Opinion filed August 21, 2015




                                         In The


          Eleventh Court of Appeals
                                     __________

                                No. 11-13-00266-CR
                                    __________

                      RICARDO RAMIREZ, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the County Court at Law
                                Midland County, Texas
                            Trial Court Cause No. 140774


                      MEMORANDUM OPINION
      The jury found Ricardo Ramirez guilty of the offense of possession of
marihuana in the amount of two ounces or less.1 The trial court assessed punishment
at confinement for 180 days in the Midland County jail, probated for twelve months,
and a $500 fine. In his sole issue on appeal, Appellant challenges the sufficiency of
the evidence to support his conviction. We affirm.


      1
       See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (West 2010).
                                 I. The Charged Offense
      The State charged Appellant by information with the offense of possession of
two ounces or less of marihuana. A person commits the offense of possession of
marihuana if he knowingly or intentionally possesses a usable quantity of marihuana.
HEALTH & SAFETY § 481.121(a). Possession of two ounces or less of marihuana is
a Class B misdemeanor punishable by confinement in jail for a term not to exceed
180 days, a fine not to exceed $2,000, or both. See id. § 481.121(b)(1); TEX. PENAL
CODE ANN. § 12.22 (West 2011).
                                   II. Evidence at Trial
      Xavier Morales, who was an officer with the Midland Police Department at
the time of the offense, testified that he stopped next to Appellant at a stoplight at a
railroad crossing. When the light changed, the railroad crossing gate began to rise,
and Appellant drove through the crossing before the gate had completely risen.
Officer Morales testified that that was a traffic violation, and he activated his lights
and pulled Appellant over.2 Officer Morales asked Appellant for permission to
search his vehicle, and Appellant consented. Officer Morales called and waited for
backup before he searched Appellant’s vehicle. While Officer Morales searched
Appellant’s vehicle, Appellant shouted that “the weed was in the center console.”
Officer Morales found a small plastic baggie inside a cup holder in front of the center
console and arrested Appellant for possession of marihuana.
      Officer Morales testified that he was familiar with marihuana and its
characteristics as a result of training he had received in the police department and in
school. Officer Morales testified that, in his opinion, through his training and
experience, he believed the substance in the baggie to be marihuana. Marissa Silva,
a chemist with the Texas Department of Public Safety laboratory in Midland,
testified as the State’s expert witness, but she was not the chemist who observed the


      2
       See TEX. TRANSP. CODE ANN. § 545.251(d) (West 2011).
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substance in the baggie under a stereoscope. The trial court did not allow Silva to
testify about the other chemist’s report, but the trial court did allow Silva to offer her
lay opinion. Silva testified that the substance looked and smelled like marihuana.
But Silva also said she could not definitively state whether the substance was
marihuana until after she had observed it under a stereoscope.
      Erica Lujan, Appellant’s girlfriend, owned the vehicle that Appellant drove
on the night of the offense. Lujan testified that she cleaned out the vehicle two or
three days before the date of the offense, that “[p]robably no one” drove it besides
Appellant after she cleaned it out, and that no one else had access to it. Lujan
testified that there was no marihuana in the vehicle when she loaned it to Appellant.
                                III. Standard of Review
      We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence in the light
most favorable to the jury’s verdict and decide whether any rational trier of fact
could have found each element of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319. The trier of fact holds the responsibility to resolve conflicts in the
testimony fairly, weigh the evidence, and draw reasonable inferences from basic
facts to ultimate facts. Id. We are to resolve inconsistencies in the testimony in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
We measure sufficiency of the evidence against a hypothetically correct jury charge.
Id. at 404. A hypothetically correct jury charge “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.” Id. (quoting
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

