Oscar Cervera v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-97-00862-CR
Oscar CERVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-0786
Honorable Sharon MacRae, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 16, 1998

AFFIRMED

Oscar Cervera appeals the trial court's order revoking his probation. In particular, he complains the State failed to meet its burden of proving he knowingly possessed marijuana. Because the State met its burden, we affirm.

Background

While on probation for unauthorized use of a motor vehicle, Cervera was arrested for marijuana possession. In light of this arrest, the State moved to revoke Cervera's probation. At the revocation hearing, the arresting officer and Cervera testified.

Officer David Smith testified he stopped Cervera in response to an anonymous tip that a weapon was being "flashed" by an occupant of the vehicle Cervera drove. During the stop, Officer Smith conducted pat-down searches of Cervera and his brother Eric, the only passenger in the vehicle. Finding no weapon on either person, Officer Smith proceeded to search the passenger compartment of the vehicle. Under the front passenger seat, he found a plastic sandwich bag containing a small amount of a substance that, in his opinion, resembled and smelled like marijuana. Cervera spontaneously announced the bag was his.

Although Eric was permitted to go home, Cervera was arrested. During transport in Officer Smith's vehicle, Cervera retracted his claim of ownership and stated the marijuana really belonged to Eric. Cervera told Officer Smith he had lied to prevent Eric from getting into trouble.

Cervera testified that the substance in the plastic bag was indeed marijuana but that it belonged to his brother. He further recalled that when Eric realized they had been ordered to stop, Eric panicked because he had marijuana in his pocket. Cervera stated he told Eric to throw it under the seat.

Finding the State's allegation true, the court revoked Cervera's probation. Cervera received a one-year state jail sentence.

Standard and Scope of Review

We review the trial court's order revoking probation for an abuse of discretion. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). In other words, we may not reverse the trial court's judgment unless it applied "an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996).

Argument

Cervera contends the record lacks sufficient evidence to support the revocation order. In particular, he argues there was no evidence that the substance in the sandwich bag was a usable quantity of marijuana. According to Cervera, Officer Smith could not identify the contents of the plastic bag because he had no specialized training in the identification of marijuana. Without Officer Smith's testimony, he argues, the evidence is insufficient to support the court's judgment.

To succeed in its motion to revoke, the State must prove by a preponderance of the evidence the probationer violated a term or condition of his probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983). The State meets this burden when the greater weight of credible evidence creates a reasonable belief that the defendant violated a condition of his probation as alleged by the State. Id. at 437. Finally, the trial judge is the sole trier of fact, determining the credibility of the witnesses and the weight to be given their testimony. Garrett, 619 S.W.2d at 174.

The record evidence, when viewed in the light most favorable to the trial court's ruling, reveals the State met its burden. At his revocation hearing, Cervera admitted the substance in the plastic bag was marijuana. Furthermore, Cervera declared at the scene of the stop that the plastic bag containing the marijuana was his. Standing alone, Cervera's admissions support the trial court's ruling. Even if the trial court had based its ruling on Officer Smith's observation that the substance in the plastic bag was marijuana, it would have acted within its discretion in doing so. See Campos v. State, 716 S.W.2d 584, 588 (Tex. App.--Corpus Christi 1986, no pet.). We therefore hold the trial court did not abuse its discretion in revoking Cervera's probation.

Conclusion

Having overruled Cervera's sole point of error, we affirm the trial court's judgment.

Paul W. Green, Justice

DO NOT PUBLISH

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