      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00266-CR



                                    Vicki Osbourn, Appellant

                                                  v.

                                   The State of Texas, Appellee




              FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
               NO. 563-762, HONORABLE JAN BRELAND, JUDGE PRESIDING




                Appellant appeals her conviction for possession of marihuana, a usable amount of less

than two ounces. Tex. Health & Safety Code Ann. § 481.121(a)(b)(1) (West Supp. 2001). Appellant

entered a plea of “not guilty.” In a bench trial, the trial court found her guilty and assessed her

punishment at twenty days’ confinement in the county jail.


                                           Points of Error

                Appellant advances two points of error. First, appellant contends that the trial court

erred in admitting into evidence the testimony of the State’s expert witness—the arresting police

officer—concerning the nature of the substance. Appellant contends that she had obtained a pretrial

discovery order under article 39.14(b) of the Texas Code of Criminal Procedure1 requiring the State

to name its expert witnesses; that the State failed to respond; and that, despite timely objection, the


       1
           Tex. Code Crim. Proc. Ann. art. 39.14(b) (West Supp. 2001).
trial court erred in permitting Officer Nicole Saval, an expert witness, to testify. Appellant urges that

this is a case of first impression under article 39.14(b). Second, appellant claims that without the

expert testimony the evidence is legally insufficient to support the conviction.


                                             Background

                 Austin Police Officers Christopher Gray and Nicole Saval were the State’s only

witnesses. Appellant offered no evidence.2 Officer Gray testified that on the evening of December

23, 1999, he arrived on the scene of a traffic stop in the 8600 block of Burnet Road to act as a

backup for Officer Saval. Saval told Gray that she suspected the driver of the stopped vehicle was

“DWI.” Officer Gray identified appellant as the only passenger in the vehicle. He, however, focused

on the driver, and after field sobriety tests, arrested the driver for driving while intoxicated and

possession of marihuana.

                 On direct examination, Officer Saval was immediately asked about her three years with

the Austin Police Department and her training at the police academy. Saval related that at the

academy “they” were shown what each drug looked like, and were allowed to smell marihuana before

and after it was burnt. She could not recall the length of any class on drug recognition. When she

was asked if she was a drug recognition expert, there were several general objections and inquiries

as to whether the State was attempting to qualify her as an “expert.” The trial court permitted the

interrogation to continue, but the specific question was not re-asked. Saval testified that she was not

certified as a drug recognition expert, but was familiar with what marihuana looked like. At this




        2
            The appellate record contains no punishment phase of the trial.

                                                   2
point, appellant interposed her objection that Saval could not testify as an expert under Rule 702 of

the Texas Rules of Evidence because of the trial court’s discovery order requiring the State to name

its expert witnesses twenty days prior to trial which it had not done. The State responded that it was

not offering Saval as an expert witness under Rule 702. It pointed out that the offense report had

been given to appellant early on and that the report revealed what the officer had observed and

smelled on the night in question.

               After a lengthy colloquy, the trial court withheld its ruling until Saval had fully

testified. Saval repeated her earlier testimony and added that she “had come across it [marihuana]”

and made marihuana arrests during her three years as a peace officer. She was familiar with the

appearance and smell of marihuana.

               Officer Saval then testified that about 10:50 p.m. on December 23, 1999, she stopped

a silver Buick Skylark automobile for high light beams while traveling towards oncoming traffic.

Scott Conyers, the driver, exited the automobile. As Saval had Conyers get back into the vehicle,

she smelled alcohol on his breath and the odor of burnt marihuana emanating from the vehicle.

               After Officer Gray arrived on the scene, Saval approached the passenger whom she

identified as appellant. When asked if she and Conyers had been smoking marihuana, appellant denied

the same. In response to Officer Saval’s remark that she smelled the odor of marihuana, appellant

suggested “cigarettes.” When told that cigarettes do not smell like marihuana, appellant admitted that

“they” had been smoking marihuana. When asked if there was any marihuana in the vehicle, appellant

stated that there was, and pointed to a place between the two front seats. Appellant claimed that the

marihuana was hers. Officer Saval confiscated the substance which was in a see-through baggy.



