                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00097-CR



             ODELL WD NEAL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                   Hunt County, Texas
              Trial Court No. CR1800114




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                       MEMORANDUM OPINION
         After a jury found Odell WD Neal guilty of possession of marihuana in an amount of two

ounces or less, the trial court sentenced him to seventy-five days’ confinement in jail. Neal

appeals, maintaining that (1) the trial court erred when it denied his motion to suppress, (2) the

evidence was insufficient to support the jury’s guilty verdict, 1 and (3) the trial court erred when it

denied Neal’s requested jury charge made pursuant to Article 38.23 of the Texas Code of Criminal

Procedure. Because we find that the trial court did not err when it denied Neal’s motion to

suppress, there was sufficient evidence to support the jury’s guilty verdict, and there was no error

in the trial court’s denial of Neal’s requested jury charge instruction, we affirm the trial court’s

judgment of conviction.

I.       Background

         On November 3, 2017, Texas Department of Public Safety Trooper Cody Sagnibene was

on routine patrol traveling in the northbound lane when he observed a white vehicle with a

defective head lamp traveling southbound. Sagnibene turned his patrol car around in order to

conduct a traffic stop on the white vehicle. When he approached the driver’s side of the vehicle,

he immediately smelled the strong odor of marihuana emanating from the passenger’s side of the

vehicle. Sagnibene instructed the driver, Neal, to exit the vehicle. At that point, Neal admitted

that he had recently been smoking marihuana.




1
  Neal contends in his brief that the evidence is factually insufficient. Texas courts of appeals no longer review criminal
verdicts for factual insufficiency. See Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.).
However, because Neal argues that the evidence is insufficient under the standard set forth in Jackson v. Virginia, 443
U.S. 307, 314 (1979), we interpret his point of error to be a legal sufficiency challenge.

                                                            2
         Sagnibene proceeded to conduct a search of the vehicle, which yielded a glass pipe, eye

drops, what he believed to be marihuana residue on the floorboard of the vehicle, several lighters,

and multiple hollowed-out cigarillos. He also discovered a clear, white, plastic bottle, which

contained “a yellow liquid substance and [was] marked with a reader on the bottom that [he]

recognized through [his] experience and training to be synthetic or fake urine.” 2 According to

Sagnibene, synthetic urine can be used to falsify the results of a urine test for the detection of

drugs. After placing Neal under arrest for falsification of drug test results, Neal began to deny the

substance was synthetic urine. Upon arrival at the jail, however, Neal admitted that he was in

possession of marihuana, which he was keeping in his underwear. Neal then retrieved a clear,

plastic baggy containing a green, leafy, plant-like substance that Sagnibene believed to be

marihuana. It was later determined that the baggy contained .04 ounces of marihuana.

II.      Discussion

         A.       The Trial Court’s Denial of Neal’s Motion to Suppress Was Not Error

         During the hearing on his motion to suppress, Neal argued that there was a lack of probable

cause to arrest him for the offense of falsification of drug test results. 3                       He maintained,

“[S]pecifically, with regard to that, there should be no evidence that the Defendant possessed that

with an intent to use that device to falsify any drug tests. Mere possession of the device alone is

not a criminal act.” In support of the State’s position that Neal’s motion to suppress should be


2
 Sagnibene also testified that the bottle was covered with a black label containing the numbers 90, 92, 94, 96, 98, and
100. According to Sagnibene, he believed the numbers indicated temperature readings. Sagnibene added, “As most
people are aware of, the body’s regular temperature is 98.6.”
3
 Pursuant to his written motion to suppress, Neal argued that the State’s actions violated his constitutional rights
because Sagnibene did “not hav[e] reasonable suspicion of a traffic offense to stop and detain [him] in this case.”
                                                          3
denied, Sagnibene testified to the events leading up to Neal’s arrest. After hearing his testimony,

the trial court denied Neal’s motion, and a jury trial commenced. On appeal, Neal contends the

trial court’s denial of his suppression motion was error because the evidence showed that

Sagnibene “did not have probable cause to arrest [him] for possession of a drug falsification device,

as mere possession of such a device is not a criminal offense, and anything after said unlawful

arrest should be suppressed.”

        “We review the trial court’s decision to deny [a] motion to suppress evidence by applying

a bifurcated standard of review.” Young v. State, 420 S.W.3d 139, 141 (Tex. App.—Texarkana

2012, no pet.) (citing Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet.

ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d)). “Because

the trial court is the exclusive trier of fact and judge of witness credibility at a suppression hearing,

we afford almost total deference to its determination of facts supported by the record.” Id. (citing

State v. Ross, 32 S.W.3d 853, 856–57 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

“We also afford such deference to a trial court’s ruling on application of law to fact questions, also

known as mixed questions of law and fact, if the resolution of those questions turns on an

evaluation of credibility and demeanor.” Id. (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996)).

        We apply a de novo review to the trial court’s application of the law and its determination

of questions not turning on credibility. Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at

89; Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d).                     “In

                                                   4
determining whether a trial court’s decision is supported by the record, we generally consider only

evidence adduced at the suppression hearing, because the ruling was based on that evidence, rather

than evidence introduced later at trial.” Young, 420 S.W.3d at 141 (citing Rachal v. State, 917

S.W.2d 799, 809 (Tex. Crim. App. 1996)).

       “A peace officer may arrest an offender without a warrant for any offense committed in his

presence or within his view.” TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (West 2015). Probable

cause to arrest exists where the facts and circumstances within the officer’s knowledge and of

which he has reasonably trustworthy information are sufficient in themselves to warrant a

reasonable person to believe that a particular person has committed or is committing an offense.

Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Here, Sagnibene determined there

was probable cause to place Neal under arrest without a warrant for the offense of falsification of

drug test results. A person commits the offense of falsification of drug test results when he

“knowingly or intentionally uses or possesses with intent to use any substance or device designed

to falsify drug test results[,]” or when he “knowingly or intentionally delivers, possesses with

intent to deliver, or manufactures with intent to deliver a substance or device designed to falsify

drug test results.” TEX. HEALTH & SAFETY CODE ANN. § 481.133(b) (West 2017).

       During the hearing on Neal’s motion to suppress, Sagnibene testified that he smelled

marihuana when he first approached Neal’s vehicle. Moreover, Neal admitted to Sagnibene that

he had, in fact, been smoking marihuana prior to being stopped by Sagnibene. During the search

of Neal’s vehicle, Sagnibene observed a bottle of what he believed to be synthetic urine. The

container Sagnibene discovered held a yellow substance and was marked with an assortment of

                                                5
temperatures, which, according to Sagnibene, indicated to him that Neal intended to use the device

and its contents to falsify a drug test. Sagnibene explained,

       Well, through my experience, I’ve seen this container before. I’ve seen the hand
       warmer rubber banded around it. You can go online. You can buy things exactly
       like this. The temperature label on the side of it, the color, in combination with the
       totality of everything in the vehicle, the marijuana residue, the pipe in the trunk,
       and the ground-out cigarillos.

He concluded, “That’s what the device is designed for.” Sagnibene also stated that he was aware

that Neal was on parole and that he “assumed that when [Neal was] on parole that he may have to

take a drug test.”

       The Texas Court of Criminal Appeals has held that, under Article 14.01(b), when a police

officer personally observes behavior that is not overtly criminal but, when coupled with the

officer’s prior knowledge so that the otherwise innocuous conduct reflects that an offense is then

occurring, the behavior may amount to probable cause. Adkins v. State, 764 S.W.2d 782, 785;

Lunde v. State, 736 S.W.2d 665, 667 (Tex. Crim. App. 1988). “Since all evidence is viewed in the

light most favorable to the trial court’s ruling, we are obligated to uphold the denial of a motion to

suppress if it was supported by the record and was correct under any theory of law applicable to

the case.” Young, 420 S.W.3d at 141 (citing Carmouche, 10 S.W.3d at 328; State v. Ballard, 987

S.W.2d 889, 891 (Tex. Crim. App. 1999)). When we examine the totality of the evidence, we find

that Sagnibene had reasonably trustworthy information sufficient to warrant a reasonable belief

that Neal was knowingly or intentionally possessing the container and its contents with the intent

to use them for the purpose of falsifying drug test results. See Amores, 816 S.W.2d at 413.




                                                  6
       We, therefore, conclude that the trial court did not err when it denied Neal’s motion to

suppress. Neal’s first point of error is overruled.

       B.      Sufficient Evidence Supported the Jury’s Guilty Verdict

       Next, Neal contends that the State failed to present sufficient evidence to prove that he was

guilty of the offense of possession of marihuana in the amount of two ounces or less. In evaluating

legal sufficiency in this case, we must review all the evidence in the light most favorable to the

verdict to determine whether any rational fact-finder could have found, beyond a reasonable doubt,

that Neal was guilty of the offense of possession of marihuana in an amount of less than two

ounces. See Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319; Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality

of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring).

