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


                  No. 06-19-00189-CR



     WILLIAM CHARLES GAFFNEY, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



           On Appeal from the County Court
                Lamar County, Texas
               Trial Court No. 67131




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                     MEMORANDUM OPINION
           A Lamar County jury found William Charles Gaffney, Jr., guilty of possessing two ounces

or less of marihuana, 1 assessed him a punishment of thirty days’ confinement in the county jail,

and recommended that he receive community supervision. The trial court sentenced Gaffney in

accordance with the verdict, suspended the sentence, and placed him on community supervision

for one year. On appeal, Gaffney challenges the legal sufficiency of the evidence supporting his

conviction. Because we find that legally sufficient evidence supports Gaffney’s conviction, we

affirm the trial court’s judgment.

I.         Background

           On February 2, 2019, Paris Police Officer B.A. Middleton stopped Gaffney’s vehicle on

NW 3rd Street in Paris because his license plates were expired. When he asked Gaffney for his

driver’s license and proof of insurance, Middleton smelled marihuana 2 emanating from either the

vehicle or Gaffney’s person and asked Gaffney to step out of the vehicle. Middleton then

performed a consent search of Gaffney and his vehicle, but did not find any contraband.

           Another Paris police officer, Dustin Calhoun, provided back up for Middleton and talked

with Gaffney as Middleton searched the vehicle. Calhoun testified that he noticed Gaffney was

not opening his mouth all the way as he talked and that he could smell a strong odor of marihuana 3

coming from Gaffney. Calhoun asked Gaffney to open his mouth, and when he did, Calhoun saw


1
    See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1).
2
 Middleton testified that he had become familiar with the smell of marihuana during his police training and his three
years of experience as a certified police officer.
3
 Calhoun testified that he had become familiar with the odor of marihuana and identifying marihuana through his
police training and his four years working as a police officer.
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marihuana in his mouth, teeth, and saliva. When asked if he ate it, Gaffney answered that he had

and that it was a little bit. He explained that he had done so because he knew he was being pulled

over. Calhoun also testified that a little bit was a usable quantity and was less than two ounces.

       Recordings from Middleton’s and Calhoun’s body cameras were also introduced and

played for the jury. The recordings captured Calhoun asking Gaffney, “[I] smell a little bit of

weed, is that what it is?” Gaffney responded, “Uh, yes, sir.” Calhoun then took photographs of

the inside of Gaffney’s mouth and asked him how much he had eaten. Gaffney responded, “Just

a bud,” and stated that he ate it. Gaffney also explained that he ate it because he did not want to

get caught with it and was trying to get rid of it. The State also introduced one of the photographs

of Gaffney’s mouth that showed a green substance stuck to his teeth, the roof of his mouth, and

under his tongue.

II.    Standard of Review

       On appeal, Gaffney challenges the legal sufficiency of the evidence that the substance he

possessed was marihuana. When evaluating legal sufficiency, we review all the evidence in the

light most favorable to the trial court’s judgment to determine whether any rational jury could have

found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).

Our rigorous 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 jury “to fairly resolve conflicts in

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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); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In drawing reasonable

inferences, the jury “may use common sense and apply common knowledge, observation, and

experience gained in the ordinary affairs of life.” Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—

Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App.

1999) (Meyers, J., concurring)). Further, the jury is the sole judge of the credibility of the

witnesses and the weight to be given their testimony and may “believe all of a witnesses’

testimony, portions of it, or none of it.” Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App.

2014). We give “almost complete deference to a jury’s decision when that decision is based on an

evaluation of credibility.” Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

       In our review, we consider “events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d

107, 111 (Tex. Crim. App. 1985)). Circumstantial evidence and direct evidence are equally

probative in establishing the guilt of a defendant, and guilt can be established by circumstantial

evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214

S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

       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 is “one that accurately sets out the law, is authorized by

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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. Under the statute and the indictment, the State was required to show

beyond a reasonable doubt that Gaffney (1) intentionally and knowingly (2) possessed

(3) marihuana (4) in a usable quantity of less than two ounces. See TEX. HEALTH & SAFETY CODE

ANN. § 481.121(a), (b)(1).

