Clinton Williams v. State ( 2010 )

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Opinion issued June 3, 2010

In The

Court of Appeals

For The

First District of Texas

________________

NO. 01-08-00936-CR

________________

CLINTON WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the County Court

Colorado County, Texas

Trial Court Cause No. 20765



  MEMORANDUM OPINION

          Following a bench trial, appellant, Clinton Williams, was convicted of possession of marijuana in an amount of two ounces or less. See Act of May 29, 1994, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3705, 3709 (amended 2009) (current version at Tex. Health & Safety Code Ann. § 481.121 (Vernon Supp. 2009)).[1] The court assessed punishment at 180 days in jail, suspended the sentence, placed appellant on community supervision for two years, and imposed a $500 fine. On appeal, appellant argues that: (1) the trial court erred in denying appellant’s motion to suppress, and (2) the evidence is legally and factually insufficient to support his conviction. We affirm.

Background

On March 25, 2008 at approximately 11:00 p.m., appellant was stopped by Texas Department of Public Safety (“DPS”) Trooper Josh West for traveling 19 miles over the speed limit. West initiated the stop as appellant passed him on I-10 traveling 84 miles per hour. After West activated his lights and began pursuit in his marked patrol car, appellant continued driving in the left lane for approximately 30 to 40 seconds before pulling over to the shoulder. West was in close proximity to appellant’s vehicle during the pursuit and traffic was light, so he found it strange that appellant did not pull over sooner. West testified that he was certain appellant saw the marked patrol car. Because appellant took an unusually long time to pull over, West suspected that appellant might be trying to hide something in the vehicle.

Once stopped, West approached the vehicle. The back driver’s side window of appellant’s vehicle was covered with tape and cardboard, obstructing West’s view inside. To make contact with appellant, West had to tap on the window to alert appellant to roll down the passenger side window. Appellant told West that he was traveling from Austin to Houston but inadvertently went through San Antonio because he was talking on his cell phone. West commented that San Antonio was “a little bit out of the way,” and appellant responded that he “didn’t even realize it until [he] was in San Antonio.” West testified that I-10 was a main corridor for drugs, so appellant’s route made him suspicious that appellant was possibly transporting drugs.

Trooper West determined that appellant’s registration and inspection had both expired in December 2007. While speaking with the officer, appellant acted nervous and commented under his breath that “he was screwed.” West testified that “[t]here was a faint smell of smoke, possibly marijuana coming from the vehicle.” Appellant told the officer that he had been “smok[ing] menthol [cigarettes].”

Because of appellant’s slow response to pull over, suspicious route, comment that “he was screwed,” abnormal nervousness and shaking, and the smell of marijuana, Trooper West suspected appellant was involved in criminal activity. A check of appellant’s criminal history revealed a prior arrest for possession of marijuana in 2001, as well as a prior arrest in Utah. West attempted to ask appellant if he had ever been arrested, but without letting the officer finish the question, appellant quickly answered, “No.” West specifically asked appellant if he had ever been arrested for drugs or weapons, to which he responded, “no.” West testified that appellant mentioned something about Utah but denied having a prior drug arrest. When asked, appellant also denied having any illegal drugs or weapons in his vehicle.

Because of his prior suspicions and appellant’s misrepresentation of his criminal history, Trooper West asked for appellant’s consent to search the vehicle. West testified that appellant responded, “Okay, but you probably don’t want to due to the glass and the pornography in the vehicle.”

Believing that appellant had consented to the search of his vehicle, West returned to his patrol car to inform dispatch that he planned to search the vehicle. As West approached the vehicle to begin the search, appellant became angry, asking the officer what he was doing. When West told him that he was going to search the vehicle, appellant said, “No, you’re not.” West explained to appellant that he had already consented to the search, but appellant denied ever giving consent. Appellant became very angry and belligerent, yelling that the officer was “not getting in the vehicle.” Surprised by appellant’s reaction, West tried to calm appellant by explaining that he thought he had given consent. West did not proceed with the search, but because of appellant’s belligerent behavior, West detained and handcuffed appellant for his safety. When asked why he was refusing consent, appellant “stated that he had broken glass in the vehicle and he did not want [West] to pull his stuff out” and “scatter stuff everywhere.” Additionally, appellant said he had “porn” in his vehicle that he “d[id]n’t want pulled out.”

