*1 Roy WARD, Appellant, Lee Texas, Appellee.
The STATE of
No. 688-82.
Court of Criminal Appeals of
En Banc.
Sept. Hoffman, McCorkle,
Michael R. Tom S. Dallas, for appellant. Wade,
Henry Atty. Dist. and Karen Chil- Beverly, Dallas, ton Asst. Dist. Atty., Rob- Huttash, ert Atty. State’s and Alfred Walk- er, Austin, Atty., Asst. State’s for the State. OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW CAMPBELL, Judge.
In a trial before the court the was convicted possession unlawful less than two Pun- ounces of marihuana. ishment was assessed at one *2 what the officer fine. substance seized with Appeal Dallas Jail and a $200 marihuana. for the knew to be was taken to the Court of Fifth Judicial District of Supreme was marihuana undisputed that the It is Dallas, affirmed the conviction. This introduced, analysis was a chemical nor granted appellant’s petition State, however, contends introduced. 13, 1982. discretionary review on October in the testifying was Lybrand that Officer on the witness and of an capacity of grounds advances three appellаnt and train- his previous basis of error: that was not marihua- identification of regarding the ing time limit set applicable trial within the concern- Lybrand’s na. Officer Act, 32A.02, Y.A. Speedy forth in the Trial as follows: the marihuana is ing C.C.P.; search of his car inventory Sir, have tes- you “Q. Amendment of the violated the Fourth [PROSECUTOR]: you the substance that tified that I, and Article United States Constitution a sub- envelope Constitution, found in the Texas Section 9 of marijuana, believed to be you stance therefrom the contraband obtained you, you prior me ask have evidence; let improperly admitted into — had become an officer your having the evidence was insufficient whatsoever in any training had you seized was mari- prove that the substance narcotic sub- the identification of disagree huana. We and affirm. stances? July that on The record reflects Yes, I had. “A. Police De- Lybrand of the Dallas consist training “Q. And what did traveling truck partment pick-up noticed a of? following of After high speed. at a rate blocks, five Of- the truck for approximately my police of in “A. It consists —in the truck ficer established Lybrand Academy it cоnsists Dallas Police mile hour in a 35 traveling per 50 miles and certain marijuana training Lybrand per hour zone. When Officer recog- that would pills types appellant siren he saw the turned on his nized. holding right,
lean over to his extreme in- instructions your what did “Q. And steering wheel with his left hand. Officer clude? leaned appellant said that as the “A. I don’t understand— over, something.” appeаred doing “he to be instruction, or how was the “Q. What appellant pulled over recog- how to you instruct they appel- license. The asked to see his driver’s these substances? nize lant answered that he had no identification marijuana and samples had They “A. arrest. The so him under Lybrand placed for us pills of the samples had placed in the back to оbserve. began to car and Officer police seen have “Q. you So of the truck make an search course? marijuana and its contents. protect order to the vehicle Yes, sir. “A. During yellow the search he saw the driver’s seat sticking out between later, I work your And in “Q. Okay. en- opened seat. He passenger’s been a had you testified you believe containing baggie inside found a velope and during years, five officer for police marihuana. he believed to be a substance period, year that five alleged, of the offense the date many case, sir, had you had possessed that the substance failed to show marijuana to confront opportunities Specifi- was marihuana. as a work yоur course de- was no there complains cally, officer? police the sub- of the characteristics scription Yes, I had. “A. sir. comparison seized, there stance nor was “Q. you Had made substance, actual arrests for the identity of the nor was he cross-
possession of marijuana?
examined on his “belief” as to the identifi-
cation he had made. Nеither did defense
Yes, sir,
“A.
numerous times.
object
counsel
to Officer
testimo-
Lybrand’s
“Q.
occasions, sir,
In those prior
had you
ny
as an
witness or to his ability to
had any laboratory analyses run on
a substance as
identify
marihuana.
those
substances
determine
*3
clear from
the above
al-
whether or not in fact it did analyze
though
concept
he used the
“belief” to de-
mаrijuana?
thoughts,
scribe his
Lybrand
Officer
Yes,
“A.
sir.”
giving his expert opinion on the identifica-
[Objection by defense counsel overruled.]
tion of the substance as marihuana. See
“Q.
sir,
Okay. And
were your suspi-
Ray,
McCormick and
Texas
Law
Practice:
cions in many past cases confirmed
(3rd Ed.1980),
of Evidence
Sec. 1938. The
about the substance being marijua-
evidence
was sufficient
the trial
na?
appellant
court’s conclusion that
Yes,
“A.
sir.
guilty
possession
of the offense of
of mari-
huana.
