                                    NO. 07-02-0098-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                   FEBRUARY 20, 2004

                           ______________________________


                              SAMMY M. SIMS, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

               NO. 2001-474231; HONORABLE DRUE FARMER, JUDGE

                          _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.


                                          OPINION


       Appellant Sammy Sims appeals from his conviction for possession of marijuana.

By three issues he asserts that (1) the trial court erred in admitting scientific evidence and

expert testimony without a proper predicate, (2) the evidence was factually and legally

insufficient to support the jury’s verdict, and (3) the trial court erred in admitting evidence
of an extraneous offense and further erred by failing to sua sponte include a reasonable

doubt instruction in the punishment charge. We affirm.


                                      BACKGROUND


       Approximately 10:40 p.m. during the evening of March 11, 2001, appellant was

driving a vehicle in Lubbock, Texas, when he was stopped by Lubbock Police Officer Chad

Brouillette for driving with the vehicle’s bright headlights on while facing oncoming traffic.

Appellant pulled his vehicle into a private parking lot and parked the vehicle. After

appellant exited the vehicle, Brouillette smelled the odor of alcohol on appellant’s breath.

Brouillette then began administering field sobriety tests to appellant. Appellant attempted

to perform some of the tests but did not perform them according to Brouillette’s

instructions. Appellant then refused to perform further field sobriety tests, at which point

Brouillette arrested appellant. Brouillette asked appellant if he wanted to sign a vehicle

release form, which would have allowed appellant to leave his vehicle in the parking lot.

Appellant declined to sign the form. Brouillette then informed appellant that his vehicle

would be towed and, in accordance with department procedures, performed an inventory

search of appellant’s vehicle. During the inventory search, Brouillette noted the strong

odor of marijuana in appellant’s vehicle. Brouillette discovered the remnant of a used

“cigar blunt” in the vehicle’s ashtray. Brouillette believed the blunt contained marijuana and

he field-tested it. According to the results of the field test, the cigar blunt contained

marijuana.




                                             -2-
        Appellant was charged with possession of marijuana. He pled not guilty. A jury

found appellant guilty and sentenced him to 180 days in jail, probated, and a $1000.00

fine.


        Appellant presents three issues on appeal. His first issue urges that the trial court

erred in admitting scientific evidence and expert testimony without proper predicate. His

second issue argues that the evidence was legally and factually insufficient to support the

verdict. By his third issue, appellant contends that the trial court erred in admitting

evidence of an extraneous offense, and further erred in failing to include an instruction in

the punishment charge regarding the proper consideration of extraneous offense evidence.


                       ISSUE ONE: ADMISSIBILITY OF EVIDENCE


        By his first issue, appellant argues that the trial court erred in admitting the results

of analyses conducted by the State’s expert witness identifying the substance in the cigar

blunt as marijuana.      Appellant also contends that the trial court erred in admitting

Brouillette’s testimony concerning the results of a field test identifying the substance as

marijuana. In both cases, appellant argues that there was no evidence that (1) the

underlying scientific theory used to identify the substance was valid, (2) the technique

applying the theory was valid, (3) the technique was properly applied on the occasion in

question, and the admission of such evidence violated TEX . R. EVID . 702. See Hartman

v. State, 946 S.W.2d 60, 62 (Tex.Crim.App. 1997); Kelly v. State, 824 S.W.2d 568, 573

(Tex.Crim.App. 1992). The State responds that error was not preserved in regard to the

testimony objected to by appellant, and any error in regard to the admission of the


                                              -3-
evidence was harmless because the substance was identified as marijuana by other

means without objection.


       During Brouillette’s direct examination by the State, the officer was asked whether

he field-tested the material found in the cigar blunt. Appellant objected to testimony

concerning the field test and its results on the basis that the test had not been shown to

be scientifically reliable or that it was performed properly. The objection was overruled,

and Brouillette testified as to the results of his field test. In addition, however, the officer

testified without objection at various times that the material he found in the cigar blunt was

marijuana. For example, the following testimony was given without objection:


       Q      Once you began the inventory search, Officer, what was the first thing
              that you noticed?
       A      I noticed a strong odor of marijuana in the vehicle . . . I did locate what
              – a cigar blunt is what it’s called . . . they take the tobacco out of a
              cigar and stuff it with marijuana . . . there was still a usable amount of
              marijuana inside that cigar blunt in the vehicle.
                                           ******
       Q      Now, the marijuana that you found in the ashtray, did it appear that it
              was old marijuana?
       A      It was in the ashtray . . . It didn’t appear like it had been in there that
              long.
                                           ******
       Q      Officer, after you found the marijuana, did you ever make any mention
              to the defendant that you found marijuana in the car?
       A      No, I didn’t.
                                           ******
       Q      Officer, have you had experience in your 4 years as an LPD officer
              and your life’s experience to see and smell marijuana?
       A      Yes, I have.


