EDWARD MICHAEL LOPEZ v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Nueces County

NUMBER 13-05-00527-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

EDWARD MICHAEL LOPEZ, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law Number 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa

Following a bench trial, the trial court found appellant, Edward Michael Lopez, guilty of the misdemeanor offense of possession of marihuana and assessed his punishment at ninety days' confinement in the Nueces County Jail and a $1,000 fine. However, the trial court suspended the jail sentence and placed appellant on community supervision for a term of one year. In two issues, appellant complains that the evidence is legally and factually insufficient to prove him guilty beyond a reasonable doubt. We affirm.

Pursuant to a search incident to an arrest for public intoxication, the arresting officer found a "bundled up" red and white napkin in the front right pocket of appellant's pants. The napkin contained a usable amount of marihuana, and appellant was arrested for the offense of possession of marihuana.

In his first and second issue, appellant complains that the evidence is legally and factually insufficient to prove him guilty beyond a reasonable doubt. Specifically, appellant contends the evidence is insufficient to support his arrest for public intoxication. Therefore, he argues, the arresting officer lacked probable cause to arrest him, and the search incident to that arrest was invalid.

In response, the State asserts that there is a distinction between issues of sufficiency and admissibility, and the validity of the search incident to arrest is irrelevant to a sufficiency review. We agree.

Although appellant posits his argument as one of legal and factual sufficiency, essentially he is attempting to challenge the admissibility of the marihuana. However, appellant did not file a motion to suppress the marihuana, and he did not object to the introduction of the marihuana at trial. Appellant, therefore, waived any error on appeal. See Tex. R. App. P. 33.1(a) (providing that a party must make a timely and specific objection, request, or motion at trial to preserve error for appellate review).

Furthermore, the Texas Court of Criminal Appeals has recognized that questions of sufficiency and admissibility are fundamentally distinct issues:

"Sufficiency" relates to whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible. "Admissibility" relates to the fairness of introducing evidence and its logical relevance. Accordingly, legal and factual sufficiency issues must relate to the elements of the offense. The issue of whether or not evidence was illegally obtained is not an element of the offense.

 

Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004) (citing Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.-Houston [14th Dist.] 2003, pet ref'd)) (emphasis in original).

The offense in the present case is "possession of marihuana." Thus, a proper sufficiency review requires the determination of whether the elements of the offense of possession of marihuana were established. The elements of the offense of public intoxication, which was the basis for the search leading to the discovery of the marihuana, are not relevant to the sufficiency review of appellant's conviction for possession of marihuana. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (holding that the legality of a detention is not an element of the offense charged but merely relates to the admissibility of evidence).

Because appellant has not challenged the legal and factual sufficiency of the evidence of the offense of possession of marihuana, we overrule his first and second issues.

The judgment of the trial court is affirmed.

 

FEDERICO G. HINOJOSA

Justice

 

Do not publish. See Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 10th day of August, 2006.