To dispel his suspicions of criminal activity, Trooper West decided to call a canine unit to the scene. The DPS canine unit was not available, so he called a canine unit from a neighboring police department to the scene. Officer John Williams with the Eagle Lake canine unit arrived approximately 45 minutes later. Officer Williams noticed the smell of marijuana coming from the vehicle. A canine sniff open-air search was conducted around appellant’s vehicle by a certified drug detection dog and Officer Williams. The dog alerted to the driver’s side window and the passenger side door seam. After the dog’s alert, Trooper West and Officer Williams searched the vehicle and found a baggie containing marijuana and a small tinfoil “hitter pipe” in the center console. West and Williams testified that, based on their training and experience, the substance in the baggie was marijuana. Also, based on his training and experience, Trooper West opined that it was a usable quantity of marijuana.

As captured in the video taken from West’s dashboard video camera, appellant, after receiving his statutory warnings, explained that he “hung out with a girl [he] d[oes]n’t usually hang out with and she gave [him] some weed.” He admitted that he smoked the marijuana earlier that day before he had left Austin. He explained that he had planned to “throw it out the window an hour ago” and commented, “I should have thrown it out the window when I saw your lights.” Appellant apologized to Trooper West for his attitude, and explained, “You were dead on. I was trying to hide the marijuana.” Appellant also admitted that he had lied when he told West that he had pornography in the vehicle. Appellant stated, “That was just a cover-up for the weed.”

The State offered, and the court admitted, the baggie containing the marijuana and the “hitter pipe” that was recovered from appellant’s vehicle into evidence as State’s Exhibits 1 and 1A. Appellant did not call any witnesses. However, appellant offered West’s dashboard camera videotape into evidence and played it in its entirety for the court.

Suppression of Evidence

Appellant argues that the trial court erred in denying his motion to suppress because Trooper West and Officer Williams found the contraband as a result of an unlawful detention unsupported by reasonable suspicion. While he concedes that West had sufficient cause to initiate a traffic stop for speeding, appellant argues that his continued detention was unreasonable and a “fishing expedition” for unrelated criminal activity.

          A.      Standard of Review

          We review the trial court’s ruling on a motion to suppress under an abuse-of-discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We view the evidence adduced in the light most favorable to the trial court’s ruling. Id. “We give almost total deference to a trial court’s express or implied determination of historical facts and review de novo the court’s application of the law of search and seizure to those facts.” Id.

The trial court denied appellant’s motion to suppress but did not make explicit findings of fact or conclusions of law. “Under these circumstances, we imply the necessary fact findings that would support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial court’s ruling, supports these implied fact findings.” Weaver v. State, 265 S.W.3d 523, 533 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citing State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006)). We will sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

          B.      Applicable Law

When a traffic violation is committed within an officer’s view, the officer may lawfully stop and detain the person for the traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). A traffic stop is a detention and must be reasonable under the United States and Texas Constitutions.[2] Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (en banc); Magana v. State, 177 S.W.3d 670, 673 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “Reasonableness is measured in objective terms by examining the totality of the circumstances.” Spight v. State, 76 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417 (1996)). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319 (1983); Davis, 947 S.W.2d at 245. “The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Davis, 947 S.W.2d at 245 (citing Perez v. State, 818 S.W.2d 512, 517 (Tex. App.—Houston [1st Dist.] 1991, no pet.). Once the reason for the stop has been satisfied, police officers may not use the stop as a “fishing expedition” for unrelated criminal activity. Id. at 243.

Any continued detention beyond the reason for the initial traffic stop must be based on reasonable suspicion, requiring that the officer have articulable facts which, taken together with reasonable inferences from those facts, would warrant a person of reasonable caution to conclude that the individual stopped was engaged in criminal activity. Id. at 244–45. To establish reasonable suspicion, an officer must be able to articulate something more than an unparticularized suspicion or “hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581 (1989). The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673 (2000). Following an initial traffic stop, an officer may rely on all facts ascertained during the course of his contact with the stopped individual to develop articulable facts that justify further detention. Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979); Sims v. State, 98 S.W.3d 292, 294 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Further, in forming reasonable suspicion to justify a continued detention, an officer may draw on his training and experience. Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.—Austin 2000, pet. ref’d); see also United States v. Cortez, 449 U.S. 411, 421, 101 S. Ct. 690 (1981).

          In support of his suppression argument, appellant cites to Johnson v. State for the proposition that when behavior is “as consistent with innocent activity as with criminal activity,” it cannot support a finding of reasonable suspicion. See Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983), overruled by Woods v. State, 956 S.W.2d 33, 37 (Tex. Crim. App. 1997). Prior to Woods, the “as consistent with innocent activity as with criminal activity” was the proper test. Woods, 956 S.W.2d at 35–36. However, in Woods, the Texas Court of Criminal Appeals disapproved of the test and expressly repudiated its decision in Johnson. Id. The Court held that the “reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.” Id. at 38.