“Q.
See Houlihan v.
On the
question,
this sub-
719 (Tex.Cr.App.1977);
stance
Boothe v.
you
have testified
about,
(Tex.Cr.App.1971);
S.W.2d 219
Miller
sir,
was in the envelope,
about how
Tex.Cr.R.
much did there
appear to
(1959);
be in the envelope?
Hernandez v.
137 Tex.Cr.R.
(1938)
marijuana said he in that did not have one with him. Officer envelope roll, at least then asked the say, marijua- appellant step one cigarette? na out of the truck and he arrested him. An inventory search of the truck was conduct- Yes, “A. sir. ed, during which Officer Lybrand found the “Q. marijuana More than one cigarette? marihuana in an between the Yes, “A. sir. front seats. Neither at appeal trial nor on “Q. Would it be many? attemрted justify has Yes, “A. sir. It would.” search of the truck as but an anything inventory search. Cross-examination of Of- That testified that ficer defense by produced counsel he believed1 the substance discovered to be the following colloquy: marihuana does not render the evidence insufficient to show that “Q. Did the fact saw these you fact was marihuana. Officer Lybrand gestures did dеfendant not time express any doubt as to the stopping him for as he speeding emphasis supplied throughout by 1. All cated. opinion writer of this unless otherwise indi- on The record reflects that the
turned the corner off of Hatcher 28, 1980, July arrested on and released Wellington, part what following day. bail the mind to conduct the play your by with the offense information chаrged inventory search? MB-80-40734-B, No. and the filed in Cause “A. None what-so-ever.” cause on ready3 announced proof burden of first set on 1980. The case was August lawful search. State to show a docket on October the trial court’s (Tex.Cr. Benavides v. appellant’s continued at whereupon it was contends that App.1980). 1980 for a trial until December request showing there was no that the seizure Upon the court. motion before justified cause was search of the truck was the affidavit in the subsequent State that the in- quashed the ve trial court showing signed, because there was no on December 1980. On to traffic or was a formation impediment hicle was an *4 the case under the refiled same date State stopped. hazard on rоad where it was the a writ- and filed Cause No. MA-80-6485-B however, case, the In the instant State ready for trial on ten announcement of search. justification inventory for the show 21, 1981. January al testified that he had Officer ready determined that the “if the State appellant argues The He placed custody jail. be in and taken to 30, December for trial on ready was not inventory an further testified that made at all times 1980, ready then it had not been the protect search of the truck in order to The record disagree. We prior thereto.” placing pound vehicle it in the auto by erroneously was affidavit reflects that the articles in any in valuable protect 30, 1980, order it and on December signed, not police them in the by placing the truck affidavit substi- and a new was dismissed inventory The property room. department ready announced it. The tuted for State 1980, conducted for no reason search was not and there is August for trial on contends; clearly, the appellant show that the State in the record to nothing allowed properly could not have August to trial on proceeded not have could the scene away to drive from 1980. December or on of Impoundment a driver’s license. without a contention that appellant’s is the logical and would have been the the vehicle in essential absolutely is valid information of the arrest had proper consequence for trial. readiness to show the State’s order on thе scene wife arrived appellant’s of a that the existence has held This Court home.2 take the truck of is an element instrument charging valid Dakota was authorized under South search v. Pate preparedness. State S.Ct. Opperman, U.S. However, in (Tex.Cr.App.1980). violation was not a (1976)and L.Ed.2d 1000 been not have Pate, could supra, State Texas Constitutions. or of the Unitеd States was no because there days within 120 ready and ad lawfully seized The marihuana information felony or indictment into evidence. mitted announced could have State find the We or otherwise. the trial valid ready, of an announcement between distinction for dis- his motion in denying court erred or information on no indictment ready Act because Trial Speedy missаl under on a defective ready of announcement trial within for ready was not the State para- of to be 32A.02, or information indictment Art. sixty days. of statutory limit significance. mount 1(3), V.A.C.C.P. Sec. Attorney written filed a An Assistant District 3. Appellant’s inventoried truck was
2.
