Jeremy Jerone Johnson v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed April 18, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00296-CR
JEREMY JERONE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Cause No. 2020-0060
MEMORANDUM OPINION
Appellant Jeremy Jarone Johnson appeals his conviction for possession of
marijuana in an amount of two ounces or less, a Class B Misdemeanor. See Tex.
Health & Safety Code Ann. § 481.121(b)(1). We affirm.
BACKGROUND
Corporal Edward Ortega of the Brenham Police Department was on night
patrol duty when he saw a car driving without its taillights. Ortega, intending to
give the driver a warning, pulled the car over. The traffic stop was recorded by
Ortega’s body camera and cameras in his police vehicle. Ortega approached the
car, driven by appellant, where he smelled marijuana. Ortega also noticed ashes on
appellant, which appellant explained were from a cigarette. At this point, Ortega
discovered that appellant’s taillights were not malfunctioning, they had just not
been turned on. When Ortega performed a warrant check, he discovered appellant
had an outstanding arrest warrant for assault. Ortega took appellant into custody,
placed him in handcuffs, and did a weapons search.
Ortega then placed appellant into the back of his police vehicle to transport
appellant to the local jail. While driving appellant to the jail, Ortega again
informed appellant that he smelled marijuana. Ortega also observed appellant in
the back seat, still in handcuffs, reaching for something on his left side.
When they arrived at the jail, Ortega testified that he turned off his video
cameras, and then performed an additional, more thorough, search on appellant
before appellant was taken inside the jail. Ortega further testified that he
discovered a plastic baggy containing marijuana in appellant’s front left pocket
during this search. Appellant was taken into custody and charged with possession
of less than two ounces of marijuana.
Appellant went to trial before the bench. Ortega testified about the traffic
stop and searches as described above. Ortega then explained that he took the
baggy and its contents to the Brenham Police Department station where he
weighed and field-tested the substance inside the baggy. According to Ortega, the
field-testing established that the plant material inside the baggy was marijuana.
The Brenham Police shipped the plant material to a forensic laboratory in
Arlington, Texas using Fed Ex ground transport.
Once the plant material arrived at the laboratory, it was weighed. The
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laboratory determined that the plant material, which consisted of two buds,
weighed 1.3 grams or .04 ounces. After the forensic testing, which consumes some
of the tested material, the plant material weighed .54 grams or .02 ounces. The
testing laboratory initially used a microscope to establish that the plant material
was cannabis sativa L. or marijuana. See Tex. Health & Safety Code Ann. §
481.002(26) (defining marijuana as the plant cannabis sativa L.). The lab also
subjected the marijuana buds to gas chromatography testing which determined that
the delta 9 THC levels were sufficient for the plant material to be classified as
marijuana and not hemp under Texas law.
Appellant chose to testify during his trial. Appellant denied he had
marijuana in his pocket the night he was arrested. Appellant testified that Ortega
did not search him at the jail. Instead, appellant testified that two jailers removed
him from Ortega’s police vehicle, took him inside the building, where they stood
him with his hands against the wall for a search. According to appellant, during
the search, one of the jailers asked “Oh, what do we have here?” The jailer then
handed a baggy to Ortega. Appellant claimed that was the first time he had seen
the baggy and again denied that he had anything in his pocket that night. The
search by the jailers was not recorded.
During his closing argument, appellant pointed out the chain of custody and
the fact the evidence was shipped by a commercial carrier to the testing laboratory
and was handled by unknown persons. Appellant argued this created reasonable
doubt that the plant material admitted into evidence during the trial was the same
plant material found the night appellant was taken into custody. Appellant also
argued that the fact Ortega did not find the baggy during the initial search at the
traffic stop, and the lack of a video of the jail house searches, created reasonable
doubt whether the State met their burden to prove appellant possessed less than
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two ounces of marijuana the night of the traffic stop.
