
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-98-00588-CR



Floyd Calvin Roberts, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 98-403-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING



	A jury convicted Floyd Calvin Roberts of one count of delivering marihuana to a
minor.  See Tex. Health & Safety Code Ann. § 481.122 (West Supp. 1999).  After hearing
testimony on punishment and appellant's plea of true to a prior felony conviction, the jury
assessed sentence at life in prison.  Roberts contends that the evidence was factually and legally
insufficient to support the conviction and that the court erred by overruling his objection to the
State's jury argument.  We will affirm the judgment.

BACKGROUND

	Roberts befriended eighth-graders Jessica Easley, Kristi Jordan, and Stephanie
Ellison while working as a school bus driver.  With at least one of their mother's permission, he
took the girls in his truck to the mall, their friends' homes, and other places.  Easley testified that
Roberts also gave her and her friends marihuana and alcohol.  She testified that he bought the
marihuana at meetings set up on the phone and bought drug paraphernalia at a store in Austin. 
He usually kept the marihuana in his room, but sometimes put it in his truck.  In his truck, he put
it in a hole near the stereo.  She said she and her friends dropped marihuana seeds in the truck
when cleaning the marihuana.  (Easley also testified that Roberts sexually assaulted her; because
the jury acquitted him of the various sexual assault charges, we will not detail that evidence.) 
Easley's mother testified that she several times suspected that her daughter was high after
spending time with Roberts; she admitted that she did not know for sure that Roberts had provided
the marihuana to her daughter.
	Jordan and Ellison also testified that Roberts gave them marihuana while they were
with Easley.  Both had smoked marihuana before they knew Roberts; Jordan said marihuana has
a distinct odor and particular effects on the user.  Jordan said Roberts gave them marihuana many
times; they said he kept it in his glove compartment, his dresser drawer, and a boot.  The girls
denied they got this marihuana from Jordan's boyfriend.  The girls agreed that Roberts never
smoked marihuana with them because he feared a random drug test showing marihuana use would
cost him his bus-driving job.  Ellison, after initially denying she took marihuana with her on
spring break to Kansas, admitted her aunt caught her with marihuana while there; she testified,
however, that her mother did not know about her marihuana use before the State subpoenaed
Ellison for this trial.
	When Easley told her school counselor shortly after spring break (which ended
Sunday, March 22, 1998) about her activities with Roberts, the counselor informed the city police. 
On April 9, 1998 in a search of Roberts's home, the police found .07 grams of marihuana loose
in Roberts's dresser drawer.  They also found a couple of marihuana seeds and a burnt piece of
paper in the floorboard of his truck.  The crime lab technician stated that tests showed the
substance in the drawer was marihuana; though he did not test the seeds, he opined that they were
marihuana seeds.
	The jury acquitted Roberts of indecency with a child, sexual assault, and one count
of delivery of marihuana to a minor.  The jury convicted him of the remaining count of delivery
of marihuana to a minor.  After hearing evidence regarding Roberts's past, the jury assessed
sentence at life in prison.

DISCUSSION

	By two points of error, Roberts contends that the evidence is legally and factually
insufficient to support his conviction.  When reviewing the legal sufficiency of the evidence under
point of error one, we will view the evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).  When
reviewing the factual sufficiency of the evidence under point of error two, we will view the
evidence without a presumption; we can set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  See Clewis v. State, 922
S.W.2d 126, 135 (Tex. Crim. App. 1996).  The jury is the sole judge of the credibility of the
witnesses and of the weight to give their testimony.  Miller v. State, 909 S.W.2d 586, 593 (Tex.
App.--Austin 1995, no pet.).  The State may prove the identity of a controlled substance based on
an admission by the accused.  See In re L.G., 728 S.W.2d 939, 942 (Tex. App.--Austin 1987, writ
ref'd n.r.e.); see also Bright v. State, 556 S.W.2d 317, 322 (Tex. Crim. App. 1977) (witness's
testimony that appellant told him substance was heroin is admissible and probative of substance's
identity).
	Roberts focuses his sufficiency complaints on whether the State proved that he
delivered marihuana to Easley.  Though the State introduced marihuana found in Roberts's house
and car, it did not offer any marihuana given to Easley.  (The testimony is that the girls consumed
the marihuana he provided.)  Roberts contends the girls' testimony is insufficient to show he gave
Easley marihuana.  Roberts contends that no evidence shows he ever represented he was giving
Easley marihuana.  He also argues that the girls were not qualified to identify marihuana and did
not ever describe the substance he allegedly provided.  He contends that the marihuana recovered
in April is not probative of whether he gave Easley marihuana on March 1; he contends that many
intervening events could account for the presence of marihuana in his house and car.
	Contrary to Roberts's assertion, we find passages of Jordan's testimony reveal
Roberts saying that the substance he gave Easley was marihuana:

Q.	Did Calvin [Roberts] ever discourage or try to get you or Jessica, the times
that y'all were together, not to smoke; or did he ever encourage y'all to
smoke?

