texas Controlled Substances Act provides that a person commits the offense of possession of marijuana if the person knowingly or intentionally possesses a usable quantity of marijuana. Tex. Health Safety Code Ann. § 481.121(a) (Vernon 2003); see State v. Perez, 947 S.W.2d 268, 273 (Tex.Crim.App. 1997). If the amount of marijuana the person possesses is two ounces or less, the offense is a Class B misdemeanor. Tex. Health Safety Code Ann. § 481.121(b)(1). Marijuana, a term of Mexican origin, is the dried leaves and flowering tops of a plant commonly known as hemp. See U.S. v. Moore, 446 F.2d 448, 450 (3rd Cir. 1971); 28 C.J.S. Drugs and Narcotics § 4 (1996). Marijuana is not a scientific or technical term. See U.S. v. Walton, 514 F.2d 201, 204 n. 16 (D.C. Cir. 1975); 28 C.J.S. § 4. Rather, the meaning of the term "marijuana" is determined from the legislature's enactments. See Williams v. State, 524 S.W.2d 705, 710 (Tex.Crim.App. 1975); see also 28 C.J.S. § 4. The Texas Controlled Substances Act defines marijuana as the plant Cannabis sativa L. See Tex. Health Safety Code Ann. § 481.002(26) (Vernon Supp. 2005). Cannabis sativa L. is the botanical name for the hemp plant. See Moore, 446 F.2d at 450; 28 C.J.S. § 4. "Cannabis" is the genus, "sativa" is the species, and the "L." is a reference to Linnaeus' system of botanical classification. See N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 6 (1st Cir. 2000). Court opinions raise the issue of whether there are several species of cannabis. See e.g., U.S. v. Maskeny, 609 F.2d 183, 188 (5th Cir. 1980). Regardless of this controversy over the number of species, the Texas Controlled Substances Act prohibits the possession of all species and varieties of the cannabis genus or "marijuana." See Carmouche v. State, 540 S.W.2d 701, 703 (Tex.Crim.App. 1976); Williams, 524 S.W.2d at 710; see also Maskeny, 609 F.2d at 188. A police officer's opinion testimony, based on his experience and the characteristics of the substance, that the substance is marijuana is sufficient to establish the substance is marijuana as that term is defined in the Texas Controlled Substances Act. See Carmouche, 540 S.W.2d at 703; see generally, Osbourn v. State, 92 S.W.3d 531, 537-38 (Tex.Crim.App. 2002) (police officer's lay opinion testimony based on firsthand sensory experiences admissible). Further, the State may also prove the identity of a controlled substance based on the defendant's admission. See Roberts v. State, 9 S.W.3d 460, 462 (Tex.App.-Austin 1999, no pet.).C. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence that the substance Capuano possessed was marijuana. During the trial, Officer Merritt stated, based on his experience, he believed the substance was marijuana because of its appearance and odor. See Carmouche, 540 S.W.2d at 703. Also, he stated Capuano told him the substance was marijuana. See Roberts, 9 S.W.3d at 462. Further, during cross-examination, Officer Merritt stated that, under the law, marijuana must be Cannabis sativa L., he did not conduct any chemical tests on the substance Capuano possessed, and it is an economic decision not to conduct a chemical test in a misdemeanor case. The trial court's charge instructed the jury, in part, that:The term "marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.Capuano contends that the evidence must establish the substance is Cannabis sativa L. because the trial court included the statutory definition of marijuana in the jury charge. However, it is settled that the Texas Controlled Substances Act prohibits the possession of all species and varieties of the cannabis genus or "marijuana." See Carmouche, 540 S.W.2d at 703; Williams, 524 S.W.2d at 710; see also Maskeny, 609 F.2d at 188. Accordingly, we conclude the evidence is legally sufficient to support Capuano's conviction for possession of marijuana. Capuano's second issue is decided against her.