                                   NO. 12-17-00169-CR

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

TERRELL EDWARD ROBINSON,                         §      APPEAL FROM THE
APPELLANT

V.                                               §      COUNTY COURT AT LAW NO. 2

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
        Terrell Edward Robinson appeals his conviction for possession of a usable quantity of
marijuana in an amount of less than two ounces for which he was fined $300. Appellant raises
six issues on appeal. We affirm.


                                         BACKGROUND
        Officer Robert Main with the Tyler Police Department was on patrol observing a known
drug house. When he witnessed a vehicle leaving the location, Main followed the vehicle and
observed several traffic violations. The driver of the vehicle failed to signal a turn for the
required distance on two occasions and made an improper wide right turn.          Main initiated a
traffic stop.
        Appellant’s girlfriend, Brianna Moss, was driving the vehicle, Appellant was riding in the
front passenger seat, and Appellant’s and Moss’s child was in the back seat. Moss was driving
without a license. Main told Moss that he stopped her for failing to properly signal a turn for the
required distance. When asked where they had been, Appellant and Moss stated that they had
been at the La Quinta Inn taking pictures. When Main asked Appellant if he had identification,
Appellant initially stated that he did not. However, when Main subsequently indicated that he
needed Appellant to recite his identifying information, Appellant instead provided Main with a
Texas identification card. Main informed Moss that she would receive a warning rather than a
citation for the traffic offense. He then returned to his vehicle to run a warrant search on
Appellant and Moss.
       Although Main could not smell the odor of marijuana in the vehicle, he was suspicious.
He believed that both Appellant and his girlfriend were acting nervous. He further believed that
they were not telling the truth about where they had been because Main saw them leave a known
drug house.
       After determining that neither Appellant nor Moss had any outstanding warrants, Main
again made contact with Moss. The two talked beside Main’s patrol vehicle. Main told Moss
that he would write her a warning, but he wanted to know if there was “weed in the car.” Moss
replied that there was a gram of marijuana in Appellant’s possession.
       Main then returned to Moss’s vehicle and made contact with Appellant, who he asked to
step out of the vehicle. Main handcuffed Appellant, and when Appellant questioned if he was
going to jail, Main told Appellant that he was being detained. Main then asked Appellant if he
had marijuana in his possession. Appellant initially denied having any marijuana, but eventually
admitted having a gram of marijuana. Appellant retrieved the marijuana from his person, and
Main took possession of it.
       Appellant was charged by information with possession of a usable amount of marijuana
in an amount less than two ounces.1 Appellant pleaded “not guilty.” Following a trial, the jury
found Appellant “guilty” and assessed a fine of $300. The trial court sentenced Appellant in
accordance with the jury’s verdict. This appeal followed.


                                    SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends that the evidence is insufficient to support his
conviction. Specifically, Appellant argues that the State failed to prove that the marijuana was a
usable quantity.
Standard of Review
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each


       1
           TEX. HEALTH & SAFETY CODE ANN. § 481.121(a),(b)(1) (West 2017).




                                                     2
element of a criminal offense that the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).              Legal sufficiency is the
constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to
sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781,
2786–87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency challenge is
whether any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the
light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102
S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry
v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899.
Instead, we defer to the fact finder’s resolution of conflicting evidence unless the resolution is
not rational.   See Brooks, 323 S.W.3d at 899–900.         When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and
therefore defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). The duty of a reviewing court is to ensure that the evidence presented actually supports a
conclusion that the defendant committed the crime charged. See Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
       The sufficiency of the evidence is measured against the elements of the offense as
defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or