III.   Analysis

       Gaffney only challenges the sufficiency of the evidence showing that the substance he

possessed was marihuana. Gaffney contends that the evidence only shows that the officers

presumed that the substance in Gaffney’s mouth was marihuana based on the smell coming from

the vehicle or Gaffney, but that Gaffney never unequivocally admitted that he had possessed or

eaten marihuana. Since neither the substance nor Gaffney’s blood were tested, Gaffney contends

that the State did not prove beyond a reasonable doubt that the substance was marihuana. We

disagree.

       Police officers, based on their training and experience, may identify a substance as

marihuana. Boothe v. State, 474 S.W.2d 219, 220–21 (Tex. Crim. App. 1971), overruled on other

grounds by Leday v. State, 983 S.W.2d 713, 721 (Tex. Crim. App. 1998). Such testimony is

sufficient to support a jury’s determination that the substance was marihuana. Boothe, 474 S.W.2d

at 221. The Texas Court of Criminal Appeals has explained that “marihuana is a substance that




                                                 5
both officers and the common lay witness can identify through simple use of his senses.” 4 Ex

parte Owens, 515 S.W.3d 891, 899 (Tex. Crim. App. 2017); see Osbourn v. State, 92 S.W.3d 531,

537–39 (Tex. Crim. App. 2002) (“Although it cannot be presumed that everyone is capable of

identifying marihuana by smell, a witness who is familiar with the odor of marihuana smoke

through past experiences can testify as a lay witness that he or she was able to recognize the odor.”).

         In this case, both officers testified that they were familiar with the smell of marihuana and

that they could identify it because of their training and experience. Both testified that the smell of

marihuana emanated from Gaffney. Calhoun also identified the substance in Gaffney’s mouth as

marihuana. In addition, both the testimony of Calhoun and the recordings from the officers’ body

cameras established that Gaffney admitted that he had possessed a “bud” of “weed,” or marihuana,

and that he had eaten it in an attempt to evade its detection by the officers. Based on the officers’

testimony and Gaffney’s statements, any rational jury could have reasonably inferred that the

substance in Gaffney’s mouth was the remains of the marihuana that he had possessed and eaten.

         We find that this evidence was legally sufficient to support the jury’s determination that

the substance possessed by Gaffney was marihuana. We overrule Gaffney’s sole issue.




4
 We note that the Legislature has recently excluded “hemp, as that term is defined by Section 121.001, Agriculture
Code” from the definition of marihuana. TEX. HEALTH & SAFETY CODE ANN. § 481.002(26)(F) (Supp.). Because of
the similarities in the definitions of marihuana and hemp, the continued viability of the holding that officers and lay
witnesses may identify marihuana through their senses alone may be in question. Compare TEX. HEALTH & SAFETY
CODE ANN. § 481.002(26) (Supp.) (defining marihuana as “the plant Cannibas sativa L.”) with TEX. AGRI. CODE ANN.
§ 121.001 (Supp.) (defining hemp as “the plant Cannibas sativa L . . . with a delta-9 tetrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis.”). We need not address this question, however,
because at the time of this offense, the Texas Health and Safety Code did not exclude “hemp” from the definition of
marihuana. See Act of May 22, 2001, 77th Leg., R.S., ch. 251, 2001 Tex. Gen. Laws 466–67 (amended 2019) (current
version at TEX. HEALTH & SAFETY CODE ANN. § 481.002(26)); TEX. GOV’T. CODE ANN. § 311.031(a)(3).
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IV.   Disposition

      For the reasons stated, we affirm the trial court’s judgment.




                                                    Ralph K. Burgess
                                                    Justice

Date Submitted:      January 28, 2020
Date Decided:        January 29, 2020

Do Not Publish




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