                                                  3
Based on her experience and training, Saval stated the substance was marihuana, a usable amount of

less than two ounces.

               At the conclusion of the testimony, the trial court stated:


               I think it is expert testimony because it requires a specialized knowledge.
       Although, I don’t know. If the Courts were called to decide on that today, they may
       say that a lay person can determine if something is marihuana or not.


               This was followed by more argument and colloquy. The State pointed out that the

offense report had been in appellant’s hands before the notice request; that the report noted that Saval

smelled and observed marihuana; that the report noted a named lab technician who had tested the

substance and found it to be marihuana; and that appellant knew what Saval’s testimony would be.

Appellant argues, in effect, that it was the State’s burden to comply with the notice requirement under

article 39.14(b) and that an offense report did not meet that burden. The trial court overruled

appellant’s objection.


                                The Law Prior to Article 39.14(b)

               Article 39.14(a) , our earliest discovery statute in criminal cases, does not specially

provide for the disclosure of the State’s witnesses to the defense. Tex. Code Crim. Proc. Ann. art.

39.14(a) (West Supp. 2001)3; Thorton v. State, 37 S.W.3d 490, 492 (Tex. App.—Texarkana 2000,

pet. ref’d); 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure § 22.161 at 96 (2001) (hereinafter Dix). Nevertheless, it has been repeatedly held that


       3
         Cf. Tex. Code Crim. Proc. Ann. art. 20.20 (West 1977) (relating to the endorsement on the
indictment of the names of witnesses upon whose testimony the indictment was found).

                                                   4
upon a request by a defendant, the State must, in accordance with the trial court’s discovery order,

give notice of whom it intends to call as witnesses. See Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim.

App. 1989); Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981); Young v. State, 547

S.W.2d 23, 27 (Tex. Crim. App. 1977); Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.—El

Paso 2000, pet. ref’d); Marx v. State, 953 S.W.2d 321, 338 (Tex. App.—Austin 1997), aff’d on

other grounds, 978 S.W.2d 577 (Tex. Crim. App. 1999); Dix, § 22.171 at 99. Until recently, no

explicit authority existed authorizing a trial court to order discovery of a defendant’s witnesses. See

Thorton, 37 S.W.3d at 493. Thus, only the State was required to disclose witnesses upon request.


                                          Article 39.14(b)

               Appellant did not seek to rely on the case law discussed above, but sought to utilize

a new discovery provision added to article 39.14. Article 39.14(b) (Discovery) provides:


       (b) On motion of a party and on notice to the other parties, the court in which an
           action is pending may order one or more of the other parties to disclose to the
           party making the motion the name and address of each person the other party
           may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules
           of Evidence. The court shall specify in the order the time and manner in which
           the other party must make the disclosure to the moving party, but in specifying
           hte time in which the other party shall make disclosure the court shall require the
           other party to make the disclosure not later than the 20th day before the date the
           trial begins.


Tex. Code Crim. Proc. Ann. art. 39.14(b) (West Supp. 2001).

               The statute expressly authorizes the trial court to order any party to disclose the

names of its expert witnesses to the other party upon motion or request, not just the State.

“Apparently no showing of good cause is required, and thus whether to issue an order is discretionary

                                                  5
with the court.” Dix, § 22.163 at 98. The manner of disclosure is left to the trial court so long as

the disclosure is not later than twenty days before the trial begins. The matter of sanctions is not

mentioned, including that of exclusion of the witness’s testimony. The statute is limited and applies

only to evidence under Rules 702, 703, and 705 of the Rules of Evidence.4

                In Thorton v. State, 37 S.W.3d 490 (Tex. App.—Texarkana 2000, pet. ref’d), the

court, noting the nagging question of a trial court’s authority to order a criminal defendant to disclose

its list of witnesses, discussed article 39.14(b). The court stated:


                 Nevertheless, the Legislature has acted recently with respect to the trial
        court’s authority to order discovery of the defendant’s witnesses. In 1999, the
        Legislature amended Article 39.14 to allow the trial court to grant either party
        discovery of the other party’s expert witnesses. See Tex. Code Crim. Proc. Ann. art.
        39.14(b) (Vernon Supp. 2000). The bill analysis to Senate Bill 577 reveals that it was
        intended to establish a limited exception to the general rule that the State cannot
        obtain discovery of the witnesses the defendant intends to call at trial. Senate Comm.
        on Criminal Justice, Bill Analysis, Tex. S.B. 557, 76th Leg., R.S. (1999). Thus, the
        1999 amendment to Article 39.14 reflects the Legislature’s understanding that the
        trial court generally cannot order discovery of the defendant’s witnesses and its intent
        to provide the State with discovery in certain situations.