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                                    IV. Analysis
      Appellant argues that the evidence was insufficient to support his conviction
because the State offered no expert testimony to prove that the substance was
marihuana and because no evidence existed that Appellant possessed a usable
quantity.   The Court of Criminal Appeals has held that a police officer’s
identification of marihuana is admissible as a lay opinion. Osbourn v. State, 92
S.W.3d 531, 537–38 (Tex. Crim. App. 2002). “Unlike other drugs that may require
chemical analysis, marihuana has a distinct appearance and odor that are familiar
and easily recognizable to anyone who has encountered it.” Id. at 538. Further,
Texas courts have held an officer’s lay opinion to be sufficient to establish that a
substance is marihuana. See, e.g., Deshong v. State, 625 S.W.2d 327, 329–30 (Tex.
Crim. App. [Panel Op.] 1981) (concluded officer’s testimony that the substance he
found in defendant’s car was marihuana was sufficient to prove that the substance
was marihuana); Carmouche v. State, 540 S.W.2d 701, 703 (Tex. Crim. App. 1976)
(officer’s testimony that the cigar box contained marihuana was sufficient to
establish that the substance found in the cigar box was marihuana); Boothe v.
State, 474 S.W.2d 219, 221 (Tex. Crim. App. 1971) (held testimony of two
experienced narcotics officers that the substance found appeared to them to
be marihuana was sufficient for the jury to determine that it was marihuana);
Thompkins v. State, No. 02-12-00526-CR, 2013 WL 5517875, at *5 (Tex. App.—
Fort Worth Oct. 3, 2013, pet. ref’d) (mem. op., not designated for publication) (held
evidence was sufficient where two police officers and one investigator testified that
they identified the substance as marihuana based on their training and experience);
Mendoza v. State, No. 04-11-00357-CR, 2011 WL 6209178, at *2 (Tex. App.—
San Antonio Dec. 14, 2011, no pet.) (mem. op., not designated for publication) (held
officer’s testimony that substance was marihuana was sufficient to support the
conviction); Moody v. State, No. 13-08-00212-CR, 2009 WL 2605904, at *3–4 (Tex.
App.—Corpus Christi Aug. 26, 2009, pet. ref’d) (mem. op., not designated for
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publication) (held evidence was sufficient where three officers identified substance
as marihuana and marihuana was admitted as evidence); Campos v. State, 716
S.W.2d 584, 588 (Tex. App.—Corpus Christi 1986, no pet.) (held officer’s
testimony that the substance was a usable amount of marihuana was sufficient to
show that the substance was marihuana; however, evidence was insufficient to link
defendants to marihuana).
        Additionally, a jury can find that the amount of marihuana a defendant
possessed was a usable quantity through circumstantial evidence or inferences drawn
from evidence of the amount of marihuana possessed. State v. Perez, 947 S.W.2d
268, 271 n.6 (Tex. Crim. App. 1997); see White v. State, No. 01-09-00903-CR, 2010
WL 5060610, at *3 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, pet. ref’d) (mem.
op., not designated for publication) (cited cases and explained that, if factfinder can
view and examine marihuana admitted into evidence, then factfinder can determine
usable quantity).
        Here, Officer Morales testified that, based on his training and experience, he
believed the substance was marihuana.                     Additionally, Silva testified that the
substance looked and smelled like marihuana. The evidence was sufficient to
support the jury’s finding that the substance was marihuana. See Deshong, 625
S.W.2d at 329–30. The marihuana was admitted into evidence as an exhibit, and the
jury could examine it to determine whether the amount constituted a usable quantity.
The evidence was sufficient for the jury to find that the amount of marihuana was a
usable quantity.3 See Perez, 947 S.W.2d at 271 n.6. The evidence was sufficient to
support Appellant’s conviction. See Jackson, 443 U.S. at 318. We overrule
Appellant’s sole issue.



        3
         We note that, although circumstantial evidence can be sufficient, the Court of Criminal Appeals
has “encouraged the State to offer specific proof on the issue.” See Perez, 947 S.W.2d at 271 n.6; Lejeune v.
State, 538 S.W.2d 775, 780 (Tex. Crim. App. 1976).
                                                     5
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


August 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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