$7058.84 in U.S. Currency v. State

• Decision Date: 04 October 2000
• Docket Number: No. 06-99-00067-CV,06-99-00067-CV
• Citation: 30 S.W.3d 580
• Parties: (Tex.App.-Texarkana 2000) $7,058.84 IN U.S. CURRENCY, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 580

30 S.W.3d 580 (Tex.App.-Texarkana 2000)

$7,058.84 IN U.S. CURRENCY, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00067-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Argued September 14, 2000

Decided October 4, 2000

On Appeal from the 8th Judicial District Court Delta County, Texas Trial Court No. 9304

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

DONALD R. ROSS, Justice.

Roderick Rydell Minter appeals from a judgment forfeiting $7,058.84 to the State of Texas. The State alleged that the money is contraband because it was used or intended to be used in the commission of a drug-related felony, and/or was proceeds derived from the commission of such a felony. Trial was before the court, and after rendering judgment on behalf of the State, the court entered findings of fact and conclusions of law.

Police stopped Minter for speeding and for driving without a seat belt. Deputy Roy Strange testified that Minter told him he was on his way from Paris, Texas, to Commerce, Texas, to see his "home boy," whom Minter knew from school, but did not know his name. Strange also testified that he observed "a big cloud of smoke" when Minter rolled down the driver's side window and smelled a strong odor of marihuana coming from Minter's car.

Strange asked Minter to exit his vehicle and asked him if he had anything in his vehicle or on his person that he (Strange) should know about. Strange then conducted a pat-down search for weapons. The search revealed a .25 caliber handgun. Strange placed Minter under arrest for carrying an unlicensed weapon.

During an inventory search of the car, which belonged to Minter's mother,¹ Strange discovered the money underneath the back seat. The money was wrapped in seven separate bundles and was in a brown plastic bag. Each bundle contained $1,000.00 and was held together by a rubber band.² Strange testified that Minter told him the money was an inheritance from his mother, but later told another officer that it was an inheritance from his grandmother. Two canine units alerted on the bag of money.

Strange testified that Minter had a green leafy substance on the front of his shirt and in his mouth between his teeth, which Strange believed indicated marihuana.³ The inventory search also revealed a package of cigarette rolling papers. Strange testified that after he transported Minter to jail, a small plastic bag containing a green leafy substance, which Strange testified looked like marihuana, fell from Minter's pocket as he stepped into the holding cell.

Minter denied that he was speeding; denied that he was not wearing a seat belt; and denied telling Strange that he was going to see his "home boy." Instead, he maintained that he told Strange he had just taken the car to a mechanic and was on his way to see his girlfriend. He further denied smoking marihuana that day; denied that the green leafy substance found in the holding cell was his; and denied ever saying the money was an inheritance from his mother. Minter testified that he and his deceased father found $10,700.00 in his grandmother's sewing machine after her death in 1993. He stated that he had kept the money under the linoleum in his mother's closet, but then moved it to his mother's car so that his nephews would not take it. He also acknowledged that he had never reported the money to the federal government and never put it in the bank.

Minter's mother testified that she and Minter lived together in the same house, that she was retired and living on a fixed income, that Minter helped support the household with money from odd jobs, that she asked Minter to take her car to the mechanic that day, that Minter did not use her car very often, that Minter did not have money lying around, and that there was no space under the linoleum in her closet sufficient to hide a large object.

In his first through fourth points of error, Minter challenges the legal and factual sufficiency of the evidence. In his fifth through eighth points of error, Minter complains about the trial court's admitting the testimony of certain witnesses into evidence. These points are somewhat interrelated, and we will review Minter's latter contentions first.

Minter contends that the trial court erred in allowing Strange to testify that the green leafy substance found in the holding cell was marihuana. He contends that the State did not designate Strange as a testifying expert during discovery ⁴ and did not qualify him as an expert witness under Tex. R. Evid. 702.

A careful review of the record on this point reveals no error. Strange testified as follows:

Q What appeared to be inside [the small plastic bag]?

A A green leafy substance I believed to be marihuana.

[Defense Counsel]: Your Honor, we would object to any characterization of anything in a clear plastic bag would be marihuana or appeared to him to be marihuana.

THE COURT: What says the State?

[The State]: Your Honor, I think he's a trained officer. He knows what marihuana looks like. I think he would have ample basis on which to base an opinion as to whether or not it was marihuana.

Minter's attorney then objected on the ground that the State had failed to disclose Strange as a testifying expert. The trial court sustained Minter's objection, but allowed the State to rephrase the question in an effort to build a proper predicate. Strange then testified further:

Q Did you do any tests on that green leafy substance?

A No, sir.

. . . .

Q Describe for us what [the green leafy substance] looked like?

A It's a green leafy substance that has a very distinct odor to it.

Q Did you smell it?

A Oh, yeah, you could smell it.

. . . .

Q Tell us what substance, what green leafy substance that you know of, that it looks like?

A It looks like marihuana.

[Defense Counsel]: Your Honor, once again he's leading the witness.

THE COURT: Overruled.

Q Would you repeat that?

A Marihuana. That's the only other thing that I know that it looks like.

Courts have held that an experienced police officer can offer expert testimony that a green leafy substance is marihuana. Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Houlihan v. State, 551 S.W.2d 719, 724 (Tex. Crim. App. 1977); Jordan v. State, 486 S.W.2d 784, 785 (Tex. Crim. App. 1972); Boothe v. State, 474 S.W.2d 219, 221 (Tex. Crim. App. 1971), overruled on other grounds, Leday v. State, 983 S.W.2d 713, 721 (Tex. Crim. App. 1998); Satery v. State, 455 S.W.2d 294, 296 (Tex. Crim. App. 1970); Miller v. State, 168 Tex. Crim. 570, 330 S.W.2d 466, 468 (1959); Hernandez v. State, 137 Tex. Crim. 343, 129 S.W.2d 301, 303 (1938). Therefore, Strange's testimony was admissible under Rule 702, assuming that the State laid a proper predicate for his testimony. In any event, Minter did not object to Strange's testimony under Rule 702; therefore, he has waived that point for our review. See Tex. R. App. P. 33.1(a).

Further, the trial court sustained Minter's objection that Strange could not offer expert testimony because he was not disclosed as a testifying expert in discovery. However, Strange did not offer expert testimony; rather, his testimony was admissible under Tex. R. Evid. 701, which allows a lay witness to give testimony in the form of opinions or inferences that are rationally based on the witness' perception and helpful to a clear understanding of the witness' testimony or the determination of a fact issue. See Roberts v. State, 9 S.W.3d 460, 463 (Tex. App.Austin 1999, no pet.) (holding that testimony of girls - that a substance was marihuana - was admissible under Rule 701 where the girls had looked at, smelled, and smoked the substance, and where the appellant told them that the substance was marihuana). Minter saw and smelled the green leafy substance. Therefore, the State did not violate discovery by failing to disclose Strange as a testifying expert. We overrule Minter's fifth and eighth points of error.

In his sixth and seventh points of error, Minter complains of the admission of testimony from Officer Cleve Williams concerning the use of his canine unit in reference to the money. Williams testified that he had gone through a fifteen-day training course with a master trainer to learn to use the dog, that he had been using the dog for two months at the time of Minter's arrest, and that he has found the dog to be useful and reliable in detecting narcotics.

Minter first objected to Williams' testimony on the ground that Williams was testifying as an expert whom the State failed to disclose in discovery. The trial court overruled his objection, but gave him a running objection as to Williams' testimony.

Minter then objected to Williams' testimony under Rules 702 and 703. The trial court offered to let the State lay a proper predicate, which the State attempted to do by asking Williams to explain how police dogs detect narcotics. Minter objected on the ground that Williams was not an expert and could only testify about what was done in the present case. The trial court sustained that objection.

Williams then testified without objection that he took the dog into a room where the brown bag containing the money had been hidden in a filing cabinet. He testified that when they approached the filing cabinet, the dog's breathing became more intense, his body stiffened, and he began scratching furiously at the filing cabinet drawer. Williams also testified that when he opened the filing cabinet drawer, the money was inside. The State then asked Williams if he had seen the dog "give that type of reaction before," but Minter renewed his Rule 702 objection, and the trial court sustained that objection.

From the record, it is apparent that the trial court intended to allow Williams to testify to no more than what happened when he brought the dog into the room where the money was located. The trial court sustained Minter's Rule 702 objections and would not allow...