Jeremy Andrew Siebers v. The State of Texas--Appeal from County Court of Gillespie County

MEMORANDUM OPINION

No. 04-03-00085-CR

Jeremy Andrew SIEBERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court, Gillespie County, Texas

Trial Court No. CC-9458

Honorable Mark Stroeher, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

The trial court found defendant, Jeremy Siebers, guilty of possession of marihuana under two ounces and sentenced him to ninety days' confinement with a $600 fine. In two issues on appeal, defendant asserts there is no evidence the alleged offense occurred in Gillespie County, Texas and no evidence he possessed a usable quantity of marihuana. We conclude venue is proper in Gillespie County and there is sufficient evidence to establish defendant possessed a usable quantity of marihuana; therefore, we affirm.

FACTUAL BACKGROUND

On April 6, 2002, Officer Castaneda of the Fredericksburg Police Department stopped defendant for a defective registration lamp. Officer Gibson, a sergeant with the Fredericksburg Police Department, arrived to aid Officer Castaneda in the traffic stop. While the two officers wrote up defendant's warning citation, they noticed that he began to act suspiciously. They observed defendant looking into his rearview mirror trying to locate their whereabouts. The officers then saw defendant place a substance in his mouth and take an unidentified object out of the ashtray and place it on the passenger side floorboard. In light of defendant's actions, Officer Castaneda asked defendant to step out of his car to discuss his warning citation. While discussing the citation with defendant, Officer Castaneda noticed him chewing on an unidentified substance. During Officer Castaneda's discussion with defendant about the citation, Officer Gibson looked into the vehicle where he noticed a rolled marihuana cigarette in plain view on the passenger side floorboard. Officer Gibson notified Officer Castaneda of the marihuana cigarette. Upon obtaining this information, Officer Castaneda asked defendant to open his mouth where he observed a green leafy substance that he identified as marihuana. Officer Castaneda subsequently placed defendant under arrest for possession of marihuana.

In his first issue on appeal, defendant asserts there is no evidence that the alleged offense occurred in Gillespie County, Texas. Defendant contends neither of the officers testified that the alleged offense occurred in Gillespie County.

A plea of not guilty puts into issue the allegations of venue, and the State must prove such allegations. See Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). The State may prove venue by a preponderance of the evidence and through either direct or circumstantial evidence. Lee v. State, 903 S.W.2d 845, 847 (Tex. App.--Beaumont 1995, pet. ref'd). We must presume the State proved venue unless: (1) defendant disputed venue in the trial court or (2) the record affirmatively rebuts the presumption of venue. See Tex. R. App. P. 44.2(c)(1); see also Henley v. State, 98 S.W.3d 732, 734 (Tex. App.--Waco 2003, pet. ref'd); Lee, 903 S.W.2d at 847.

Here, defendant did not dispute the issue of venue at trial. Accordingly, we must determine whether it affirmatively appears from the record that venue was not properly in Gillespie County. Evidence in the record shows that both Officer Gibson and Officer Casteneda were police officers with the City of Fredericksburg. Officer Gibson testified that he assisted Officer Casteneda with the traffic stop and subsequent arrest of the defendant in the 100 block of North Llano. While there is no direct evidence that the offense occurred in Gillespie County, Texas, the record does not affirmatively rebut the presumption that venue was properly in Gillespie County. Accordingly, we overrule defendant's first issue.

In his second issue on appeal, defendant asserts there is no evidence that he possessed a usable quantity of marihuana. Defendant does not indicate whether he challenges the legal or factual sufficiency of the evidence. In addition, he does not refer us to an appropriate legal standard for either challenge or point us to any contrary evidence in the record. Based on our reading of his arguments, we review only the legal sufficiency of the evidence.

When considering a legal sufficiency challenge, this court must review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We accord great deference to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

The State must prove defendant intentionally and knowingly possessed a usable quantity of marihuana. See Tex. Health & Safety Code Ann. 481.121(a) (Vernon 2003). To constitute an unlawful act of possessing marihuana, defendant must possess an amount sufficient to apply it to the common use of smoking it in cigarettes. See Andrade v. State, 662 S.W.2d 446, 449 (Tex. App.--Corpus Christi 1983, pet. ref'd). This court may take judicial notice that an amount sufficient to use in cigarette form is a usable quantity. See id.

The State presented testimony from Officers Castaneda and Gibson to prove defendant possessed marihuana. Officer Castaneda testified that he has attended training and schooling for the purpose of teaching officers to identify controlled substances such as marihuana. He testified that he has identified marihuana in the field on many occasions and made more than 100 arrests involving the possession of marihuana. He also testified that his training enabled him to distinguish a marihuana cigarette from a regular cigarette. Officer Castaneda testified that his experience and training with controlled substances over six and half years as a police officer enabled him to identify the green leafy substance in defendant's mouth as marihuana. Officer Gibson testified that he has five and a half years' experience as a certified peace officer in Texas. He testified, and defendant stipulated, that he has extensive experience in drug arrests and identifying controlled substances such as marihuana. During direct examination, he testified that he saw a marihuana cigarette in plain view on defendant's passenger side floorboard. In addition, he testified that he smelled a distinct smell of marihuana on defendant's breath while defendant talked to Officer Castaneda.

Viewing the evidence in the light most favorable to the verdict, we conclude there is sufficient evidence defendant possessed a usable quantity of marihuana, therefore, we overrule his second issue on appeal.

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH