JASON CLAY BROWN v. THE STATE OF TEXAS--Appeal from County Court of Wharton County

NUMBER 13-01-683-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  JASON CLAY BROWN, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court of Wharton County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Jason Clay Brown, was charged with the misdemeanor offense of driving while intoxicated (DWI). A jury found Brown guilty, and the trial court sentenced him to thirty days in jail, probated for one year. By three points of error, Brown generally contends the trial court erred in finding the evidence legally and factually sufficient to sustain a conviction for DWI, and there was a factual and legal variance between the allegations pled by the State and the proof at trial. We affirm.

I. FACTS

At approximately 11:30 p.m. on March 30, 2001, DPS Trooper Daniel G. Terronez stopped Brown for a traffic violation. Trooper Terronez testified Brown=s truck straddled the middle of the road, did not come to a complete standstill at a stop sign, and made a wide turn into the other lane.

As the trooper approached the vehicle, he experienced Aa real strong odor of burnt marijuana@ from the truck. When Brown stepped out of the truck, Trooper Terronez noticed Brown=s eyes were reddened and glassy, that he walked slowly, and that he seemed dazed and confused. Shortly thereafter, as Trooper Terronez interviewed Brown=s passenger, Chris Canales, he discovered marijuana seeds in the vehicle=s ashtray and on its floor. The trooper=s observations and physical evidence of marijuana prompted him to place Brown under arrest for driving while intoxicated.

II. LEGAL SUFFICIENCY

By his first point of error, Brown contends the evidence is legally insufficient to support his conviction. Specifically, Brown argues the State failed to prove Athat marijuana is a controlled substance, drug, or a dangerous drug as required by statute.@ See Tex. Pen. Code Ann. ' 49.01(2)(A) (Vernon 1994 & Supp. 2002).

A. Legal Sufficiency Standard of Review

In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

B. Analysis

A person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a) (Vernon 1994 & Supp. 2002). The Texas Penal Code defines Aintoxicated@ as Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of the two or more of the substances, or any other substance into the body.@ Tex. Pen. Code Ann. ' 49.01(2)(A)(emphasis added).

In this case, Trooper Terronez testified he observed Brown straddle the middle of the road, roll through a stop sign, and make a wide turn into the other lane. Trooper Terronez stopped Brown and experienced Aa real strong odor of burnt marijuana@ as he approached the truck. Trooper Terronez noticed that Brown=s eyes were reddened and glassy and that Brown seemed dazed and confused. The trooper=s observations and the physical evidence of marijuana he found prompted him to place Brown under arrest for DWI. Opinion testimony of the arresting officer, standing alone, is sufficient to prove the element of intoxication. Irion v. State , 703 S.W.2d 362, 364 (Tex. App.BAustin 1986, no pet).

After proving that Brown was intoxicated by reason of marijuana, the State was not required to go further and prove that marijuana was in fact a narcotic drug. See Reyna v. State, 434 S.W.2d 362, 366 (Tex. Crim. App. 1968); Locke v. State, 329 S.W.2d 873, 874 (Tex. Crim. App. 1959).

Thus, viewing the evidence in the light most favorable to the verdict, we hold the jury could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318. Brown=s first point of error is overruled.

III. FACTUAL SUFFICIENCY

By his second point of error, Brown argues the evidence is factually insufficient to prove Athat marijuana is a controlled substance, drug, or a dangerous drug as required by statute@ Tex. Pen. Code Ann. ' 49.01(2)(A).

A. Factual Sufficiency Standard of Review

In evaluating the factual sufficiency of the evidence, this court must complete a neutral review of all the evidence. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Weighing all of the evidence, we must then determine whether the proof of guilt is so weak either as to undermine confidence in the fact finder=s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. However, we are not free to reweigh the evidence and set aside a jury verdict merely because we feel a different result is more reasonable. See id. Only when this Court determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust can we set aside a verdict for factual insufficiency. Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). A clearly wrong and unjust verdict is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@ Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998); Santellan, 939 S.W.2d at 165.

B. Analysis

Based on our analysis above, and after impartially reviewing all of the evidence and giving proper deference to the verdict, we conclude that the verdict is not so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King, 29 S.W.3d at 565; Rojas, 986 S.W.2d at 247. Brown=s second point of error is overruled.

IV. VARIANCE BETWEEN INDICTMENT AND EVIDENCE

By his third point of error, Brown contends there was a fatal variance between the allegations pled by the State and the proof at trial. Specifically, Brown claims that the indictment charged him with DWI Aby reason of introduction of a controlled substance, a drug, or a dangerous drug,@while the evidence did not show that marijuana is a controlled substance, a drug, or a dangerous drug as required by the statute.

A. Variance Standard of Review

A variance between the indictment and the evidence at trial may be fatal to a conviction, because due process guarantees the defendant notice of the charges against him. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998); Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). However, not every variance between the indictment and the proof is fatal. Rojas, 986 S.W.2d at 246. Only a material variance, which operates to the defendant=s surprise or prejudices his rights, is fatal. See Santana v. State, 59 S.W.3d 187, 195 (Tex. Crim. App. 2001);Rojas, 986 S.W.2d at 246; Human v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988). The rigid rule that a mere or slight variance between what was alleged and what was proven is sufficient to render the evidence insufficient no longer applies. Human, 749 S.W.2d at 836.

B. ANALYSIS

In order for a variance between the pleadings and the proof to exist so that the evidence is insufficient to sustain what was alleged, the variance must be material and prejudicial to the defendant. Id. There must be a real and tangible difference between the allegations in the pleadings and the proof offered in support thereof. Id.

We find no material or prejudicial variance between the pleadings and the evidence in this case. Proof of intoxication by marijuana is proof of intoxication by reason of a controlled substance, drug, or dangerous drug. See Tex. Pen. Code Ann. '49.01(2)(A); Tex. Health & Safety Code Ann. ''481.002(5), 481.032(31) (Vernon Supp. 2002); Gonzalez v. State, 323 S.W.2d 55, 56 (Tex. Crim. App. 1959) (marijuana is a narcotic drug). Therefore, the State=s indictment did not materially vary from the proof. Brown=s third point of error is overruled.

V. CONCLUSION

The evidence is legally and factually sufficient to sustain the jury=s determination that Brown was guilty of DWI. No material or prejudicial variance exists between the pleadings and the evidence in this case. Accordingly, we affirm the trial court=s judgment.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

the 1st day of August, 2002.