Id. at 493.5 (footnote omitted). With this background, we return to the issue at hand.




       4
         It is noted here for our purposes that the statute does not by its express terms apply to Rule
701 of the Rules of Evidence (opinion testimony by lay witnesses).
        5
          Article 39.14(b) was not in effect at the time of the trial in Thorton. The Texarkana Court
held that the trial court had no explicit authority to order the defendant to furnish a list of his
witnesses to the State, but that the nonconstitutional error was harmless under Rule 44.2(b) of the
Texas Rules of Appellate Procedure. Thorton, 37 S.W.2d at 493-94. The court was carful to note
that the constitutional issues raised were not reached because of defective briefing. Id. at 491.

                                                   6
                                              Discussion

                The admissibility of evidence generally, and the qualifications of a witness to testify

as an expert or as a lay witness, are within the discretion of the trial court. See Tex. R. Evid. 104(a);

Harnett v. State, 38 S.W.3d 650, 657 (Tex. App.—Austin 2000, no pet.). Absent a showing of an

abuse of discretion, such decision will not be disturbed on appeal. Ventroy v. State, 917 S.W.2d 419,

422 (Tex. App.—San Antonio 1996, pet. ref’d).

                As is evident from the record, Officer Saval’s testimony was not of a scientific or

technical nature; rather she based her opinions or inferences on impressions and conclusions derived

from perceptions of what she saw, heard and observed at the scene based on her experience and

training. The State did not lay a proper predicate or seek to establish Saval’s qualifications as an

expert witness. In fact, the State claimed that Rule 701 of the Texas Rules of Evidence (opinion

testimony by lay witnesses) applied. Rule 701 provides:


                If the witness is not testifying as an expert, the witness’s testimony in the form
        of opinions or inferences is limited to those opinions or inferences which are (a)
        rationally based on the perception of the witness and (b) helpful to a clear
        understanding of the witness’s testimony or the determination of a fact in issue.


Tex. R. Evid. 701.

                In Harnett v. State, 38 S.W.2d 650 (Tex. App.—Austin 2000, pet. ref’d), this Court

in discussing Rule 701 stated:


                The rule’s requirement that the opinion or inference of a lay witness be
        “rationally based on the perception of the witness” can be said to have two elements.
        See 2A Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Courtroom
        Handbook on Texas Evidence, ch. 5, art. VII, at 413 (Texas Practice 2000). The first

                                                    7
       element involves the personal knowledge of the witness as required by Rule 602.
       Tex. R. Evid. 602; Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App. 1994). The
       necessary personal knowledge may be gained by the perception of fact by the senses
       of the witness. State v. Brainard, 968 S.W.2d 403, 412 (Tex.App.—Amarillo
       1998), aff’d in part, rev’d in part on other grounds, 12 S.W.3d 6 (Tex 1999). Thus,
       the perception underlying a lay witness’s testimony may be what was seen, heard
       smelled, tasted, touched, or felt. Id. The second element mandates that the opinion
       must be one that a reasonable person could draw from the underlying facts. Fairow
       v. State, 943 S.W.2d 895, 900 (Tex.Crim.App. 1997). Under Rule 701, much must
       be left to the discretion of the trial court. Austin v. State, 794 S.W.2d 408, 410
       (Tex.App.—Austin 1990, pet. ref’d).


Id. at 657-58.

                 Rule 702 of the Texas Rules of Evidence (testimony by experts) provides:


                If scientific, technical or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact, a witness qualified as an expert
       by knowledge, skill, experience, training, or education may testify thereto in the form
       of an opinion or otherwise.


