Cooper v. State

¶1dissenting.

¶2I respectfully dissent. The officer’s testimony was not sufficient to prove a usable quantity of marihuana.

¶3The information in the present case charged that appellant “did unlawfully and knowingly possess a usable quantity of marihuana in an amount of less than two (2) ounces.” At trial the only evidence regarding the amount of marihuana taken from appellant was the arresting officer’s testimony that he opened appellant’s purse and found “some” marihuana. When the State asked if “on this occasion, did this defendant knowingly possess a usable quantity of marihuana,” appellant’s objection to the question was sustained. The State did not pursue the matter nor did it establish the actual amount found other than to establish that it was less than two ounces. The marihuana was not introduced into evidence at trial.

¶4On motion for rehearing the State urges consideration of the following testimony:

Question (by Mr. Larson): And the stuff you found in this bag — is it a plastic bag?

Answer (by Officer Stephen): Yes sir.

Question: All right. The stuff you found in the plastic bag, did it have any stocks in it? Do you recall?

Answer: I don’t recall.

Question: You don’t recall. What were the leaves — what did they look like or *73what — was it leaves? How did you know it was leaves?

Answer: It was chopped up.

Question: It was chopped up real fine, wasn’t it?

Answer: Well, not real fine. It had some bulky material in it. I am sure it had some stems in it.

Question: A minute ago, you were saying you didn’t remember. Now, which is it?

Answer: Well, the fact that there were also a couple of marijuana cigarettes in there.

Question: Well how do you know they were marijuana cigarettes?

Answer: I assumed that they were.

Question: You assumed that they were?

Answer: Yes, sir.

Question: You are using the same — the same basis that this is what you assumed those to be marijuana cigarettes, you are using that as the same basis of what you thought was in that sack, too, right?

Answer: Yes, sir. (Emphasis added)

¶5The State contends that the officer’s testimony that there were two marihuana cigarettes in the bag is sufficient evidence to show a usable quantity of marihuana.

¶6In my opinion the officer’s testimony is not proof of the presence of two marihuana cigarettes. When asked how he knew they were marihuana cigarettes, the officer replied that he assumed they were. This assumption-does not rise to the level of the type of evidence required to support a criminal conviction. The Court of Criminal Appeals, as recently as December 23, 1981, quoted an officer’s testimony and held that an officer cannot assume that there might be a possible violation of the law. McGlynn v. State, No. 67,435 (Dec. 23, 1981) (not yet reported). Since the assumption is not evidence, there is no proof in the record to show the existence of two marihuana cigarettes.

¶7Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.05(a) (Yernon 1976) (the Controlled Substance Act) provides “[A] person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.” This statute repealed Tex.Penal Code art. 725b which contained no requirement that the amount of marihuana possessed be sufficient for use.1 Because the statute requires, as an element of the offense, that the defendant possess a usable quantity of marihuana, the burden of proof is on the State to establish that element beyond a reasonable doubt. Moore v. United States, 429 U.S. 20, 21, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978). In this case there was no testimony regarding the quantity of marihuana possessed by appellant, no stipulation in the record regarding the quantity and the marihuana was not introduced at trial. The State thus failed to prove that the marihuana in question was a usable amount as required by the Controlled Substances Act.

¶8I do not contend that expert witness testimony is required in order to establish that the quantity of marihuana possessed by a defendant is a usable quantity although I note that in Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976) the court encouraged such proof by saying “Hopefully prosecutors in the future, since expert witness testimony is necessary in most cases to establish the substance in question is marihuana, will take a few seconds longer to establish through such witness that the amount of marihuana involved is a ‘usable quantity.’ ” Id. at 780. Nor do I argue that a court may not take judicial notice that a certain amount of marihuana is a usable amount. See Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); Lejeune v. State, supra. I am simply of the view that where the State fails to establish in any way that the amount of marihuana possessed by a de*74fendant is a usable amount, a conviction cannot be sustained.