Moore v. State, 54207

• Decision Date: 16 November 1977
• Docket Number: No. 54207,54207
• Citation: 562 S.W.2d 226
• Court: Texas Court of Criminal Appeals
• Parties: William Kyle MOORE, Appellant, v. The STATE of Texas, Appellee.

Page 226

562 S.W.2d 226

William Kyle MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 54207.

Court of Criminal Appeals of Texas.

Nov. 16, 1977.

State's Motion for Rehearing Denied Feb. 8, 1978.

R. Leonadis McKinney, III, Colorado City, on appeal only, for appellant.

Frank Ginzel, Dist. Atty., Colorado City, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant's probation. The trial judge found that the appellant had violated a condition of his probation, sentenced the appellant to confinement in the county jail for 60 days, and imposed a fine of $100.

The appellant's contentions are numerous. Due to our disposition of the case, we need only consider the appellant's contention that the trial judge abused his discretion in holding that the appellant violated a condition of his probation by possessing a usable quantity of marihuana. ¹ We reverse the conviction and remand the cause.

On January 12, 1976, the appellant pleaded guilty to the offense of driving a motor vehicle upon a public road while under the influence of intoxicating liquor. The appellant was assessed 60 days' confinement in the county jail and a fine of $100. The trial judge suspended the imposition of the term of imprisonment.

One of the conditions of the appellant's probation was that he "1. (c)ommit no offense against the laws of this State or any other State or the United States."

The State's motion to revoke, filed on June 3, 1976, and amended on June 7, 1976, alleged in part that ". . . on or about the 16th day of March, 1976, he knowingly possessed a usable quantity of marihuana, to-wit: less than two (2) ounces . . .."

On June 16, 1976, a hearing was held on the State's amended motion. At the close of that hearing, the trial judge found that the appellant had violated condition 1 of his probation by knowingly possessing a usable quantity of marihuana on March 16, 1976.

The testimony reveals that on March 16, 1976, Wendel Bryant, an off-duty policeman, saw the appellant driving his automobile on a public street in Colorado City. The appellant and his companion were slumped down in their seats and the officer could barely see their heads. Shortly thereafter, Bryant encountered Sgt. Fuller, who was on patrol duty. Bryant told Fuller what he observed and that he thought the occupants of the automobile were smoking marihuana.

Fuller then saw the appellant's automobile travelling on a busy street. He likewise noticed that the appellant and his companion were slouched very low in their seats and could barely see them. Fuller testified that he stopped the appellant because he thought the appellant was endangering lives and property.

Fuller further testified that after he stopped the appellant he observed that the appellant's eyes were bloodshot and glassed over. He also smelled the odor of burning marihuana coming from inside the vehicle.

Fuller, after smelling the odor of burnt marihuana, saw what appeared to be fragments of marihuana, marihuana seeds on the floorboards and both seats, and a pink "roach" in the ash tray.

After Fuller took the appellant and his companion to the police station, he searched the appellant's automobile. The search revealed the contents of State's Exhibits 1, 1A, 2 and 3.

State's Exhibits 1 and 1A, a pipe and two roach clips, revealed traces of marihuana residue. David Legg, a chemist with the Texas Department of Public Safety, testified that the residue was not usable. Rather, Legg indicated that the residue was from marihuana which had already been used.

State's Exhibit 2 consisted of a baggie containing eight marihuana seeds and other debris. Legg testified that he could identify marihuana particles among the debris in State's Exhibit 2. He did not testify as to their weight.

Legg also testified that he attempted to germinate the eight seeds. Only one seed germinated. There was no testimony relating to the weight of either the eight seeds or the seed which germinated.

State's Exhibit 3 consisted of a baggie containing debris, paper, matchsticks and trash collected from beneath the driver's seat and the ash tray. Legg testified that his chemical test of the contents of State's Exhibit 3 revealed a trace of marihuana. Legg did not testify as to the weight of the marihuana contained in State's Exhibit 3.

Legg, however, did testify that the usable quantity of marihuana contained in State's Exhibits 1, 1A, 2 and 3 was "probably" less than one-tenth of a gram. However, Legg could not testify to the exact weight of the usable marihuana. Moreover, Legg apparently included the residue from State's Exhibits 1 and 1A, and the seeds from State's Exhibit 2 which did not germinate, in his estimate of the weight of the marihuana.

Since Legg had previously testified that State's Exhibits 1 and 1A did not contain usable marihuana and seven of the eight seeds contained in State's Exhibit 2 did not germinate, ² Legg's testimony that there was probably less than one-tenth of a gram of marihuana was speculative at best.

More importantly, Legg testified that a usable quantity of marihuana for smoking purposes was between two-tenths and five-tenths of a gram.

In Pelham v. State, 164 Tex.Cr.App. 226, 298 S.W.2d 171 (1957), we discussed Texas' former law which dealt with marihuana. ³ We there stated:

"We know that the use commonly made of marijuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute." Pelham v. State, supra at 173, 298 S.W.2d at 173.

Unless we are willing to expressly overrule Pelham and hold that a single, nonsterilized marihuana seed capable of germination is a usable quantity of marihuana, there is no evidence that the appellant possessed a usable quantity of marihuana. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Odom); Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974). We decline the opportunity to overrule Pelham.

The trial judge abused his discretion in revoking the appellant's probation. The judgment is reversed and the cause remanded.

DOUGLAS, Judge, dissenting.

The majority incorrectly holds that the evidence is insufficient to show that appellant possessed a usable quantity of marihuana.

Article 4476-15, Section 1.02(17), V.A.C.S., defines marihuana as follows:

" 'Marihuana' means the plant Cannabis sativa L., whether growing or not; the seeds...