                                              -4-
         Q     Based upon your experience, did this appear to be marijuana?
         A     Yes, it did. It appeared to smell like it and look like it.
         Q     And based upon your experience as a police officer, was this
               defendant in possession of the marijuana?
         A     Yes, he was.
         Q     Also, Officer, based upon your experience, is this amount, is this a
               usable amount of marijuana?
         A     Yes, it is.


         The officer also identified State’s exhibit 2-A as the cigar blunt he found in

appellant’s vehicle.


         The State called DPS chemist Scott Williams to testify about the results of the

DPS’s analysis of the material in the cigar blunt. Williams identified exhibit 2-A. The State

offered the exhibit into evidence, whereupon appellant’s counsel objected to admission of

the exhibit because of insufficient predicate as to the reliability of the method of analysis

performed. The objection was overruled. Williams then testified, without objection, that

the DPS analysis showed the cigar blunt to contain .25 grams of marijuana.


         An error in admission of evidence is cured where substantially the same evidence

comes in elsewhere without objection. See Hudson v. State, 675 S.W.2d 507, 511

(Tex.Crim.App. 1984).        Assuming, arguendo, that the complained-of evidence was

inadmissible and that objection was timely made, appellant still did not preserve error

because the same or substantially the same evidence was admitted without objection

through testimony from both Brouillette and Williams. Id. We overrule appellant’s first

issue.


                                               -5-
                    ISSUE TWO: SUFFICIENCY OF THE EVIDENCE


       By his second issue, appellant challenges the legal and factual sufficiency of the

evidence to support a finding that appellant intentionally or knowingly possessed

marijuana.


       When reviewing challenges to both the legal sufficiency and the factual sufficiency

of the evidence to support the verdict, we first review the legal sufficiency challenge.

Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). If the evidence is legally

sufficient to support the verdict, we then review the factual sufficiency challenge, if one is

properly raised. Id. Our review is taken being mindful that the jury is the sole judge of the

weight and credibility of the evidence.       Santellan v. State, 939 S.W.2d 155, 164

(Tex.Crim.App. 1997).


       The evidence is legally sufficient if, after viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979); Clewis, 922 S.W.2d at 132. All the evidence is

reviewed, but evidence that does not support the verdict is disregarded. See, e.g.,

Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App. 1991).


       A factual sufficiency review of the evidence begins with the presumption that the

evidence supporting the jury’s verdict was legally sufficient under the Jackson test. Clewis,

922 S.W.2d at 134. Factual sufficiency review is accomplished without viewing the

evidence in the light most favorable to the prosecution, as the evidence is viewed in

                                             -6-
determining legal sufficiency. Id. The evidence is factually sufficient to support the verdict

if the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Id. Stated otherwise, the evidence is not factually sufficient to support

a conviction if the appellate court determines, after viewing all the evidence, both for and

against the finding in a neutral light, that the proof of guilt is so obviously weak as to

undermine the confidence in the jury’s determination, or the proof of guilt, although

adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23

S.W.3d 1, 11 (Tex.Crim.App. 2000).


       To prove unlawful possession of a controlled substance, the State must show that

appellant exercised care, control or management over the contraband and that appellant

knew the substance was a controlled substance. Humason v. State, 728 S.W.2d 363, 365-

66 (Tex.Crim.App.1987). Mere presence at a place where narcotics are found is not

sufficient to convict a person of possession in the absence of other evidence. Moss v.

State, 850 S.W.2d 788, 794 (Tex.App.--Houston [14th Dist.] 1993, pet. ref’d). When the

accused is not shown to have had exclusive possession of the place where the contraband

was found, the evidence must affirmatively link the accused to the contraband. Humason,

728 S.W.2d at 366. Evidence which creates a reasonable inference that the accused knew

of the existence of and exercised control over the controlled substance will suffice to meet

the burden of the State. Dickey v. State, 693 S.W.2d 386, 389 (Tex.Crim.App. 1984).


       Examining the legal sufficiency of the evidence, we note that the evidence showed

that (1) appellant was the driver and sole occupant of the vehicle, (2) the marijuana was

found in a location which afforded appellant convenient access to it, (3) the marijuana

                                             -7-
emitted a recognizable odor, (4) appellant knew what marijuana smelled like from previous

exposure to it, (5) appellant made a res gestae statement which could have been

interpreted as showing a consciousness on appellant’s part of the presence of drugs in the

vehicle. Such evidence goes beyond appellant’s mere presence in the vehicle, and

comprises links from which a rational jury could have found that appellant’s connection with

the marijuana was knowing and intentional. See Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App. 1995).      The evidence was legally sufficient to prove that appellant

knowingly possessed the marijuana.


       In regard to his factual sufficiency challenge, appellant directs our attention to the

following evidence: appellant testified that (1) he did not know the marijuana was in the

vehicle, (2) he did not notice the odor of marijuana in the vehicle, (3) he did not smoke the

marijuana, (4) he did not have exclusive control over the vehicle the day he was stopped,

and (5) another person known to appellant as a marijuana smoker had been in the vehicle

that day. Appellant also refers us to evidence that the vehicle was owned by appellant’s

wife, not appellant, and his wife’s testimony that appellant had not smoked marijuana since

they had gotten married one year and seven months ago. Appellant also argues that his

res gestae statement to the effect that he did not do drugs tended to exculpate him.


       After viewing all the evidence both for and against the jury’s finding in a neutral light,

and being mindful to be appropriately deferential to the jury’s resolution of credibility and

weight determinations, 1 we conclude that the evidence of guilt is neither so obviously weak



       1
           Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998).

                                              -8-
as to undermine our confidence in the jury’s determination, nor so greatly outweighed by

contrary evidence that the verdict is clearly wrong and unjust.


       We overrule appellant’s second issue.


              ISSUE THREE: EVIDENCE OF EXTRANEOUS OFFENSES
                               AND JURY CHARGE ERROR


       By his third issue, appellant argues that the trial court erred in (1) admitting evidence

of appellant’s alleged intoxication on the occasion in question as an extraneous offense,

and (2) failing to sua sponte include a “reasonable doubt” instruction in the jury charge on

punishment.


                             A. Extraneous Offense Evidence


        The State contends that the evidence of appellant’s intoxication was admissible

as “same transaction contextual evidence.” See Mayes v. State, 816 S.W.2d 79, 86

(Tex.Crim.App. 1991). In the alternative, the State argues that admission of the evidence,

if error, was harmless.


       Generally, evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. TEX . R. EVID .

404(b). However, extraneous offense evidence is admissible for other purposes. Id.




                                              -9-
       “Same transaction contextual evidence” refers to evidence of other offenses

connected with the primary offense, which is admissible when the evidence is necessary

for the State to logically present evidence of the charged offense. Garza v. State, 2

S.W.3d 331, 335 (Tex.App.–San Antonio 1999, pet. ref’d). Evidence of extraneous

offenses is considered same transaction contextual evidence only when the charged

offense would make little or no sense without also admitting evidence of the extraneous

conduct. Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000). Stated differently, the

evidence of extraneous conduct must be so blended or connected with the offense for

which the defendant is being tried that they form an indivisible criminal transaction such

that full proof of one cannot be given without also showing the other. Buchanan v. State,

911 S.W.2d 11, 15 (Tex.Crim.App. 1995).


       We review the trial court’s actions regarding the admissibility of such evidence under

an abuse of discretion standard.          Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990). As long as the trial court’s ruling was within the “zone of reasonable

disagreement,” an appellate court will not find error. Id.


       At trial, appellant challenged Brouillette’s testimony concerning results of the search

of appellant’s vehicle, in part, on the basis that the search was not a valid inventory search.

When an inventory search is challenged, the burden is on the State to prove the lawfulness

of the search. Ward v. State, 659 S.W.2d 643, 646 (Tex.Crim.App. 1983).


