Kimberlin v. State, No. 05-02-02020-CR (TX 5/19/2004)
| Decision Date | 19 May 2004 |
| Docket Number | No. 05-02-02020-CR,05-02-02020-CR |
| Parties | ROBERT KARL KIMBERLIN, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the County Court at Law #3 Collin County, Texas Trial Court Cause No. 0003-80315-01.
AFFIRMED.
Before Justices WHITTINGTON, LANG and LANG-MIERS.
Appellant Robert Karl Kimberlin appeals his conviction by a jury of possession of marijuana in an amount of two ounces or less, for which he was assessed punishment at thirty days of confinement in the Collin County jail, and a three hundred dollar fine. Appellant challenges the legal and factual sufficiency of the evidence, contending that the State failed to prove that he possessed a "usable quantity" of marijuana. We affirm the judgment of the trial court.
The standard for reviewing a challenge to the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the judgment, 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, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at * 20 (Tex. Crim. App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id.
Appellant was charged by information with a Class B misdemeanor under Tex. Health & Safety Code Ann. § 481.121(b)(1) (Vernon 2003). The State had the burden to prove that appellant knowingly or intentionally possessed a usable quantity of marijuana in an amount of two ounces or less. Id. at § 481.121(a), (b). "Usable quantity" has been defined as "an amount sufficient to be applied to the use commonly made thereof." Pelham v. State, 298 S.W.2d 171, 173 (Tex. Crim. App. 1957); see also Moore v. State, 562 S.W.2d 226, 228 (Tex. Crim. App. 1977). Common uses of marijuana include smoking in cigarette form or in a pipe. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex. Crim. App. 1976).
At trial, two police officers testified that they discovered a small bag containing marijuana and some rolling papers in appellant's vehicle after he was stopped for a traffic violation. The first officer on the scene testified that when he stopped appellant, he did not detect an odor of marijuana in the cab of appellant's vehicle. The State offered the marijuana and the rolling papers into evidence and they were admitted and published to the jury. The marijuana had not been rolled into a cigarette, and there was no testimony establishing the weight of the marijuana, that the marijuana was of a "usable quantity," or that there was enough marijuana to roll into a cigarette or smoke in a pipe. There was also no evidence to the contrary.
In Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972), the Court...
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