       We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the fact-finder “to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).            Legal

sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “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.

                                                  7
       In this case, Neal was charged by information, which set forth, in part, that, “on or about

[the] 3rd day of November, 2017, and before the filing of this information, in Hunt County, Texas,

ODELL WD NEAL, hereinafter called Defendant, did then and there intentionally or knowingly

possess a usable amount of marijuana in the amount of two ounces or less.” On appeal, Neal

maintains that the State failed to present sufficient evidence that he was in possession of a usable

amount of marihuana. “Usable quantity” has been defined as “an amount sufficient to be applied

to the use commonly made thereof.” Pelham v. State, 298 S.W.2d 171 (Tex. Crim. App. 1957).

A usable quantity may be proven by circumstantial evidence or inferences drawn from evidence

of the amount of marihuana a person possessed. Lejeune v. State, 538 S.W.2d 775, 777 (Tex.

Crim. App. 1976).

       At trial, Sagnibene was asked how he knew the substance in the plastic baggy was

marihuana. He responded, “Marijuana has a very distinctive look, smell, color, and texture to it.

I’ve come across marijuana several times, as I’m sure many people here have come across

marijuana. It’s very common nowadays. This smelled like marijuana. This looked like marijuana.

This felt like marijuana.” Following Neal’s arrest, the marihuana was weighed and it, along with

the plastic baggy, weighed 0.04 ounces. That measurement also included the stems and seeds,

which, according to Sagnibene, were generally not used for smoking.

       In addition, Sagnibene testified that, through his training and experience, he believed the

amount of marihuana found in Neal’s possession was a usable amount. The State also presented

evidence that Neal was in possession of drug paraphernalia, including a glass pipe and hollowed

out cigarillos, either of which the jury could have reasonably believed Neal intended to use for the

                                                 8
purpose of smoking marihuana. 4 Moreover, the jurors were allowed to examine a photograph of

the marihuana in the baggy, thereby giving them the opportunity to determine for themselves

whether they believed it was a usable amount.

        We therefore find the State presented sufficient evidence on which a rational jury could

find that Neal was in possession of a usable amount of marihuana. Neal’s second point of error is

overruled.

        C.       Instructions to the Jury

        Lastly, Neal maintains that the trial court erred when it “sua sponte objected to” the

inclusion of an Article 38.23 instruction in its charge to the jury. Article 38.23(a) of the Texas

Code of Criminal Procedure states,

        No evidence obtained by an officer or other person in violation of any provisions
        of the Constitution or laws of the State of Texas, or of the Constitution or laws of
        the United States of America, shall be admitted in evidence against the accused on
        the trial of any criminal case.

        In any case where the legal evidence raises an issue hereunder, the jury shall be
        instructed that if it believes, or has a reasonable doubt, that the evidence was
        obtained in violation of the provisions of this Article, then and in such event, the
        jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018).

        Here, Neal requested an Article 38.23(a) jury instruction based on the same assertions

contained in his motion to suppress evidence, that is, that there was no probable cause to arrest

Neal for the offense of falsification of drug-test results and thus, any evidence resulting from that


4
 Sagnibene stated, “And then that’s a bag of cigarillos, which is a popular method to smoke marijuana. They’ll ground
out the hollow -- they’ll hollow out the inside and smoke marijuana out of it.”

                                                         9
arrest was retrieved in violation of his constitutional rights. After the trial court noted Neal’s

request, it asked counsel for Neal if he would like to read the instruction into the record. Counsel

responded, “I would like the charge to reflect the suppression issue to the jury, and I do not have

that. I would request to use the County Attorney’s books in order to find that and get it in.” 5 The

State responded that it had no objection to Neal’s requested instruction. The trial court then stated,

                Well, the Court does have an objection. The law is clear under Gerron
         versus State that an arrest that would have been valid for any other reason, other
         than a single incident he was arrested for, does not get a 38.23 charge. So I am
         bound by law that I cannot give a 38.23 charge.

See Gerron v. State, 119 S.W.3d 371, 376–77 (Tex. App.—Waco 2003, no pet.).