C.      Analysis

          Because appellant does not challenge the legality of the original traffic stop, we focus our inquiry on whether Trooper West had reasonable suspicion to continue to detain appellant.

When Trooper West first initiated the traffic stop, appellant continued driving for 30 to 40 seconds despite West’s close pursuit in a marked squad car with its lights and siren activated. Because traffic was light, West found it suspicious that appellant did not pull over sooner and believed he might be trying to hide something. West testified that, normally when traffic is light, drivers will automatically tap their brakes and try to get over to the shoulder as soon as possible after the officer activates his lights to initiate a traffic stop.

After approaching appellant’s stopped vehicle, West had to tap on the window to alert appellant to roll down the passenger side window. Appellant informed West that he was traveling from Austin to Houston but inadvertently went through San Antonio because he was talking on his cell phone. West testified that I-10, the highway on which appellant was driving, was a main corridor for drugs. While speaking with the officer, appellant acted nervous and commented under his breath that “he was screwed.” Appellant misrepresented his criminal history to the officer. West testified that “[t]here was a faint smell of smoke, possibly marijuana coming from the vehicle.” When West approached the vehicle to conduct the search that appellant had initially agreed to, appellant withdrew his consent and became belligerent and angry.

Trooper West was permitted to rely on these observations that he obtained during his contact with appellant. See Razo, 577 S.W.2d at 711; Sims, 98 S.W.3d at 294. The facts give rise to reasonable suspicion that appellant was engaged in criminal activity and provide sufficient cause to prolong appellant’s detention for a canine drug unit. See Sims, 98 S.W.3d at 295–96.

Appellant argues that each of the facts relied on by the State can be explained by innocent behavior. In his brief, appellant isolates each fact and suggests an alternative, innocent explanation for the behavior. However, this reasoning is contrary to the “totality of the circumstances” standard for evaluating reasonable suspicion and has been expressly disapproved by the United States Supreme Court. In Arvizu, the Supreme Court held that courts should not engage in a “divide-and-conquer” analysis of the facts, but should instead look at the totality of the circumstances to see if an officer had developed reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744 (2002).

A canine sniff of the air surrounding a defendant’s property by a trained drug-detecting dog is not considered a search within the meaning of the Fourth Amendment because it provides limited information, “disclos[ing] only the presence or absence of narcotics,” and “does not expose noncontraband items that otherwise would remain hidden from public view.” United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637 (1983). The use of a drug dog is a minimally intrusive method of investigation to verify or dispel an officer’s suspicion that a vehicle contains illegal drugs. Josey v. State, 981 S.W.2d 831, 841(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding 90-minute delay for a drug dog was not unreasonable).

During the traffic stop, appellant exhibited behavior that led Trooper West to suspect that he was involved in criminal activity and, specifically, that he had illegal drugs in his vehicle. When appellant withdrew his earlier consent to search the vehicle, West attempted to locate a canine unit. The DPS canine unit was unavailable, so West contacted a canine unit from a neighboring department so that the canine sniff could be conducted at the earliest time possible. The canine unit arrived to the scene approximately 45 minutes later. Given the totality of the circumstances, the 45-minute detention was not unreasonable. See id.

The trial court did not abuse its discretion by denying appellant’s motion to suppress because, based on the totality of the circumstances, West had sufficient reasonable suspicion to detain appellant until a canine unit could conduct an open-air search of the air surrounding appellant’s vehicle. We overrule appellant’s first issue on appeal.

Sufficiency of the Evidence

          Appellant’s second and third issues challenge the sufficiency of the evidence supporting appellant’s conviction.

          Specifically, in his second issue, appellant argues that the evidence was insufficient to support his conviction “when the prosecutor rested it’s [sic] case after the motion to suppress hearing without offering any evidence at trial on the merits[.]” Appellant cites to Cruz v. State in support of his argument, but Cruz is distinguishable. See 657 S.W.2d 850, 850–51 (Tex. App.—Texarkana 1983, no pet.). Cruz involved a pretrial hearing on a motion to suppress a handgun. Id. After the hearing, the court did not rule on the motion but, instead, reset the case. Id. On the reset date, the court overruled the motion to suppress, admitted the handgun into evidence, and called the case to trial. Id. The State rested its case without offering anything further, and the defendant offered nothing. Id. In Cruz, it was apparent that the court was holding a pretrial evidentiary hearing. The present case is distinguishable because appellant did not file a pretrial motion to suppress and failed to bring his motion to the court’s attention until the State’s case-in-chief. The record does not reflect that the court stopped trial to hold an evidentiary hearing. Rather, it is evident from the record that the court carried the motion with the trial on the merits. Thus, because appellant’s second issue is dependent on this Court’s first finding that a separate suppression hearing was held, and because we do not so find, we need not reach this issue.