August
“ready”
appellant’s
file-marked
wife.
announcement
to the arrival
appel-
the reason
is silent as to
The record
presence
of the arrest.
scene
at the
lant’s wife’s
Barfield
Speedy
preparedness
Trial Act does not re
trial. See
a
quire
perfect State,
ready
(Tex.Cr.App.1979).
State be
Although
indictment or information.
that in
We note
Kernahan
be true that
the defect in the first
may
(Petition for
(Tex.App.1982)
S.W.2d 210
required
affidavit would have
a
or
mistrial
Discretionary
granted),
Review
the Court
conviction,
of a
reversal
presence
El
exist
Appeals in
Paso stated
“the
problem
necessarily
such a
does not
indicate
is as
charging
ence of a valid
instrument
ready
was not
for trial. The
preparedness
much an
element
Speedy
anticipates
Trial Act itself
fact
evidence,
acquisition
availability
witness
might
situаtions
which a mistrial
defendant,” citing
Pate
presence
granted or
Art.
conviction reversed. See
(Tex.Cr.App.1980).
ally, J., if an TEAGUE, indictment or infоrmation is dissents. *5 (within be found to defective statutory the CLINTON, Judge, concurring. limit) is and dismissed on motion the State, then between delay the dismissal appeals The court found that subject the refile is to was, exclusion. See Lybrand the testified “that substance 32A.02, Art. 4(7), Sec. A defec marihuana,” V.A.C.C.P. in his but opinion,1 the dissent- tive indictment or information is thereby what ing justice correctly out that pointed treated in much the same manner as other the he officer testified was that causes for trial delay. Thus nature the “containing a envelope baggie found in an a the length defect and the of reasonableness substance I believed to have been marihua- of delay weighed are to be in determining na.” whether or not the State is indeed not majority opines The this Court now prepared for trial. total Certainly the fail “although that to concept used the belief ure to file an indictment or information thoughts, describe his
indicates some trial unpreparedness for on expert on the identifica- giving opinion his State; however, the part same, the marihuana,” and tion of substance as the cannot be sаid unsigned for a mistakenly the directs reader: “See McCormick affidavit in support of information. Evidence, Law of Ray, Texas Practice: is (3rd Ed.1980) cap-
In the instant case the in the 139.” section error Sec. first Receiving Opinions information was corrected on the same tioned Test for “General Lay Opinions error was discovered. The Witnesses—Ratiocinative etc.). Belief, (Understanding, Impression, has not shown that the State’s lies of the ration- announcement of was not made in And therein the weakness good Lay or majority point. faith that the State was otherwise ale of the on this has latitude ex- unprepared trial. not witnesses are allowed some themselves, sufficiently claim of but Officer pressing rebutted State’s Kemаhan, supplied throughout supra, principally emphasis 1. All 17.151, V.A.C.C.P., upon opinion relied Art. it was indi- writer of unless otherwise upon 17.151, granted Art. that the court cated. request corpus his for habeas relief. 648 expert expert
found to be an when it comes to on medicines drugs; in turn identifying a substance as marihuana. State, Tex.App. cited Conner v. 6 455 Thus, Bee (1879). the Court treated the may To a finder an expert aid of fact laymen as expressing opin- officers skill, give an on his knowl- opinion founded familiarity ions based with marihuana a edge experience or matter be- regarding officers, law gained through experiences as yond average that of Law of laymen. Ray, ciga- and found their Evidence 2 Texas 23-26. Practice § rettes contained marihuana was sufficient However, I find it most doubtful that Offi- a support guilt. evidence verdict of to expert cer in an testifying all, After it was he who chose to capacity. accepted has testi Since then “believed,” speak in terms of what he whose mony peace from officers his use to a response word came adequate rеquiring is shown to be —without question about he found en- what experts. See Alca qualified be velope. picked on questioner simply up State, 453, 293 163 la Tex.Cr.R. S.W.2d to a sought bolster likelihood State, (1956); 455 S.W.2d Satery 645 founded, in my “belief” well but