Ward v. State

¶1concurring.

¶2The court of appeals found that Officer Lybrand testified “that the substance was, in his opinion,1marihuana,” but the dissenting justice pointed out correctly that what the officer actually testified was that he found in an envelope a baggie “containing a substance I believed to have been marihuana.”

¶3The majority of this Court now opines that “although he used the concept belief to describe his thoughts, Officer Lybrand was giving his expert opinion on the identification of the substance as marihuana,” and then directs the reader: “See McCormick and Ray, Texas Practice: Law of Evidence, (3rd Ed.1980) Sec. 139.” The section is captioned “General Test for Receiving Opinions of Lay Witnesses — Ratiocinative Opinions (Understanding, Impression, Belief, etc.). And therein lies the weakness of the rationale of the majority on this point. Lay witnesses are allowed some latitude in expressing themselves, but Officer Lybrand is *648found to be an expert when it comes to identifying a substance as marihuana.

¶4To aid a finder of fact an expert may give an opinion founded on his skill, knowledge or experience regarding a matter beyond that of average laymen. Ray, Law of Evidence § 1400, 2 Texas Practice 23-26. However, I find it most doubtful that Officer Lybrand was testifying in an expert capacity. After all, it was he who chose to speak in terms of what he “believed,” for his use of the word came in response to a question about what he found in the envelope. The questioner simply picked up on that, and sought to bolster a likelihood that the “belief” was well founded, but in my view he did not ever attempt to elevate the officer to expert status on identifying a substance as marihuana.2 Accordingly, I would not fault appellant, as the majority does, for failure to object to the officer’s “testimony as an expert witness,” nor then rely on that alleged failure to find eviden-tiary support sufficient to show the substance was in fact marihuana.

¶5To be straightforward about the matter, let us revisit what seems to be the first decision of the Court on this particular point: Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301 (1938). The Court held that three Bee County officers were properly permitted to state their respective opinions — over objection not qualified as experts to give it — that substance in four cigarettes was marihuana, following testimony “showing that they were familiar with marihuana,” id.,129 S.W.2d at 303.3 The sole case cited as authority is Miller v. State, 50 S.W. 704 (Tex.Cr.App.1899), which upheld admitting testimony of a lay witness that an odor he smelled was from chloroform — over objection that he was not an expert on medicines and drugs; it in turn cited Conner v. State, 6 Tex.App. 455 (1879). Thus, the Court treated the Bee County officers as laymen expressing opinions based upon familiarity with marihuana gained through experiences as law officers, and found their testimony that the cigarettes contained marihuana was sufficient evidence to support a verdict of guilt.

¶6Since then the Court has accepted testimony from peace officers whose experience is shown to be adequate — without requiring that they be qualified as experts. See Alcala v. State, 163 Tex.Cr.R. 453, 293 S.W.2d 645 (1956); Satery v. State, 455 S.W.2d 294, 296 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Houlihan v. State, 551 S.W.2d 719, 724 (Tex.Cr.App.1977). On the other hand, in Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959), testimony of an arresting officer that the substance seized was marihuana was found sufficient, in that his experience as a narcotics officer was enough “to show his qualifications to testify as an expert,” id., at 468;4see similarly, Jordan v. State, 486 S.W.2d 784, 785 (Tex.Cr.App.1972). Then, in Pittman v. State, 488 S.W.2d 89 (Tex.Cr.App.1972), writing as commissioner, Judge Dally, seems to have melded both notions into one: “... the arresting officer, who by his training and experience was shown to be an expert in the identification of marihuana ...,” id., at 91.

¶7Instead of mixing differing concepts of expression of “belief” by lay witnesses and “opinion” by experts, this Court should delineate the two for the bench and bar, and then leave it to the prosecution to opt for one or the other, depending on training, experience and qualifications of the particu*649lar witness being offered to prove a substance is marihuana.5

¶8Returning to the instant cause, I would find that the State did not undertake to, and did not in law, qualify Officer Lybrand as an expert, but relied on his familiarity with marihuana to support his stated belief that the bagged substance in the envelope was in fact marihuana — the lay witness rule. I would then hold that, though marginal at best, his testimony is sufficient to support the finding of the trial court that appellant possessed less than two ounces of marihuana. Hernandez v. State, supra, and its progeny cited ante.

¶9Therefore, I agree that ground three must be overruled and, reluctantly, that the judgment of the court of appeals be affirmed.6 Accordingly, I join the judgment of the Court.