Tex. R. Evid. 702.

                 Rule 702 requires that two initial hurdles must be overcome before expert testimony

will be admissible. As the rule itself requires, the proponent of the testimony must establish (1) that

the scientific, technical, or other specialized knowledge will aid the trier of fact, and (2) that the

expert is qualified to testify on the subject. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App.

1995); Roise v. State, 7 S.W.3d 225, 234 (Tex. App.—Austin 1999, pet. ref’d).

                 In Harnett, 38 S.W.3d at 658, this Court, discussing Rule 702, stated:


       The expertise must be measured against the particular opinion the expert is offering.
       Roise, 7 S.W.3d at 234. While the proponent of the testimony has the burden of
       establishing the expert’s qualifications, the trial court has the responsibility to ensure

                                                   8
       that “those who purport to be experts truly have expertise concerning the actual
       subject about which they are offering an opinion.” Broders v. Heise, 924 S.W.2d
       148, 152 (Tex.1996). And more recently, it has been made clear that a trial court’s
       gate keeping obligation under Rule 702—to insure that the expert witness’s testimony
       rests upon a reliable foundation and is relevant to the task at hand applies to all expert
       testimony not just scientific expert testimony. Rosie, 7 S.W.3d at 235-36 (citing
       Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
       (1999); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App. 2000).


               The trial court tentatively found Saval an expert witness with specialized knowledge

under Rule 702. A witness, however, may qualify to give testimony under both Rules 702 and 701.

Harnett, 38 S.W.2d at 659; Ventroy, 917 S.W.2d at 422; McCray v. State, 873 S.W.2d 126, 128

(Tex. App.—Beaumont, no pet.); Yohey v. State, 801 S.W.2d 232, 243 (Tex. App.—San Antonio

1990, pet. ref’d); Austin v. State, 794 S.W.2d 408, 409-10 (Tex. App.—Austin 1990, pet. ref’d).

Under pre-rules cases, courts tended to accord some weight to identifications of marihuana by non-

chemists. Roberts v. State, 9 S.W.3d 460, 463 (Tex. App. —Austin 1999, no pet.) (citing Fierro v.

State, 706 S.W.2d 310, 317-18 (Tex. Crim. App. 1986) (police officer can identify marihuana based

on experience)). It would appear that Saval’s testimony was admissible under both Rules 701 and

702.

               $7,058.84 in U.S. Currency v. State, 30 S.W.3d 580 (Tex. App.—Texarkana 2000,

no pet.), is closely on point with the instant case. There, the claimant in a forfeiture proceeding,

growing out of a drug-related felony, contended that the trial court erred in failing to exclude a

deputy sheriff’s testimony identifying a green, leafy substance found in a holding cell as marihuana.

The claimant contended that the State did not designate the deputy as a testifying expert during

discovery and did not qualify him as an expert witness under Rule 702. On appeal, the court held that



                                                   9
the deputy’s testimony was admissible under Rule 701, and the State did not violate discovery by

failing to disclose the deputy as a testifying expert. Id. at 584-85. 6

                Thus, Officer Saval’s testimony as to the substance being marihuana was admissible

under Rule 701, given the circumstances. Article 39.14(b), relied upon by appellant, is not applicable

to witnesses testifying under Rule 701. While the trial court held the evidence admissible for another

reason, it is clear that if a trial court’s decision is correct on any theory of the law applicable to the

case it will be sustained, even if the trial court gives the wrong reason for its decision. Romero v.

State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990); Couchman v. State, 3 S.W.3d 155, 158

(Tex. App.—Fort Worth 1999, pet. ref’d).

                Even if Saval’s testimony was that of an expert witness and admissible only under Rule

702 to which article 39.14(b) applies, we would first have to find an abuse of discretion by the trial

court before finding error. Evidence “willfully” withheld from disclosure under a discovery order

should be excluded from evidence. Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978);

Saldivar v. State, 980 S.W.2d 475, 497 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

However, the extreme sanction of exclusion should not be imposed absent wilfulness on the part of

the prosecution. Peña v. State, 864 S.W.2d 147, 149 (Tex. App.—Waco 1993, no pet.); State v.

