                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 IN THE MATTER OF R.R.,                                         No. 08-12-00284-CV
 A JUVENILE.                                    §
                                                                  Appeal from the
                                                §
                                                                 65th District Court
                                                §
                                                              of El Paso County, Texas
                                                §
                                                                   (TC#0900695)
                                                 §


                                         OPINION


     Appellant, R.R., a juvenile, was charged by petition with the delinquent conduct of

possession of less than two ounces of marijuana in a drug-free zone. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.121(a), (b)(1), 481.134 (West 2010).           After a hearing, the trial court

adjudicated Appellant delinquent. Following a disposition hearing, Appellant was placed on

probation until his eighteenth birthday. On appeal, Appellant challenges the trial court’s finding

that he engaged in delinquent conduct by possessing two ounces or less of marijuana. In a single

issue, Appellant argues the evidence is legally insufficient to support his conviction. We affirm.

                                       BACKGROUND

       At the adjudication hearing, Esperanza Garcia, a class guard monitor at San Elizario High
School in El Paso County, Texas, testified that she observed Appellant with other boys by the side

of the school’s field house on May 24, 2012. Garcia saw Appellant smoking and passing what

appeared to be a pen cap to the other boys. Garcia told Alfonso Sepulveda, a security officer at

the school, what she had seen and asked him to stop the boys. Appellant was stopped, and when

he denied smoking, Garcia asked to smell Appellant’s hands which he allowed her to do. Garcia

testified that she smelled the odor of marijuana on Appellant’s hands.

        Garcia and Sepulveda started to walk Appellant to the administrator’s office and Appellant

became very nervous and started to shake and brush something off of his pant leg. Garcia

observed a folded piece of white paper fall from Appellant’s pants. She watched Sepulveda pick

up and open the piece of paper and saw that it contained a green weed substance which she

recognized to be marijuana.1

        Sepulveda testified that he smelled an odor of marijuana on Appellant’s hands and that

Appellant’s eyes were a little glassy. Appellant started to stall, fidget, and pull on his pant legs

when they started to walk to the administrator’s office. At that point, Sepulveda saw a white

folded-up paper fall from Appellant’s pant area. Sepulveda picked up and opened the paper

which contained a green leafy substance he believed to be marijuana.2

        El Paso Sheriff’s Office Deputy Carlos Muñoz testified that his drug training consisted of

the identification of different drugs including marijuana, as well as sight recognition of the general

amounts of marijuana. As a deputy, Muñoz had identified marijuana ten to fifteen times. During

his prior position as a detention officer in the jail annex, Muñoz identified marijuana two to three


1
  Garcia testified that she had smelled and seen marijuana before.
2
  Sepulveda testified he had seen marijuana hundreds of times while working with kids since 1980. He was familiar
with the smell of marijuana and as a former tobacco user, he knew the difference between the smell of marijuana and
tobacco.
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times. On May 24, 2012, Deputy Muñoz was dispatched to San Elizario High School in reference

to a student’s possession of narcotics.

       At the school, Deputy Muñoz spoke to the hall monitor and the security guard among

others and was advised that Appellant possessed marijuana. Deputy Muñoz viewed the green

leafy substance contained in the folded piece of white paper and recognized it to be marijuana.

Deputy Muñoz testified the marijuana appeared to be less than two ounces of marijuana and that it

was a usable amount. The substance field tested positive for marijuana and weighed less than two

ounces. Deputy Muñoz subsequently arrested Appellant.

                                           DISCUSSION

     Appellant contends the evidence is legally insufficient to sustain the trial court’s finding that

he engaged in delinquent conduct. Specifically, he argues the State’s evidence was not legally

sufficient to sustain the trial court’s delinquent conduct finding because the State failed to prove

that the substance was marijuana and that the marijuana weighed two ounces or less. We

disagree.

                                          Standard of Review

       Although juvenile appeals are categorized as civil cases, we use the same standards

applicable in criminal appeals when reviewing challenges to the sufficiency of the evidence

supporting a finding that a juvenile engaged in delinquent conduct. See In re J.R.C.S., 393

S.W.3d 903, 909 (Tex.App. – El Paso 2012, no pet.); In re H.G.G.D., 310 S.W.3d 43, 45 (Tex.

App. – El Paso 2010, no pet.); In re M.D.T., 153 S.W.3d 285, 287 (Tex.App. – El Paso 2004, no

pet.). In a legal sufficiency analysis, we view the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the essential elements of


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the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001).

On review, we do not resolve any conflicts of fact or re-evaluate the weight and credibility of the

evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); In re H.G.G.D., 310 S.W.3d

at 46. Instead, our duty is to determine whether the explicit and implicit findings of fact made by

the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable

to the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). In doing so,

any evidentiary inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d

839, 843 (Tex.Crim.App. 1991).

