in the Matter of R. R., a Juvenile

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN THE MATTER OF R.R., No. 08-12-00284-CV
A JUVENILE. §
Appeal from the
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65th District Court
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of El Paso County, Texas
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(TC#0900695)
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OPINION
Appellant, R.R., a juvenile, was charged by petition with the delinquent conduct of
possession of less than two ounces of marijuana in a drug-free zone. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.121(a), (b)(1), 481.134 (West 2010). After a hearing, the trial court
adjudicated Appellant delinquent. Following a disposition hearing, Appellant was placed on
probation until his eighteenth birthday. On appeal, Appellant challenges the trial court’s finding
that he engaged in delinquent conduct by possessing two ounces or less of marijuana. In a single
issue, Appellant argues the evidence is legally insufficient to support his conviction. We affirm.
BACKGROUND
At the adjudication hearing, Esperanza Garcia, a class guard monitor at San Elizario High
School in El Paso County, Texas, testified that she observed Appellant with other boys by the side
of the school’s field house on May 24, 2012. Garcia saw Appellant smoking and passing what
appeared to be a pen cap to the other boys. Garcia told Alfonso Sepulveda, a security officer at
the school, what she had seen and asked him to stop the boys. Appellant was stopped, and when
he denied smoking, Garcia asked to smell Appellant’s hands which he allowed her to do. Garcia
testified that she smelled the odor of marijuana on Appellant’s hands.
Garcia and Sepulveda started to walk Appellant to the administrator’s office and Appellant
became very nervous and started to shake and brush something off of his pant leg. Garcia
observed a folded piece of white paper fall from Appellant’s pants. She watched Sepulveda pick
up and open the piece of paper and saw that it contained a green weed substance which she
recognized to be marijuana.1
Sepulveda testified that he smelled an odor of marijuana on Appellant’s hands and that
Appellant’s eyes were a little glassy. Appellant started to stall, fidget, and pull on his pant legs
when they started to walk to the administrator’s office. At that point, Sepulveda saw a white
folded-up paper fall from Appellant’s pant area. Sepulveda picked up and opened the paper
which contained a green leafy substance he believed to be marijuana.2
El Paso Sheriff’s Office Deputy Carlos Muñoz testified that his drug training consisted of
the identification of different drugs including marijuana, as well as sight recognition of the general
amounts of marijuana. As a deputy, Muñoz had identified marijuana ten to fifteen times. During
his prior position as a detention officer in the jail annex, Muñoz identified marijuana two to three
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Garcia testified that she had smelled and seen marijuana before.
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Sepulveda testified he had seen marijuana hundreds of times while working with kids since 1980. He was familiar
with the smell of marijuana and as a former tobacco user, he knew the difference between the smell of marijuana and
tobacco.
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times. On May 24, 2012, Deputy Muñoz was dispatched to San Elizario High School in reference
to a student’s possession of narcotics.
At the school, Deputy Muñoz spoke to the hall monitor and the security guard among
others and was advised that Appellant possessed marijuana. Deputy Muñoz viewed the green
leafy substance contained in the folded piece of white paper and recognized it to be marijuana.
Deputy Muñoz testified the marijuana appeared to be less than two ounces of marijuana and that it
was a usable amount. The substance field tested positive for marijuana and weighed less than two
ounces. Deputy Muñoz subsequently arrested Appellant.
DISCUSSION
Appellant contends the evidence is legally insufficient to sustain the trial court’s finding that
he engaged in delinquent conduct. Specifically, he argues the State’s evidence was not legally
sufficient to sustain the trial court’s delinquent conduct finding because the State failed to prove
that the substance was marijuana and that the marijuana weighed two ounces or less. We
disagree.
Standard of Review
Although juvenile appeals are categorized as civil cases, we use the same standards
applicable in criminal appeals when reviewing challenges to the sufficiency of the evidence
supporting a finding that a juvenile engaged in delinquent conduct. See In re J.R.C.S., 393
S.W.3d 903, 909 (Tex.App. – El Paso 2012, no pet.); In re H.G.G.D., 310 S.W.3d 43, 45 (Tex.
App. – El Paso 2010, no pet.); In re M.D.T., 153 S.W.3d 285, 287 (Tex.App. – El Paso 2004, no
pet.). In a legal sufficiency analysis, we view the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the essential elements of
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the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2788-89, 61 L. Ed. 2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001).
On review, we do not resolve any conflicts of fact or re-evaluate the weight and credibility of the
evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); In re H.G.G.D., 310 S.W.3d
at 46. Instead, our duty is to determine whether the explicit and implicit findings of fact made by
the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable
to the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). In doing so,
any evidentiary inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d
839, 843 (Tex.Crim.App. 1991).