       Because appellant challenged the vehicle search and its fruits, evidence of the facts

justifying the search was admissible. Moreover, the trial court could have concluded that


                                             -10-
the police officer’s testimony relating appellant’s actions immediately after appellant

stopped his vehicle to a pattern indicating awareness of the marijuana in the vehicle was

relevant to whether appellant knew of the marijuana. The same can be said about the

officer’s testimony as to appellant’s conduct and awareness during the episode and the

video of appellant during the field testing outside his car: the trial court could have

concluded that such evidence was relevant to appellant’s mental status and any limitations

or condition which would have affected his ability to discern the odor of burned marijuana

which the officer testified was present in appellant’s vehicle, and thus relevant to

appellant’s knowledge of the marijuana itself. Accordingly, the trial court could have

concluded that evidence of the facts surrounding appellant’s detention and arrest for DWI

was same transaction contextual evidence. The trial court did not abuse its discretion in

admitting the evidence. See Wynne v. State, 676 S.W.2d 650, 654-55 (Tex.App.–Fort

Worth 1984, pet. ref’d).


                B. Reasonable Doubt Instruction in Punishment Charge


      Evidence submitted by the State at the punishment phase of trial consisted of

“resubmit[ting]” evidence of appellant’s prior DWI conviction in Cameron County. The

evidence had been admitted without objection during guilt-innocence after appellant

admitted his conviction. Appellant, nevertheless, references Huizar v. State, 12 S.W.3d

479 (Tex.Crim.App. 2000), and argues that the trial court erred in failing to include a

reasonable doubt instruction in the jury charge on punishment sua sponte. See id. at 484-

85. In making his argument, appellant references evidence of his alleged intoxication and

his arrest for DWI which was admitted during guilt-innocence, and which the judge

                                           -11-
instructed the jury during guilt-innocence to consider only for contextual purposes. The

State does not contest appellant’s assertion that the absence of the instruction constitutes

error.


         The reasonable doubt standard is applicable when the jury or judge is considering

evidence of extraneous crimes or bad acts which is offered at punishment. See TEX . CRIM .

PROC . CODE ANN . art. 37.07(3) (Vernon Supp. 2004); Huizar, 12 S.W.3d at 482. The trial

court must give a reasonable doubt instruction at punishment, when applicable, even in the

absence of an objection by the defendant. Id. at 484. If the defendant does not timely

object to absence of the instruction, however, the error is reviewed to determine if it

resulted in such egregious harm that the defendant was denied a fair and impartial trial.

See id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). In performing such

review we consider the entire record and all the relevant information in it, including the

state of the evidence, the probative weight of the evidence, argument of counsel, and the

jury charge as a whole. See Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996).


         The evidence of appellant’s prior DWI conviction which the State re-offered at

punishment was not controverted. Appellant admitted the conviction during his testimony

at guilt-innocence.


         During the guilt-innocence phase appellant admitted that he had been drinking

during the day before his arrest, although he denied that he would drink and drive (thus the

State’s introduction of his prior DWI conviction for impeachment). Appellant’s arrest was

on videotape and the tape was admitted as an exhibit for the jury to consider. The trial


                                            -12-
court instructed the jury during guilt-innocence that evidence of alcohol, and intoxication,

was to be considered only as contextual evidence.2 During punishment summation the

prosecutor argued that if the jury believed beyond a reasonable doubt that appellant was

driving while intoxicated on the occasion he was stopped and arrested, “you can consider

that,” effectively arguing the instruction which was absent from the charge.            The

prosecutor’s summation at punishment did not overly emphasize appellant’s allegedly

intoxicated condition at the time of his arrest.


         Assuming, arguendo, that the trial court erred in failing to give a reasonable doubt

instruction even though the only evidence offered by the State in front of the jury at

punishment was of appellant’s uncontroverted DWI conviction, this record does not reflect

that the error was such as to be classified as egregious. See Huizar, 12 S.W.3d at 484;

Almanza, 686 S.W.2d at 171. Appellant’s third issue is overruled.


                                       CONCLUSION


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                         Phil Johnson
                                                         Chief Justice

Do not publish.




         2
        See Garza v. State, 2 S.W.3d 331, 335 (Tex.App.–San Antonio 1999, pet. ref’d);
Norrid v. State, 925 S.W.2d 342, 349 (Tex.App.--Fort Worth 1996, no pet.).

                                             -13-