A.	He really encouraged it.

Q.	Can you explain that?

A.	Well, if we were just sitting there watching TV, he would ask us if we wanted
to smoke some marijuana.  So, you know, he would say go get it here or
sometimes he would go get it.

* * *


Q.	Let's talk a little bit about how you know that what he gave you was marijuana. 
Does marijuana have a distinct odor to you?

A.	Yes, ma'am, very distinct.
 
Q.	And could you look at it and know it to be marijuana?

A.	Yes, ma'am, it's--it's, you know, pretty obvious.

Q.	Did Calvin Roberts indicate to you it was marijuana?

A.	Yes, ma'am.


On redirect examination, the following exchange occurred:			

Q.	[Roberts] just--I would ask him--or he would just tell us that he bought it, you
know, "I bought some marijuana yesterday" or something.  He never told me
from who, and I was never with him.

A.	The occasions that you described about smoking marijuana with Calvin, there
have been multiple occasions.  Is that correct?

* * *

A.	Yes ma'am.

Q.	And you indicated earlier that on some of those occasions Calvin would direct
y'all to go get it from his--places in his room.  Is that correct?

A.	Yes ma'am.

These passages are similar to the admissions by defendants held to be sufficient to prove the
identity of a controlled substance.  See Bright, 556 S.W.2d at 322; L.G., 728 S.W.2d at 942. 
	Other testimony from the girls supports the conclusion that Roberts provided
marihuana to Easley.  All three girls claimed familiarity with marihuana and asserted repeated
instances in which Roberts gave Easley marihuana.  Easley and Jordan said they had smoked
marihuana before meeting Roberts.  Ellison and Jordan testified that they recognize marihuana by
sight and smell.  The girls talked about characteristics of marihuana like stems and seeds that are
removed before smoking.  All three girls testified that Roberts provided the marihuana to them
many times; Ellison and Easley said they accompanied him when he bought it from someone he
arranged to meet at a service station.  All three girls testified they smoked Roberts's marihuana
together.  The girls described smoking marihuana in a pipe; Jordan and Easley described the
screens in the pipes used to prevent accidental ingestion of the marihuana, and Jordan recognized
that the screen introduced into evidence had not been used.  Easley said smoking it made her high. 
Jordan said smoking it made her tired, hungry, and red-eyed.
	Roberts argues that the girls' testimony is no evidence of the nature of the substance
because they were not qualified to identify it.  This is not a dispute over admissibility because
Roberts did not object to the admission of the evidence.  Rather, Roberts bases this argument on
the court of criminal appeals' disregard of testimony by nonchemists purporting to identify a
substance as heroin; the court concluded that, because many substances resemble heroin,
testimony from narcotics officers and laymen based on the appearance of a substance admitted
without objection nevertheless was not probative evidence that the substance actually was heroin. 
See Bright, 556 S.W.2d at 321-22; see also Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim.
App.1977) (test showing substance was opiate derivative did not prove substance was heroin
because other opiate derivatives resemble heroin). (1)  Roberts argues for a similar ruling here
because other green, leafy, seedy substances resemble marihuana.  See Holliman v. State, 692
S.W.2d 120, 122 (Tex. App.--Waco 1985, pet. ref'd).
	We conclude that, even without Roberts's admissions, the girls' testimony was
some evidence that the substance Roberts gave Easley was marihuana.  Lay witnesses can give
opinion testimony that is rationally based on their perception and helpful to a clear understanding
of their testimony or determination of a fact in issue.  Tex. R. Evid. 701.  The nature of the
substance provided is a fact in issue, and there is no objection in the record that the State did not
lay the proper predicate for the girls to identify the substance.  Courts tend to accord some weight
to identifications of marihuana by nonchemists.  See Fierro v. State, 706 S.W.2d 310, 317-18
(Tex. Crim. App. 1986) (police officer can identify marihuana based on experience); Medina v.
State, 193 S.W.2d 196, 198 (Tex. Crim. App. 1945) ("When the witness testified that he knew
marihuana, that he had smoked it and dealt in it, he would be qualified to so testify.").  The fact
that other substances resemble marihuana does not negate the girls' testimony because they did