                                      Possession of Marijuana

       To prove that Appellant engaged in delinquent conduct, the State had to establish that

Appellant knowingly or intentionally possessed a usable quantity of marijuana in the amount of

two ounces or less. TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010); TEX.

FAM. CODE ANN. § 51.03(a)(1) (West 2008). Accordingly, the State bore the burden to prove

beyond a reasonable doubt that Appellant (1) exercised care, control, and management over the

contraband and (2) that he knew he possessed contraband. Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App. 1995).

       First, Appellant contends the State failed to prove that the substance was marijuana. He

complains the evidence is legally insufficient because the State: (1) only offered the testimony of

Deputy Muñoz, a rookie officer; (2) failed to offer the testimony of an expert such as a lab analyst;

(3) did not offer the alleged marijuana or photos of the marijuana into evidence; and (4) failed to

introduce the chain of custody for the marijuana into evidence. However, we find Appellant’s


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arguments unpersuasive. In Osbourn v. State, 92 S.W.3d 531 (Tex.Crim.App. 2002), the Court of

Criminal Appeals held that because of marijuana’s distinct appearance and odor, expert testimony

and chemical testing are unnecessary to prove that a substance is marijuana. Id. at 537-38.

Instead, the substance can be identified through the lay opinion of a police officer or other

witnesses familiar with the odor of marijuana. Id. Thus, the State was not required to call an

expert witness, offer the alleged substance or photos of it at the adjudication hearing, and present

the chain of custody for the marijuana into evidence to prove that the substance was in fact

marijuana.

       Here, Deputy Muñoz testified that he was trained to identify drugs including marijuana.

Although Deputy Muñoz testified that he was still training with his field training officer on May

24, 2012, he explained that as a deputy he came across marijuana quite a few times. In particular,

he stated that he had identified substances to be marijuana on ten to fifteen occasions. He had also

previously identified marijuana on two to three occasions while working as a detention officer at

the jail annex. When Deputy Muñoz viewed the green leafy substance contained in the folded

piece of white paper, he recognized it to be marijuana. When he smelled the substance it smelled

like marijuana. Deputy Muñoz testified that he conducted a field test on the substance which

tested positive for marijuana.

       Moreover, lay witnesses Garcia and Sepulveda testified that they were personally familiar

with marijuana. Garcia and Sepulveda both smelled an odor of marijuana on Appellant’s hands.

Garcia and Sepulveda recognized the green substance contained in the white paper that fell from

Appellant’s pant area as marijuana. When viewed in the light most favorable to the trial court’s

finding, we conclude this evidence was legally sufficient for a rational trier of fact to have


                                                 5
determined that the alleged substance was marijuana.

       Next, Appellant argues the State failed to prove that the weight of the marijuana was two

ounces or less because during cross-examination, Deputy Muñoz could not recall the approximate

amount of the marijuana when he weighed it on the digital scale. He also maintains that it would

have been helpful to have the marijuana or photos of the marijuana introduced into evidence in

order to verify that the deputy’s testimony was accurate. The State responds that the deputy’s

testimony satisfies the elemental requirement that the marijuana be less than two ounces and that it

is a usable amount. We agree with the State.

       While Appellant correctly notes that Deputy Muñoz could not recall the approximate

weight of the marijuana when he weighed it on a digital scale, he believed that Appellant was

charged with a Class B misdemeanor, possession of marijuana, under two ounces. Furthermore,

on direct-examination, Deputy Muñoz testified that he was trained to recognize by sight the

general amount of marijuana. By sight, the amount of marijuana appeared to be less than two

ounces to Deputy Muñoz. According to Deputy Muñoz, this was a usable amount of marijuana.

Deputy Muñoz also testified that he weighed the marijuana and that it weighed less than two

ounces. When viewed in the light most favorable to the trial court’s finding, Deputy Muñoz’s

testimony was sufficient for a rational trier of fact to determine that the amount of marijuana

involved was a usable amount within and weighed two ounces or less. See Martinez v. State, No.

04-09-00029-CR, 2009 WL 3789880, at *3, 4 (Tex.App. – San Antonio Nov. 11, 2009, no pet.)

(holding officers’ testimony that substance is a usable quantity of marijuana is sufficient to support

conviction where State did not offer any physical evidence of the marijuana); TEX. HEALTH &

SAFETY CODE ANN. § 481.121(b) (West 2010).


                                                  6
       Having considered Appellant’s arguments and reviewed the evidence in the light most

favorable to the trial court’s finding, we conclude the evidence was legally sufficient to show that

Appellant engaged in delinquent conduct by knowingly or intentionally possessing two ounces or

less of marijuana. Issue One is overruled.

                                         CONCLUSION

       We affirm the judgment of the trial court.



                                              GUADALUPE RIVERA, Justice
December 27, 2013

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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