Dwane Earl Palmer v. State ( 2019 )

NUMBER 13-18-00582-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DWANE EARL PALMER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at No. 2
of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Chew 1
Memorandum Opinion by Justice Chew
Appellant Dwane Earl Palmer appeals his jury trial conviction for possession of
marihuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. The trial court sentenced
1 Retired Eighth Court of Appeals Chief Justice David Wellington Chew, assigned to this Court by
the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE
ANN. § 74.003.
Mr. Palmer to 150 days’ confinement.
Mr. Palmer was driving in Moody, Texas 2 when he was stopped by Moody Chief
of Police Roger Kennedy because his car did not have a front license plate. Chief
Kennedy subsequently found that Mr. Palmer’s driver’s license was invalid and arrested
Mr. Palmer. An inventory search of the car led to the discovery of a bag of marihuana in
the speaker box inside the trunk. The marihuana was entered into evidence at trial and
Chief Kennedy, the State’s only witness, testified that based on his training and visual
observation, the bag contained marihuana. In one issue, Mr. Palmer contends that the
evidence is legally insufficient to support the conviction.
I. STANDARD OF REVIEW
To determine whether the evidence is sufficient, we consider all the evidence in
the light most favorable to the verdict and determine whether a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010). The fact finder is the exclusive judge of the facts, the credibility of witnesses,
and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We resolve any
evidentiary inconsistencies in favor of the judgment. Id.
Sufficiency is measured by the essential elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). “Such
2 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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a charge is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. The
essential elements of possession of marihuana are: (1) a person (2) knowingly or
intentionally (3) possesses a usable quantity of marihuana. See TEX. HEALTH & SAFETY
CODE ANN. § 481.121.
II. DISCUSSION
Mr. Palmer contends that the evidence is insufficient because there was no
evidence presented regarding what species of marihuana he possessed, and the State
relied solely on the officer’s testimony.
A. Species of Marihuana
First, Mr. Palmer argues that the Texas Court of Criminal Appeals erroneously
found that the Legislature’s definition of marihuana encompasses all genera of that plant
because “the plain meaning of the statute” defines marihuana “as a single strain of the
marijuana family of plants.” Mr. Palmer states that “scientists have now found that at least
three genera of marijuana exist, [and therefore,] the foundational finding that all marijuana
is the same is now eroded.”
Mr. Palmer concedes that under current Texas law, possession of marihuana is
illegal, even assuming there are different species of the plant. See Carmouche v. State,
540 S.W.2d 701, 703 (Tex. Crim. App. 1976); Williams v. State, 524 S.W.2d 705, 710
(Tex. Crim. App. 1975). But, Mr. Palmer asks us to construe the statute to require that
the State prove beyond a reasonable doubt that the strain of marihuana possessed is
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Cannibus sativa L. We decline to do so.
In Carmouche, citing Williams, the court stated, “the Texas Controlled
Substances Act prohibits possession of all species of marihuana.” 540 S.W.2d at 703
(citing Williams, 524 S.W.2d at 710). In Williams, addressing the same issue that the
evidence failed to show that the plant was Cannabis sativa L, the court stated, “We cannot
conclude that the Legislature of Texas intended to limit offenses relating to marihuana to
those cases in which it was shown that the species involved was sativa L. and exempt
other species, if indeed there are various species of marihuana.” Williams, 524 S.W.2d
at 710. Thus, the issue has been settled by the Texas Court of Criminal Appeals in
Carmouche and Williams. See Carmouche, 540 S.W.2d at 703; Williams, 524 S.W.2d
at 710. Accordingly, because the Texas Court of Criminal Appeals has already
determined that possession of all species of marihuana is prohibited under the statute,
the State was not required to prove the specific species of the marihuana plant possessed
by Mr. Palmer in this case. 3 See Williams, 524 S.W.2d at 710; Carmouche, 540 S.W.2d
at 703; Gonzales v. State, 190 S.W.3d 125, 130 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d) (“[A]s an intermediate appellate court, we must follow the binding precedent of
the Court of Criminal Appeals.”); see also Capuano v. State, No. 05-04-01832-CR, 2006
WL 321964, at *4 (Tex. App.—Dallas Feb. 13, 2006, no pet.) (mem. op., not designated
for publication) (“Regardless of this controversy over the number of species, the [statute]
prohibits the possession of all species and varieties of the cannabis genus or
3 Appellant invites us to reconstrue the statute and reach a conclusion contrary to the court of
criminal appeals’ interpretation of the statute. However, we are bound by the precedent set by the Texas
Court of Criminal Appeals. See Gonzales v. State, 190 S.W.3d 125, 130 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d).