         Pursuant to Article 38.23(a), “[n]o evidence obtained by an officer . . . in violation of any

provisions of the constitution or laws . . . shall be admitted in evidence against the accused” at

trial.   TEX. CODE CRIM. PROC. ANN. art. 38.23(a). However, an Article 38.23(a) instruction is

“mandatory only when there is a factual dispute regarding the legality of the [complained-of

action.]” 6 Williams v. State, 356 S.W.3d 508, 525 (Tex. App.—Texarkana 2011, pet. ref’d) (citing

Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005)). To be entitled to a jury instruction


5
 Later during the proceedings, counsel for Neal read into the record his proposed instruction, which stated in relevant
part as follows:
          Probable cause to arrest exists when an officer has knowledge of such facts as would lead a
          reasonable person to believe that a particular individual is committing, has committed, or is about
          to commit a criminal act. The officer must be able to articulate the facts and circumstances forming
          the basis for probable cause. Now, therefore, before you consider the testimony of Trooper
          Sagnibene concerning events that took place after the arrest of the Defendant, you must first find
          beyond a reasonable doubt that the trooper had such probable cause to arrest the Defendant. And if
          you do not so find beyond a reasonable doubt, you will disregard any such testimony and evidence
          pertaining to the events occurring after said arrest.
6
 “[A] factual issue exists when there is evidence that controverts those facts relied upon by the officer to establish
probable cause for the arrest.” Rodriguez v. State, 239 S.W.3d 277, 280 (Tex. App.—Amarillo 2007, pet. ref’d) (citing
Garza v. State, 126 S.W.3d 79, 85–86 (Tex. Crim. App. 2004)).
                                                         10
under Article 38.23(a), the following factors must be shown to exist: “(1) The evidence heard by

the jury must raise an issue of fact; (2) The evidence on that fact must be affirmatively contested:

and (3) That contested factual issue must be material to the lawfulness of the challenged conduct

in obtaining the evidence.” Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The

Texas Court of Criminal Appeals has explained,

       If there is no disputed factual issue, the legality of the conduct is determined by the
       trial judge alone, as a question of law. And if other facts, not in dispute, are
       sufficient to support the lawfulness of the challenged conduct, then the disputed
       fact issue is not submitted to the jury because it is not material to the ultimate
       admissibility of the evidence. The disputed fact must be an essential one in
       deciding the lawfulness of the challenged conduct.

Id. at 510–11 (citations omitted). In other words, “The jury decides facts; the judge decides the

application of the law to those facts.” Id. at 511.

       While Neal may dispute the trial court’s legal conclusion as it related to the existence of

probable cause to arrest him for falsification of drug test results, he did not offer any controverting

evidence to factually dispute the State’s version of events leading up to and surrounding his arrest

for that offense. As the Texas Court of Criminal Appeals stated in Madden, “There must be a

genuine dispute about a material fact. If there is no disputed factual issue, the legality of the

conduct is determined by the trial judge alone, as a question of law.” Id. at 510. In this case, no

38.23(a) jury instruction was required because there were no facts in dispute, and the legality of

the complained-of conduct was appropriately determined by the trial court.

       Moreover, when there is evidence that an officer observed a defendant commit multiple

violations but the defendant disputes only one of those violations, the defendant is not entitled to

an Article 38.23(a) jury instruction. See Gerron, 119 S.W.3d at 376–77 (holding defendant not
                                                  11
entitled to Article 38.23(a) jury instruction because the State’s evidence raised several alternative

reasons supporting the legality of stop and only one of the reasons involved a disputed fact). In

this case, there was uncontroverted testimony from Sagnibene that Neal was driving with a

defective headlight and was also in possession of drug paraphernalia. Thus, despite Neal’s singular

complaint regarding the lack of probable cause to arrest him for the offense of falsification of drug

test results, Sagnibene had the authority to stop Neal, detain him, and arrest him based entirely on

the offense of driving with a defective headlight. 7 See Spence v. State, 325 S.W.3d 646, 653–54

(Tex. Crim. App. 2010) (holding defendant not entitled to Article 38.23(a) jury instruction

regarding issue of whether he was illegally parked blocking a driveway because the traffic stop

was legal based on lack of front license plate on bumper).

         For these reasons, Neal was not entitled to the Article 38.23(a) instruction he requested,

and the trial court did not err by refusing to submit it to the jury. We overrule his third point of

error.




7
 An officer may lawfully stop and detain an individual who commits a traffic offense. State v. Cardenas, 36 S.W.3d
243, 246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Here, Sagnibene not only had the right to stop and detain
Neal for driving with a defective headlight, but he also could have arrested him for that offense. See TEX. TRANSP.
CODE ANN. §§ 543.001, 547.302 (West 2011).
                                                        12
III.   Conclusion

       We affirm the judgment of the trial court.




                                            Ralph K. Burgess
                                            Justice

Date Submitted:       November 1, 2018
Date Decided:         December 7, 2018

Do Not Publish




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