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unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
Analysis
       In this case, the State was required to prove that Appellant possessed a usable quantity of
marijuana in an amount less than two ounces.            TEX. HEALTH & SAFETY CODE ANN.
§ 481.121(a),(b)(1). Appellant contends that the evidence is insufficient to establish that the
marijuana was a “usable quantity.” While Main, the state’s only witness, was not specifically
asked whether the marijuana possessed by Appellant was a usable amount, the jury had ample
circumstantial evidence from which it could determine that the marijuana was a usable amount.
       First, Main stated that he recognized the marijuana by its odor and appearance and, based
on his prior dealings with marijuana and Moss’s statement that Appellant possessed a gram of
marijuana, it appeared to be much less than two ounces. Second, Main testified that Exhibit 3
showed the small bag of marijuana possessed by Appellant. While Exhibit 3 is not part of the
appellate record, the jury was able to see how much marijuana the bag contained and,
accordingly, the amount of marijuana that Appellant possessed. Third, Main testified that the
marijuana consisted of three clumps. Fourth, Moss told Main that she and Appellant paid $15
for the marijuana.
       The video from the traffic stop also supports the jury’s verdict that Appellant possessed a
usable amount of marijuana. The video reflects that, during his separate conversation with Moss,
Main told Moss that any usable amount of marijuana is a class B misdemeanor in Texas.
Similarly, on two occasions while speaking with Appellant, Main said that any usable amount of
marijuana is illegal in Texas and that it is a class B misdemeanor, one step above a ticket.
Further, both Appellant and Moss stated that they paid $15 for the marijuana. They both
admitted to smoking marijuana in the past.
       Viewing the evidence in the light most favorable to the prosecution, we conclude that a
rational factfinder could have found, beyond a reasonable doubt, that Appellant possessed a
usable amount of marijuana in an amount less than two ounces. See TEX. HEALTH & SAFETY
CODE ANN. § 481.121(a),(b)(1); see also Spector v. State, 746 S.W.2d 946, 949-50 (Tex. App.—
Austin 1988, pet. ref’d) (finding evidence sufficient when marijuana weighed .19 grams along
with defendant’s attempt to destroy cigarette). Accordingly, we hold that the evidence is legally




                                                  4
sufficient to support Appellant’s conviction. See Brooks, 323 S.W.3d at 899.2 We overrule
Appellant’s first issue.


                                 UNREASONABLE SEARCH AND SEIZURE
        In his second issue, Appellant contends that the detention was not temporary. In his third
issue, Appellant argues that his and Moss’s statements were not voluntary. In his fourth issue,
Appellant urges that he was never read his Miranda warnings. In his fifth issue, Appellant
contends that Main conducted a custodial interrogation and not a criminal investigation.
Accordingly, Appellant argues that the trial court erred in denying his motion to suppress
evidence.
 Preservation of Error
        To preserve a complaint for our review, a party must present to the trial court a timely
request, objection, or motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1);
Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g). When a pretrial
motion to suppress is denied, the defendant need not object to the admission of the evidence at
trial. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.1986). But, if a trial court has
not yet ruled on a motion to suppress when the evidence is offered at trial, the defendant must
object to the evidence in order to preserve error. Sanders v. State, 387 S.W.3d 680, 686 (Tex.
App.—Texarkana 2012, pet. struck).
        Additionally, even when the trial court denies the motion to suppress before the evidence
is introduced, when a defendant affirmatively states during trial that he has “no objection” to the
admission of the complained of evidence, an appellate court must examine the context of the
record to determine if error has been preserved. Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.
Crim. App. 2013).        It has long been held that such an affirmative statement constitutes a
“waiver” of the right to raise on appeal the error that was previously preserved. See id. at 881–



         2
            We recognize that an appellate court may take judicial notice that a certain amount of marijuana
constitutes a usable amount. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex. Crim. App. 1976). However, based
on the state of this record, a reasonable jury could have been convinced by the circumstantial evidence that the
marijuana possessed by Appellant constituted a usable amount. Accordingly, we need not take judicial notice that a
gram is a usable amount.




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82. However, in Thomas, the court of criminal appeals acknowledged some flexibility in our
construing this rule. As the court stated,


        [A]s with error preservation in general, the rule that a later statement of “no objection” will forfeit
        earlier-preserved error is context-dependent. By that we mean that an appellate court should not
        focus exclusively on the statement itself, in isolation, but should consider it in the context of the
        entirety of the record. If the record as a whole plainly demonstrates that the defendant did not
        intend, nor did the trial court construe, his “no objection” statement to constitute an abandonment
        of a claim of error that he had earlier preserved for appeal, then the appellate court should not
        regard the claim as “waived,” but should resolve it on the merits. On the other hand, if from the
        record as a whole the appellate court simply cannot tell whether an abandonment was intended or
        understood, then, consistent with prior case law, it should regard the “no objection” statement to
        be a waiver of the earlier-preserved error. Under the latter circumstances, the affirmative “no
        objection” statement will, by itself, serve as an unequivocal indication that a waiver was both
        intended and understood.