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‘marijuana.’”).
B. Officer’s Testimony
Next, Mr. Palmer argues that the evidence was insufficient because the “State
used only the arresting officer’s sensory faculties purportedly to identify the seized
substance as marijuana.” It is well settled that a police officer may testify based on his
experience and training that the substance possessed is marihuana and that testimony
is sufficient to prove that the substance is marihuana. Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002); Deshong v. State, 625 S.W.2d 327, 330 (Tex. Crim. App.
1981) (concluding that the officer’s testimony alone was sufficient to prove that the
substance was marihuana); Campos v. State, 716 S.W.2d 584, 588 (Tex. App.—Corpus
Christi–Edinburg 1986, no pet.) (holding that the testimony of an experienced police
officer was sufficient to identify the substance as marihuana); see also Morales v. State,
No. 13-98-00555-CR, 2000 WL 34251157, at *14 (Tex. App.—Corpus Christi–Edinburg
Aug. 31, 2000, no pet.) (mem. op., not designated for publication) (“An experienced peace
officer may be qualified to testify that a certain green leafy substance is marihuana.”)
(citing Ward v. State, 659 S.W.2d 643, 645 (Tex. Crim. App. 1983); Houlihan v. State,
551 S.W.2d 719, 724 (Tex. Crim. App. 1977); Jordan v. State, 486 S.W.2d 784 (Tex.
Crim. App. 1972); Miller v. State, 330 S.W.2d 466 (1959)).
Here, Chief Kennedy testified that, during a search of Mr. Palmer’s vehicle, the
officers found a green leafy substance that Chief Kennedy determined to be
marihuana. Chief Kennedy stated he had seen marihuana “countless times” and
determined that the substance was marihuana based on his training and visual
observation. While showing the jury the substance found by the officers, the
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prosecutor asked Chief Kennedy to explain how he determined it was marihuana.
Chief Kennedy replied that he recognized the leaves, which are referred to as buds.
Chief Kennedy stated, “These buds are dried, and they’re put into various devices to
smoke. And you can see that they’re still—they’re still attached to the stem of the—
of the plant.” Chief Kennedy testified that the substance had “a strong odor commonly
associated with marijuana,” and said, “Fresh [unburned] marijuana has a sweet smell,
almost like sage, spice. It gives off two distinct odors.”
Viewing all the evidence in the light most favorable to the verdict, we conclude a
rational fact finder could have found that the substance found in Mr. Palmer’s car was
marihuana beyond a reasonable based on Chief Kennedy’s testimony. See Whatley, 445
S.W.3d at 166; Brooks, 323 S.W.3d at 898–99; Osbourn, 92 S.W.3d at 537 (determining
that a police officer can identify the odor of marihuana smoke and citing cases wherein
lay persons identified the odor of raw unburned marihuana); Campos, 716 S.W.2d at 588
(finding that the evidence was sufficient to show that the substance found was marihuana
solely based on officer’s testimony); see also Moody v. State, No. 13-08-00212-CR, 2009
WL 2605904, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2009, pet. ref’d) (mem.
op., not designated for publication) (stating “[t]he Texas Court of Criminal Appeals has
consistently held that experienced police officers are ‘qualified to testify that a green leafy
plant substance is marihuana’” and listing case law from the court of criminal appeals
which has done so); Morales, 2000 WL 34251157, at *14. Thus, the evidence was legally
sufficient to support the conviction. We overrule Mr. Palmer’s sole issue.
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III. CONCLUSION
We affirm the trial court’s judgment.
DAVID WELLINGTON CHEW,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
27th day of June, 2019.
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