                              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.


                                                        2
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



                                                 3
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).


                                                       4
‘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


                                               5
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.




                                                  6
                                   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.




                                               7