          In his third issue, appellant argues the evidence was legally and factually insufficient to show that “appellant intentionally or knowingly possessed marijuana or a useable quantity of marijuana[.]”

          A.      Standard of Review

          In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. See, e.g., Walmer v. State, 264 S.W.3d 114, 116–17 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (applying the same standard of review applicable to a jury’s verdict to a sufficiency review of bench trial findings); see also Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence used to support them, just as we would review a jury’s findings.”).

          In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The standard is the same for both direct and circumstantial evidence cases. Laster, 275 S.W.3d at 517–18.   We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

          In our factual-sufficiency review, we view all of the evidence in a neutral light. Laster, 275 S.W.3d at 518. We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Laster, 275 S.W.3d at 518. Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been the fact-finder. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the fact-finder’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the fact-finder’s determination. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the fact-finder’s determination. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

          The trier of fact is the ultimate judge of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).   The fact-finder alone determines the weight to be given to contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Lancon, 253 S.W.3d at 706. The fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 707.

          B.      Possession of a Usable Quantity of Marijuana

          Appellant was charged by information with possession of a usable amount of marijuana in an amount of two ounces or less. Tex. Health & Safety Code Ann. § 481.121. The State had the burden to prove the elements of the offense: (1) a person (2) did knowingly or intentionally (3) possess (4) a usable quantity of (5) marijuana, and (6) amount possessed in ounces as set forth in statute.   State v. Perez, 947 S.W.2d 268, 271 n.6 (Tex. Crim. App. 1997) (citing Lejeune v. State, 538 S.W.2d 775, 777 (Tex. Crim. App. 1976)).

Appellant contends that there is insufficient evidence to establish that the substance was marijuana and that it was a usable quantity.

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)). Common uses of marijuana include smoking in cigarette form or in a pipe. See Lejeune, 538 S.W.2d at 780. 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).

Usable quantity can be proven by circumstantial evidence or inferences drawn from the evidence of the amount of marijuana possessed. See Perez, 947 S.W.2d at 271 n.6. Where the fact-finder is able to examine the actual marijuana found in the defendant’s possession, it can determine whether or not there is a usable quantity of the drug. Kimberlin, 2004 WL 1110523, at *2 (citing Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (holding that matchbox half full of marijuana, admitted into evidence, was sufficient to support conviction)).

A police officer may be qualified to testify that a substance is marijuana. Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986). More recently, the Texas Court of Criminal Appeals has held that a police officer can give opinion testimony as a lay witness that a substance is marijuana when the opinion or inference is rationally based on his or her perceptions and observations, and the testimony is helpful to the clear understanding of the testimony or the determination of a fact issue. Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002); see Tex. R. Evid. 701. The Court in Osbourn explained, “Unlike other drugs that may require chemical analysis, marijuana has a distinct appearance and odor that are familiar and easily recognizable to anyone who has encountered it.” 92 S.W.3d at 538.

Trooper West and Officer Williams each testified that, based on their training and experience, they were familiar with the appearance and odor of marijuana. During the traffic stop of appellant, West noticed a faint smell of marijuana coming from appellant’s vehicle. Williams also testified that he smelled marijuana when he walked by the driver’s side of appellant’s vehicle.

During the open air search around appellant’s vehicle, Williams testified that his certified narcotics drug detection dog alerted to appellant’s vehicle multiple times. The dog was certified in detecting the odor of illegal narcotics, including marijuana. After the dog positively alerted to the vehicle, Trooper West and Officer Williams conducted a search of the vehicle and found a baggie containing marijuana and a small tinfoil “hitter pipe” in the center compartment of the vehicle. Both West and Williams testified that the substance in the baggie was marijuana.

Also, Trooper West’s dashboard camera videotape revealed several incriminating statements by appellant. When confronted with the marijuana from his vehicle, appellant referred to the substance as “weed,” admitted to smoking it before he had left Austin, stated he should have thrown it out the window when he saw Trooper West’s emergency lights, and acknowledged that West was “dead on” for being suspicious that appellant was hiding drugs. His statement that he “should have thrown it out when [he] saw [Trooper West’s] lights” implies that it was a usable amount that he knew was unlawful to possess.