Id. at 885–86.
Application
        Here, Appellant filed a pretrial motion to suppress but failed to obtain a ruling on the
motion. Instead, on the morning of trial, when asked by the trial court about the pending motion
to suppress, Appellant’s counsel stated, “We want to carry that to trial, Your Honor.” Moreover,
from Appellant’s conduct at trial, we cannot tell whether Appellant intended to abandon his
objections previously made in his motion to suppress. Just before jury selection, Appellant’s
counsel informed the trial court and the State that he probably would proffer into evidence the
recording of the traffic stop.
        During the State’s case in chief, the State proffered the following four exhibits into
evidence: (1) a package containing a chain of custody form and a bag of marijuana; (2) the chain
of custody form for the marijuana relevant to the charge against Appellant; (3) the bag of
marijuana relevant to the charge against Appellant; and (4) the recording of the traffic stop
relevant to the charge against Appellant. When the State proffered Exhibits 1 and 2, Appellant
objected that there was not a complete chain of custody. The trial court overruled Appellant’s
objections, admitted Exhibit 2, and conditionally admitted Exhibit 1. The State then proffered
Exhibit 3 into evidence. After reviewing Exhibit 3, Appellant’s counsel stated, “Thank you,
Your Honor. No objection.” The trial court admitted Exhibit 3 into evidence. Finally, when the
State proffered Exhibit 4 into evidence, Appellant’s counsel stated, “I have no objection.” The
trial court then admitted Exhibit 4.



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       The State published the recording of the traffic stop to the jury.          When the State
forwarded through a portion of the recording, Appellant requested that the entire recording be
published to the jury. The trial court instructed Appellant that the rest of the recording could be
published during Appellant’s portion of the presentment of evidence. Later, during Appellant’s
cross-examination of Main, Appellant published the entire recording to the jury.
       At no time during the State’s case in chief did Appellant give any indication that he
wished to preserve the objections stated in his previously filed motion to suppress. Nevertheless,
after the State rested, Appellant asked the trial court to grant his motion to suppress. The trial
court denied Appellant’s motion.
       Under these facts, we cannot conclude that Appellant preserved the objections made in
his pretrial motion to suppress. See Sanders, 387 S.W.3d at 686; Thomas, 408 S.W.3d at 885-
86. Because we conclude that Appellant waived the objections contained in his motion to
suppress, we overrule Appellant’s second, third, fourth, and fifth issues.


                                       CHAIN OF CUSTODY
       In his sixth issue, Appellant argues that the trial court erred in admitting evidence that
was not supported by a proper chain of custody.
Standard of Review and Applicable Law
       We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
“That is to say, as long as the trial court’s ruling was at least within the zone of reasonable
disagreement, the appellate court will not intercede.” Id.
       “Without evidence of tampering, most questions concerning care and custody of a
substance go to the weight attached, not the admissibility, of the evidence.” Lagrone v. State,
942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Once the State proves the beginning and end of
the chain of custody of evidence, the trial court does not abuse its discretion in admitting the
proffered evidence barring any showing of tampering or alteration. Pinales v. State, Cause No.
05-01-01699-CR, 2002 WL 31116234, at *2 (Tex. App.—Dallas Sept. 25, 2002, no pet.) (op.,
not designated for publication). The chain of custody is conclusively proven if an officer is able
to identify that he or she seized the item of physical evidence, put an identification mark on it,
placed it in the property room, and then retrieved the item being offered on the day of



                                                  7
trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). Gaps within the chain of
custody affect only the weight and not the admissibility of the evidence. Norris v. State, 507
S.W.2d 796, 797 (Tex. Crim. App. 1974).
Application
         Here, Main stated that he took possession of the marijuana from Appellant. Main placed
the package of marijuana in his vehicle. Later, Main tagged the package and logged it into the
property department at the police station as evidence. Main subsequently retrieved the package
containing the marijuana possessed by Appellant and brought it with him to trial. Main testified
that the marijuana did not appear to be altered in any way.
         Appellant complains that Main had possession of the bag of marijuana for two days
before turning it into the evidence department. However, Appellant does not allege any altering
of or tampering with the bag of marijuana, nor did he raise any such allegations at trial. See
Stoker, 788 S.W.2d at 10; Pinales, 2002 WL 31116234 at *2. Absent such evidence, any
questions regarding the care and custody of the bag of marijuana go to the weight rather than the
admissibility of the evidence. See Lagrone, 942 S.W.2d at 617. Accordingly, the trial court did
not abuse its discretion in admitting the complained-of evidence. See Norris, 507 S.W.2d at 797.
We overrule Appellant’s sixth issue.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, third, fourth, fifth, and sixth issues, we affirm
the judgment of the trial court.


                                                                   BRIAN HOYLE
                                                                      Justice



Opinion delivered March 21, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 21, 2018


                                         NO. 12-17-00169-CR


                                TERRELL EDWARD ROBINSON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                            Appeal from the County Court at Law No. 2
                        of Smith County, Texas (Tr.Ct.No. 002-82404-16)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