The trial court found appellant guilty as charged. The parties then agreed on
appellant’s punishment. Based on this agreement, the trial court sentenced
appellant to serve 180 days in jail, probated for eighteen months. The trial court
then reduced the agreed fine from $750.00 to $400.00. This appeal followed.
ANALYSIS
In a single issue, appellant argues that the evidence was legally insufficient
to prove beyond a reasonable doubt that he possessed a usable quantity of
marijuana.
I. Standard of Review
When reviewing the evidence to support a conviction, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Temple v. State, 390 S.W.3d
341, 360 (Tex. Crim. App. 2013); Tatro v. State, 580 S.W.3d 740, 743 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). Direct and circumstantial evidence are
treated equally. Sharif v. State, 640 S.W.3d 636, 642 (Tex. App.—Houston [14th
Dist.] 2022, no pet.) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007)). Additionally, circumstantial evidence alone can be sufficient to
establish guilt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).
During a bench trial, the trial court is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Tatro, 580 S.W.3d at 743.
When conducting a legal sufficiency review, we may not reevaluate the weight and
credibility of the evidence or substitute our judgment for that of the factfinder.
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Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018). “A court’s role on
appeal is restricted to guarding against the rare occurrence when the factfinder
does not act rationally.” Id.II. There is legally sufficient evidence that appellant possessed a usable
quantity of marijuana.
Under the Texas Health and Safety Code, a person commits an offense if the
person “knowingly or intentionally possesses a usable quantity of mari[j]uana.”
Tex. Health & Safety Code Ann. § 481.121(a). What qualifies as a usable quantity
is not statutorily defined, but the Texas Court of Criminal Appeals has stated that
for marijuana to be a “usable amount,” there must be “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) (internal quotation marks omitted). An officer’s testimony
is sufficient to establish that a substance is marijuana. See Smith v. State, 620
S.W.3d 445, 455 (Tex. App.—Dallas 2021, no pet.) (summarizing cases reaching
this conclusion). Whether a particular amount of marijuana is a usable quantity
can be proven by circumstantial evidence. Id. (citing State v. Perez, 947 S.W.2d
268, 271, n.6 (Tex. Crim. App. 1997)). A factfinder may also infer the existence
of a usable quantity of marijuana from other evidence admitted during a
defendant’s trial. Perez, 947 S.W.2d at 271 n.6.
On appeal, appellant argues the evidence is legally insufficient because
there was no direct evidence admitted during appellant’s trial that the amount
found in appellant’s pocket was a usable amount as required by statute. See Tex.
Health & Safety Code Ann. § 481.121(a) (providing that a person commits an
offense if the person “knowingly or intentionally possesses a usable quantity of
mari[j]uana.”). While direct evidence on whether the amount at issue in a case
qualifies as a usable amount may be the best practice, it is not required. See Perez,
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947 S.W.2d at 271 n.6 (stating factfinder may infer existence of usable quantity of
marijuana from other admitted evidence); Smith, 620 S.W.3d at 455 (stating usable
quantity can be proven by circumstantial evidence).
Next, appellant points out that the Court of Criminal Appeals has held that
trial courts can take judicial notice or infer that possession of one fourth ounce of
marijuana is a usable amount. See Carmouche v. State, 540 S.W.2d 701, 702 (Tex.
Crim. App. 1976) (stating Legislature recognized one fourth ounce of marijuana
qualified as a usable amount); Lejeune v. State, 538 S.W.2d 775, 778 (Tex. Crim.