Boothe v. (Tex.Cr.App.1970); view to attempt he did ever elevate Houlihan (Tex.Cr.App.1971); S.W.2d officer on identifying status (Tex.Cr.App. Accordingly, substance as marihuаna.2 hand, 1977). On the other Miller majority would not fault as the appellant, 168 Tex.Cr.R. 330 S.W.2d does, object for failure to officer’s arresting (1959), testimony of an officer witness,” “testimony as an nor then seized was marihuana rely alleged eviden- failure find sufficient, his experience was found tiary the sub- show sufficient enough officer “to show narcotics stance was in fact marihuana. еxpert,” as an qualifications testify his matter, To straightforward about the 468;4 id., see Jordan v. similarly, let us revisit what to be the first seems 784, 785 (Tex.Cr.App.1972). particular decision of the Court on this Then, State, 488 in Pittman v. Tex.Cr.R. point: Hernandez v. *6 commissioner, as (Tex.Cr.App.1972), writing 343, 129 held (1938). to melded both Judge seems have Dally, that three Bee officers were proper officer, arresting “... notions into one: ly permitted respective opin to state their training experience was by his and who ex objection qualified ions —over as in the identification shown be an perts in four give it —that ...,” id., 91. of marihuana at marihuana, cigarettes following testi mixing differing concepts of Instead of mony “showing familiar were and by lay “belief” witnesses expression of marihuana,” id., at 303.3 de- experts, this Court should “opinion” by authority cited is Miller v. sole case bar, and and for the bench lineate two (Tex.Cr.App.1899), S.W. prosecution opt leave to the of a witness upheld admitting testimony lay other, depending training, or the chloro one that an odor smelled was from particu- of the qualifications objection that he was not an and form —over finding 4.Curiously, posses- followed citations past 2. arrests for That the officer made marihuana, and, laboratory analy- supra, Alcala to Hernandez sion many past ses, “suspicions State, supra, yet cases [were] his each considered being marihua- testimony coming confirmed about the substance identifying from officers speaks ex- na” more to the need tеchnical lay expressing opinions as rather witnesses testing by chemist amination qualified experts. than expertise than officer. that, nightwatchman after A testified 3. further it, lighting taking cigarettes one marihuana, opinion. in his smell was that being
lar witness prove offered to a sub-
stance is marihuana.5
Returning cause, to the instant I would
find to, State did not undertake law, did not in qualify
as an expert, but relied on familiarity his
with marihuana his belief stated bagged substance in the
was in fact marihuana —the lay witness
rule. I would then though hold mar-
ginal best, his is sufficient to
support the finding of the trial court that
appellant possessed less than two ounces of
marihuana. Hernandez
its progeny cited ante.
Therefore, I agree that ground three and,
must be overruled reluctantly,
judgment of the court of be af- appeals
firmed.6 Accordingly, join judgment
of the Court. THOMPSON,
Toni Mudd Appellant, Texas,
The STATE Appellee.
No. 1009-82.
Court of Criminal
En Banc.
Sept. *7 State, lay (Tex.Cr.App. Let it be understood that thе Backer witness rule 656 463 S.W.2d presently State, 646, 1983) Gary available for identification mari 647 649 S.W.2d huana, and not some other sub (Tex.Cr.App.1983). merely controlled The case at bar is appear stances such as heroin in white or example just majority how far the another powdery form. Curtis v. brown willing “inventory go finding search” (Tex.Cr.App.1977), and see Jones S.W.2d Opper was “authorized under South Dakota v. (Tex.Cr.App. man, L.Ed.2d 428 U.S. 96 S.Ct. 1976); Duran v. (1976),” though slightest it bears (Tex.Cr.App.1977). long The Court has made legal resemblance the factual context or just Pesina v. such a distinction. justifications espoused by Supreme (Tex.Cr.App.1978). n. 1 Opper of the United States in South Dakota v. man, (Clin supra. See Backer v. protestations my upheld 6. Over the Court has Dissenting). again protest, ton Once must “inventory the obnoxious search” and extended obviously but to dissent further is futile. reason, original beyond e.g., its rationale far