Wright, 830 S.W.2d 309, 313 (Tex. App.—Tyler 1992, no pet.).

                As noted earlier, case law has for some time required the State to disclose the

witnesses it intends to use upon a defendant’s request and trial court’s order. Hightower, 629 S.W.2d




        6
           The opinion does mention article 39.14(b). The trial may have occurred prior to the
effective date of the statute.

                                                   10
at 925. If the trial court allows a State’s witness not on the required list to testify, appellate courts

review that decision for an abuse of discretion. Stoker, 788 S.W.2d at 15; Martinez v. State, 867

S.W.2d 30, 39 (Tex. Crim. App. 1993); Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana

2000, pet. ref’d). Such an appellate review usually encompasses two factors: (1) whether the State’s

action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the

undisclosed witness would testify. Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App. 1992);

Hardin, 20 S.W.3d at 88.

                 There is nothing in this appellate record to suggest that the State acted in bad faith or

willfully failed to respond to the trial court under article 39.14(b). The prosecution did not then nor

does it now consider Saval to be an expert witness. Appellant has not shown that the State intended

to deceive her and does not claim that the State’s action left inadequate time to prepare. See Hardin,

20 S.W.3d at 88. Moreover, an offense report was made available to appellant prior to her notice

request under article 39.14(b). Saval was the arresting officer and was an essential witness under any

circumstances.     The offense report clearly indicated that Saval’s personal knowledge of the

discovered substance was rationally based on her subjective perception. Clearly, appellant could have

anticipated Saval’s testimony, most of which was included in the offense report. If appellant was

caught off guard, she did not request the trial court to grant a recess, postponement or continuance

to remedy the situation. See Hardin, 20 S.W.2d at 88-89. Having found no bad faith and that

appellant could have reasonably anticipated Saval’s testimony, we conclude that the trial court did

not abuse its discretion if Saval’s testimony as to the marihuana was admissible only under Rule 702.




                                                    11
We decline to adopt a different standard of review because of the enactment of article 39.14(b).7 The

first point of error is overruled.


                                          Legal Sufficiency

                In her second point of error, appellant contends that “without the State’s legal expert,

there is legally insufficient evidence to sustain a conviction.”

                The standard for reviewing the legal sufficiency of evidence is whether, viewing the

evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found

beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.—Austin 1994, pet. ref’d).

                In applying this standard of review, it is important to remember that all the evidence

the trier of fact was permitted, properly or improperly, to consider must be taken into account in

determining the legal sufficiency of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999); Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993); Steinbach v. State, 979 S.W.2d 836, 838 (Tex.

App.—Austin 1998, no pet.).

                Thus, Officer Saval’s testimony identifying the substance as marihuana can be

considered in determining the sufficiency of the evidence regardless of whether it was properly

received into evidence. In addition, there was Saval’s testimony describing appellant’s admission




        7
         Appellant would have us adopt a different standard of review, citing cases dealing with the
notice requirement in Rule 404(b) of the Texas Rules of Evidence. See, e.g., Webb v. State, 36
S.W.3d 164, 177-80 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

                                                  12
against interest that the substance was marihuana. A witness may testify at trial that he was told by

the accused that a substance in the possession of the accused was a controlled substance, and such

testimony is admissible evidence of the accused’s possession thereof. See Roberts, 9 S.W.3d at 462;

Bright v. State, 556 S.W.2d 317, 322 (Tex. Crim. App. 1977); Stein v. State, 514 S.W.2d 927, 933-

34 (Tex. Crim. App. 1974). Appellant’s voluntary on-the-scene admission was not the result of

custodial interrogation. See State v. Waldrop, 7 S.W.3d 836, 839 (Tex. App.—Austin 1999, no pet.)

(citing Stevenson v. State, 958 S.W.2d 824, 829 (Tex. Crim. App. 1994)). We reject appellant’s

claim that the statement was an extra-judicial confession requiring corroboration. The second point

of error is overruled.

               The judgment is affirmed.




                                              John F. Onion, Jr., Justice

Before Justices Kidd, Puryear and Onion*

Affirmed

Filed: October 18, 2001

Publish




                                                 13
*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




                                              14