At trial, Trooper West identified State’s Exhibit 1A as the baggie found in appellant’s vehicle, and it was admitted into evidence. Observing the substance at trial, West again identified the substance in the baggie as marijuana and testified that it was a usable quantity. The baggie containing the marijuana and tinfoil “hitter pipe” was admitted at trial for the fact-finder to examine in determining whether there was a usable quantity of marijuana.

In support of his sufficiency argument, appellant relies on Cooper v. State, 648 S.W.2d 315, 316 (Tex. Crim. App. 1983). In Cooper, an officer discovered a baggie containing loose marijuana and cigarettes, and the officer testified that he assumed the cigarettes contained marijuana because they were in the same container. Id. In finding that the officer’s testimony was insufficient, the Court noted that there was no evidence in the record that the loose marijuana was a usable quantity, and the prosecution was relying on the cigarettes to establish the element of a usable quantity of marijuana. Id. The present case is distinguishable because here both Trooper West and Officer Williams were able to observe the contents of the baggie and, based on their observations, determined that the baggie contained a usable amount of marijuana.

Appellant argues, “The prosecution tried to prove that the usable quantity of marijuana element can be assumed solely on the observations of Trooper West and Officer Williams.” However, the fact that West and Williams based their conclusions on their “observations,” as conceded by appellant, makes the present case distinguishable from the unsupported assumption in Cooper. Further, appellant misstates the evidence in the record to the extent that he suggests that the officers’ “assum[ptions]” were the only evidence that the substance was a usable quantity of marijuana. The seized marijuana was admitted into evidence, allowing the fact-finder to examine the substance in determining whether there was a usable quantity of the drug.

Appellant also argues “since both officers assumed the contraband was marijuana, it was sent to the DPS lab for testing, which the DPS lab returned with a report that stated ‘no analysis was performed.’” Appellant’s argument implies that it was sent to the lab because of the officers’ uncertainty, but there is no evidence in the record that supports that interpretation. During Trooper West’s testimony at trial, appellant’s counsel pointed out a notation in a report that stated, “Analysis will be performed on request of prosecuting attorney.” West testified that the contraband was sent to the DPS lab, and in regard to the report, he testified, “That is what they send back. That is how our lab does it now.” In other words, West indicated that was the lab’s standard procedure for handling drug evidence. Moreover, the Texas Court of Criminal Appeals has expressly held that because of marijuana’s distinct appearance and odor, expert opinion testimony and chemical testing are not necessary, and the drug can be identified by lay opinion testimony of a police officer who observed the substance. Osbourn, 92 S.W.3d at 537–38.

Lastly, appellant argues that Trooper West and Officer Williams were not qualified as expert witnesses. Notwithstanding the fact that appellant’s failure to object waived any error complained of, we note that the appellant’s complaints are identical to those raised and overruled in Osbourn. See 92 S.W.3d at 535 (holding police officer could give lay opinion testimony that substance was marijuana).

Having reviewed all the evidence presented under the respective standards of review, we conclude the evidence is both legally and factually sufficient to support the trial court’s conviction for possession of a usable quantity of marijuana. West and Williams’s testimony, based on their training, experience, and observations at the scene is sufficient to establish the element of “usable” quantity of marijuana.          See Rumsey v. State, 675 S.W.2d 517, 521 (Tex. Crim. App. 1984) (holding officers testimony that substance was believed to be marijuana was sufficient to support conviction for possession, even where State did not offer the seized marijuana into evidence). Here, in addition to the officers’ testimony, the fact-finder also had the ability to examine the contents of the baggie seized from appellant’s vehicle. We conclude that the evidence is legally sufficient for a rational trier of fact to have found the elements of possession of a usable quantity of marijuana beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 481.121; Laster, 275 S.W.3d at 517.

Weighed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and unjust. See Laster, 275 S.W.3d at 518. Moreover, no evidence was presented contradicting the opinion of Trooper West and Officer Williams. Consequently, the finding of guilt cannot be said to be against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417. We conclude that the evidence is legally and factually sufficient to support the conviction for possession of a usable quantity of marijuana.

          We overrule appellant’s third issue on appeal.

Conclusion

          We affirm the judgment of the trial court.



George C. Hanks, Jr.

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).

[1]               The 81^st Texas Legislature amended Texas Health & Safety Code Section 481.121, effective September 1, 2009. The amendment does not affect the disposition of this case. Accordingly, from this point forward, we will cite to the current statute.

[2]               The Texas Constitution gives no greater protection than the United States Constitution. See Johnson v. State, 912 S.W.2d 227, 235–36 (Tex. Crim. App. 1995). Although appellant raises separate complaints regarding the United States and Texas Constitutions, our analysis remains the same under either constitution. Consequently, because appellant addresses the federal and state cases together, we do the same.