App. 1976) (“Our holding today does not draw a boundary line between quantities
of mari[j]uana below a quarter of an ounce of mari[j]uana which in the future
could properly be judicially noticed or inferred as a ‘usable quantity’ and those
which could not.”). He then points out that the amount at issue here is significantly
less than one fourth ounce of marijuana. Appellant’s argument continues by
pointing out that section 481.002(26) of the Health and Safety Code exempts from
the definition of marijuana certain specified items including “the mature stalks of
the plant or fiber produced from the stalks,” “sterilized seeds of the plant,” and
hemp as defined in the Agriculture Code. See Tex. Health & Safety Code Ann. §
481.002(26) (A) – (F). Then, appellant asserts that the State offered no testimony
that Ortega or the State’s expert chemist, Dr. Andrew Armstrong, excluded those
items before weighing the plant material found in appellant’s pocket. Appellant
then speculates that, if those items had been excluded, the plant material might
have weighed less. Even without those items excluded, appellant argues the
amount proven at trial, far less than the amounts addressed by the Court of
Criminal Appeals in Lejeune and Carmouche, was insufficient to prove the usable
amount element beyond a reasonable doubt. We disagree that the State failed to
meet its burden.
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In making his argument, appellant overlooks section 481.184 of the Health
and Safety Code which provides that the State is not required to negate the
existence of the statutory exemptions found in section 481.002(26). See Tex.
Health & Safety Code Ann. § 481.184(a). The statute instead places the burden on
the party seeking the benefit of the exemptions to introduce evidence on the
existence of the exempted items. See id.; Doggett v. State, 530 S.W.2d 552, 555–
56 (Tex. Crim. App. 1975) (holding that statutory exemptions “are in the nature of
exceptions and that the burden of going forward with the evidence pertaining
thereto rests upon the person claiming their benefit”); Nowling v. State, 801
S.W.2d 182, 185 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (same).
Appellant introduced no evidence that the plant material found in appellant’s
pocket contained any material found on the list of statutory exemptions.
The evidence that is in the record, however, is legally sufficient to meet the
State’s burden to prove the marijuana found in appellant’s pocket was a usable
quantity. State’s Exhibits 1 and 2 were photographs taken by Ortega and they were
admitted without objection. Ortega testified that State’s Exhibit 1 showed the
marijuana he found in appellant’s pocket in a container on a scale. State’s Exhibit
2 is a different view of the scale and marijuana. State’s Exhibit 2 shows two
distinct marijuana buds. Ortega testified that this was the marijuana he found in
appellant’s pocket.
Dr. Armstrong testified that his laboratory weighed the plant material sent
by the Brenham Police Department. Armstrong testified that, prior to forensic
testing, the plant material weighed 0.04 ounce, plus or minus 0.01 ounce. His
records, which were admitted into evidence as State’s Exhibit 5, reported the pre-
testing weight as 1.09 grams, plus or minus 0.02 grams. Armstrong then testified
about the testing performed on the plant material, which consumed some of the
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plant material. After the testing, the remainder weighed 0.02 ounce, plus or minus
0.01 ounce, or 0.59 gram, plus or minus .02 gram. This remainder was returned to
the Brenham Police Department. Based on the testing done on the plant material,
Armstrong concluded that it was marijuana and that its THC concentration was
above the minimum level for the plant material to be classified as marijuana and
not hemp under Texas law. This quantity of marijuana is the same or more than
amounts previously found legally sufficient as a usable amount. See e.g. Mitchell
v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (holding that .0074 grams,
found in a half-full matchbox, was a usable amount of marijuana); Parson v. State,
432 S.W.2d 89, 91 (Tex. Crim. App. 1968) (1.41 grams, found in a prescription
bottle, held to be a usable amount); Tuttle v. State, 410 S.W.2d 780, 782 (Tex.
Crim. App. 1966) (.63 gram, sufficient for a small cigarette, determined to be
usable amount); Spector v. State, 746 S.W.2d 946, 949–50 (Tex. App.—Austin
1988, pet. ref’d) (.19 gram held to be usable amount).
We conclude that the evidence, detailed above, was legally sufficient to
support the trial court’s finding that appellant possessed a usable amount of
marijuana in the amount of two ounces or less. See Perez, 947 S.W.2d at 271 n.6
(stating that factfinder may infer existence of usable quantity of marijuana from
other admitted evidence). We overrule appellant’s single issue on appeal.
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CONCLUSION
Having overruled appellant’s single issue on appeal, we affirm the trial
court’s judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Wilson.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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