not just look at it, they smoked it and testified regarding its effects.  There is also testimony that
Roberts told them he was giving them marihuana.  Their testimony is some evidence that the
substance was marihuana.  Their lack of training and chemical analysis goes to the weight the jury
accords their testimony.  See id.
	Roberts correctly argues that the seizure of marihuana from Roberts weeks after
he allegedly gave marihuana to Easley does not itself provide sufficient evidence to support the
conviction.  It does, however, lend support to the girls' testimony.  The girls testified regarding
places Roberts habitually kept the marihuana he gave Easley.  Weeks later, the police found
marihuana or residue in those same places, thus making more believable their testimony that the
substance he gave them was marihuana.
	Roberts contends that gaps and credibility issues undermine the girls' testimony and
render it insufficient to support the verdict.  He argues that the jury's acquittal of him on the
sexual offenses clearly shows rejection of Easley's testimony, and the acquittal on the March 15
delivery evinces rejection of all the girls' testimony; because there is no distinct testimony
regarding a March 1 marihuana delivery, he argues, the evidence cannot support conviction on
that count.  He theorizes that the girls used him to enable their use of marihuana and other
activities their parents prohibited, but turned against him when they tired of him; he points to
Ellison's blaming him as the source when she was caught with marihuana on spring break in
Kansas, and Easley's description of an argument with Roberts during which she criticized him for
not taking her where she wanted and he criticized her for cursing too much.  He also points to the
fact that Easley concealed her drug use and lied to her mother about her drug use and her
whereabouts during spring break.
	We nonetheless conclude that the evidence is both legally and factually sufficient
to support the judgment.  The indictment charges that Roberts gave Easley, a minor, marihuana
on or about March 1, 1998.  There is no dispute that Easley was a minor.  All three girls testified
that Roberts gave Easley marihuana repeatedly between January 1998 and mid-March 1998;
because all of these dates precede the indictment, the testimony supports the judgment under the
definition of "on or about" given.  See Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App.
1995).  The jury was free to pick which aspects of the girls' testimony to believe, even to convict
on the charge of delivery on March 1 and to acquit on the charge of delivery on March 15.  See
Miller, 909 S.W.2d at 593.  The jury may have found the evidence believable when all three girls
testified about pre-spring break activities (March 1), but may have lumped the March 15 delivery
charge in with the alleged spring-break sexual offenses, testimony about which they found
unconvincing at guilt-innocence.  The girls' limited descriptions of the substance, the way they
consumed it, and its effects on them all support the finding that the substance provided was
marihuana, as does the police's discovery of marihuana four weeks later in the places the girls'
testimony indicated police would find it.  No evidence indicated that the substance was not
marihuana.  Though the deterioration of the girls' relationship with Roberts theoretically might
have caused them to concoct their testimony, it is also possible that it merely freed them from not
wanting to expose him; there is no evidence that they lied about his delivery of marihuana to
Easley.
	The lack of direct evidence of Roberts providing Easley marihuana does not require
that we reverse the conviction.  Circumstantial evidence need not exclude all reasonable
alternative hypotheses.  Sonnier v. State, 913 S.W.2d 511, 516 (Tex. Crim. App. 1995).  Neither
our ability to imagine other sources of marihuana nor the fact that no marihuana delivered to
Easley was introduced requires that we overturn the conviction.  Viewed in the light most
favorable to the verdict, the evidence is legally sufficient to support the conviction.  Even viewed
without that presumption, the evidence is factually sufficient to support the conviction because the
verdict was not against the overwhelming weight of the evidence.  We overrule points one and
two.
	By point of error three, Roberts contends that the district court erred by overruling
his objection made during this portion of the State's final argument:

Who got caught?  What evidence did you hear that Jessica Easley got caught with
anything?  By a parent, by a counselor, by a school teacher?  Was that question
asked of Mrs. Pulatie?  "Well, did you catch her, is that how all of this came to
be?"

No, Jessica didn't get caught.  What happened?  After spring break she went to her
friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring
break.

[Defense counsel]:  Objection, Your Honor, that is not in evidence.

THE COURT:  Overruled.

[Prosecutor]:  That is how all of this came to pass.  And then Ms. Gubitz then
reported it to the official.  This is how all of this began.  Nobody got caught doing
anything except the defendant.

If Jessica wanted to continue this lie of getting alcohol and drugs and enjoyed these
sexual acts with the Defendant, that she wanted it to continue because she wanted
the drugs and alcohol that badly, it could have happened.  She didn't have to report
it.  But what did she tell you?  "I just wanted it to stop."


Roberts contends the portion of the State's argument to which he objected falls into none of the
acceptable categories of jury argument.  Those categories include (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to defense counsel's argument; and (4) a
plea for law enforcement.  See Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993). 
	The State contends that the argument is an answer to defense counsel's argument
and is either summative of or a reasonable deduction from the evidence.  In her argument,
Roberts's attorney told a story about her cousin who lied when he denied owning the marihuana
pipe his mother found in his jacket.  She compared her cousin's behavior to Easley's conduct,
arguing that when Easley was caught lying about her whereabouts at spring break, she concocted
a story that Roberts gave her marihuana and sexually assaulted her.  The State's argument was
clearly in response to this argument, but must be supported by the evidence in order to be proper.
	We conclude that the court did not err by declining to exclude the State's argument. 
Easley, her mother, and Kathleen Gubitz, Easley's school counselor, testified that Easley and
Gubitz had a close relationship; Easley described Gubitz as a friend in whom she could confide. 
Easley and Gubitz both testified that they talked just after spring break.  Easley testified that after
spring break she told Gubitz about Roberts's sexual advances on her; Easley testified that Gubitz
was the first person she told about the sexual advances.  When the prosecutor asked, "Jessica,
what made you want to tell Ms. Gubitz about what was going on?" she responded, "I was tired
of it.  I didn't want it to happen anymore." (2)  Gubitz testified that, after her post-spring break
conversation with Easley, she contacted various authorities including Sergeant Bob Taggart of the
Leander Police Department.  Easley's mother said she learned of Easley's marihuana use, not
from Easley herself, but from Taggart.  There is no evidence that Taggart learned of Easley's
marihuana use or Roberts's provision of marihuana any other way than by this chain of events. 
This evidence either directly or inferentially supports the State's assertion that "[a]fter spring
break she went to her friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring break."  The
argument also responded to Roberts's assertion that the girls were lying because they got caught. 
There is no evidence that Easley's confessions to her counselor were triggered by being caught
with marihuana or being out of place at spring break.  The court did not err by overruling his
objection to this argument by the State.  We overrule point three.

CONCLUSION

	Legally and factually sufficient evidence supports Roberts's conviction for
delivering marihuana to Easley on or about March 1, 1998.  The court did not err in allowing the
challenged portion of the State's argument.  Having overruled all three points of error, we affirm
the conviction.


  
					J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed:   December 23, 1999
Publish
1.        These conclusions resemble the supreme court's conclusion that expert testimony based on
flawed science "is unreliable and, legally, no evidence."  Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706, 714 (Tex. 1997). 
2.        Though her testimony is not entirely clear of what "it" Easley had tired, "it" could include
marihuana provision.  The fact that Easley's mother learned from the police who learned from the
counselor about Easley's drug use enhances the possibility that "it" did.  Regardless, there was
no objection to any vagueness in this testimony nor was vagueness the basis of the objection to
the argument.

="BR1">

Roberts contends the portion of the State's argument to which he objected falls into none of the
acceptable categories of jury argument.  Those categories include (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to defense counsel's argument; and (4) a
plea for law enforcement.  See Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993). 
	The State contends that the argument is an answer to defense counsel's argument
and is either summative of or a reasonable deduction from the evidence.  In her argument,
Roberts's attorney told a story about her cousin who lied when he denied owning the marihuana
pipe his mother found in his jacket.  She compared her cousin's behavior to Easley's conduct,
arguing that when Easley was caught lying about her whereabouts at spring break, she concocted
a story that Roberts gave her marihuana and sexually assaulted her.  The State's argument was
clearly in response to this argument, but must be supported by the evidence in order to be proper.
	We conclude that the court did not err by declining to exclude the State's argument. 
Easley, her mother, and Kathleen Gubitz, Easley's school counselor, testified that Easley and
Gubitz had a close relationship; Easley described Gubitz as a friend in whom she could confide. 
Easley and Gubitz both testified that they talked just after spring break.  Easley testified that after
spring break she told Gubitz about Roberts's sexual advances on her; Easley testified that Gubitz
was the first person she told about the sexual advances.  When the prosecutor asked, "Jessica,
what made you want to tell Ms. Gubitz about what was going on?" she responded, "I was tired
of it.  I didn't want it to happen anymore." (2)  Gubitz testified that, after her post-spring break
conversation with Easley, she contacted various authorities including Sergeant Bob Taggart of the
Leander Police Department.  Easley's mother said she learned of Easley's marihuana use, not
from Easley herself, but from Taggart.  There is no evidence that Taggart learned of Easley's
marihuana use or Roberts's provision of marihuana any other way than by this chain of events. 
This evidence either directly or inferentially supports the State's assertion that "[a]fter spring
break she went to her friend, who she trusted, and disclosed that she and Calvin had been smoking
marijuana, had been drinking, and the sexual acts that occurred to her over spring break."  The
argument also responded to Roberts's assertion that the girls were lying because they got caught. 
There is no evidence that Easley's confessions to her counselor were triggered by being caught
with marihuana or being out of place at spring break.  The court did not err by overruling his
objection to this argument by the State.  We overrule point three.

CONCLUSION

	Legally and factually sufficient evidence supports Roberts's conviction for
delivering marihuana to Easley on or about March 1, 1998.  The court did not err in allowing the
challenged portion of the State's argument.  Having overruled all three points of error, we affirm
the conviction.