Possession of Marijuana
To prove that Appellant engaged in delinquent conduct, the State had to establish that
Appellant knowingly or intentionally possessed a usable quantity of marijuana in the amount of
two ounces or less. TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010); TEX.
FAM. CODE ANN. § 51.03(a)(1) (West 2008). Accordingly, the State bore the burden to prove
beyond a reasonable doubt that Appellant (1) exercised care, control, and management over the
contraband and (2) that he knew he possessed contraband. Brown v. State, 911 S.W.2d 744, 747
(Tex.Crim.App. 1995).
First, Appellant contends the State failed to prove that the substance was marijuana. He
complains the evidence is legally insufficient because the State: (1) only offered the testimony of
Deputy Muñoz, a rookie officer; (2) failed to offer the testimony of an expert such as a lab analyst;
(3) did not offer the alleged marijuana or photos of the marijuana into evidence; and (4) failed to
introduce the chain of custody for the marijuana into evidence. However, we find Appellant’s
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arguments unpersuasive. In Osbourn v. State, 92 S.W.3d 531 (Tex.Crim.App. 2002), the Court of
Criminal Appeals held that because of marijuana’s distinct appearance and odor, expert testimony
and chemical testing are unnecessary to prove that a substance is marijuana. Id. at 537-38.
Instead, the substance can be identified through the lay opinion of a police officer or other
witnesses familiar with the odor of marijuana. Id. Thus, the State was not required to call an
expert witness, offer the alleged substance or photos of it at the adjudication hearing, and present
the chain of custody for the marijuana into evidence to prove that the substance was in fact
marijuana.
Here, Deputy Muñoz testified that he was trained to identify drugs including marijuana.
Although Deputy Muñoz testified that he was still training with his field training officer on May
24, 2012, he explained that as a deputy he came across marijuana quite a few times. In particular,
he stated that he had identified substances to be marijuana on ten to fifteen occasions. He had also
previously identified marijuana on two to three occasions while working as a detention officer at
the jail annex. When Deputy Muñoz viewed the green leafy substance contained in the folded
piece of white paper, he recognized it to be marijuana. When he smelled the substance it smelled
like marijuana. Deputy Muñoz testified that he conducted a field test on the substance which
tested positive for marijuana.
Moreover, lay witnesses Garcia and Sepulveda testified that they were personally familiar
with marijuana. Garcia and Sepulveda both smelled an odor of marijuana on Appellant’s hands.
Garcia and Sepulveda recognized the green substance contained in the white paper that fell from
Appellant’s pant area as marijuana. When viewed in the light most favorable to the trial court’s
finding, we conclude this evidence was legally sufficient for a rational trier of fact to have
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determined that the alleged substance was marijuana.
Next, Appellant argues the State failed to prove that the weight of the marijuana was two
ounces or less because during cross-examination, Deputy Muñoz could not recall the approximate
amount of the marijuana when he weighed it on the digital scale. He also maintains that it would
have been helpful to have the marijuana or photos of the marijuana introduced into evidence in
order to verify that the deputy’s testimony was accurate. The State responds that the deputy’s
testimony satisfies the elemental requirement that the marijuana be less than two ounces and that it
is a usable amount. We agree with the State.
While Appellant correctly notes that Deputy Muñoz could not recall the approximate
weight of the marijuana when he weighed it on a digital scale, he believed that Appellant was
charged with a Class B misdemeanor, possession of marijuana, under two ounces. Furthermore,
on direct-examination, Deputy Muñoz testified that he was trained to recognize by sight the
general amount of marijuana. By sight, the amount of marijuana appeared to be less than two
ounces to Deputy Muñoz. According to Deputy Muñoz, this was a usable amount of marijuana.
Deputy Muñoz also testified that he weighed the marijuana and that it weighed less than two
ounces. When viewed in the light most favorable to the trial court’s finding, Deputy Muñoz’s
testimony was sufficient for a rational trier of fact to determine that the amount of marijuana
involved was a usable amount within and weighed two ounces or less. See Martinez v. State, No.
04-09-00029-CR, 2009 WL 3789880, at *3, 4 (Tex.App. – San Antonio Nov. 11, 2009, no pet.)
(holding officers’ testimony that substance is a usable quantity of marijuana is sufficient to support
conviction where State did not offer any physical evidence of the marijuana); TEX. HEALTH &
SAFETY CODE ANN. § 481.121(b) (West 2010).
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Having considered Appellant’s arguments and reviewed the evidence in the light most
favorable to the trial court’s finding, we conclude the evidence was legally sufficient to show that
Appellant engaged in delinquent conduct by knowingly or intentionally possessing two ounces or
less of marijuana. Issue One is overruled.
CONCLUSION
We affirm the judgment of the trial court.
GUADALUPE RIVERA, Justice
December 27, 2013
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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