Osbourn v. State

• Decision Date: 18 October 2001
• Docket Number: No. 03-01-00266-CR,03-01-00266-CR
• Parties: (Tex.App.-Austin 2001) Vicki Osbourn, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Page 809

59 S.W.3d 809 (Tex.App.-Austin 2001)

Vicki Osbourn, Appellant v. The State of Texas, Appellee

No. 03-01-00266-CR

Court of Appeals of Texas, Austin

October 18, 2001

FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY NO. 563-762, HONORABLE JAN BRELAND, JUDGE PRESIDING

David A. Sheppard, Austin, for appellant.

Ken Oden, County Atty., Austin, for appellee.

Before Justices Kidd, Puryear and Onion^*

John F. Onion, Jr., Justice

Appellant appeals her conviction for possession of marihuana, a usable amount of less than two ounces. Tex. Health & Safety Code Ann. § 481.121(a)(b)(1) (West Supp. 2001). Appellant entered a plea of "not guilty." In a bench trial, the trial court found her guilty and assessed her punishment at twenty days' confinement in the county jail.

Points of Error

Appellant advances two points of error. First, appellant contends that the trial court erred in admitting into evidence the testimony of the State's expert witness--the arresting police officer--concerning the nature of the substance. Appellant contends that she had obtained a pretrial discovery order under article 39.14(b) of the Texas Code of Criminal Procedure¹ requiring the State to name its expert witnesses; that the State failed to respond; and that, despite timely objection, the trial court erred in permitting Officer Nicole Saval, an expert witness, to testify. Appellant urges that this is a case of first impression under article 39.14(b). Second, appellant claims that without the expert testimony the evidence is legally insufficient to support the conviction.

Background

Austin Police Officers Christopher Gray and Nicole Saval were the State's only witnesses. Appellant offered no evidence.² Officer Gray testified that on the evening of December 23, 1999, he arrived on the scene of a traffic stop in the 8600 block of Burnet Road to act as a backup for Officer Saval. Saval told Gray that she suspected the driver of the stopped vehicle was "DWI." Officer Gray identified appellant as the only passenger in the vehicle. He, however, focused on the driver, and after field sobriety tests, arrested the driver for driving while intoxicated and possession of marihuana.

On direct examination, Officer Saval was immediately asked about her three years with the Austin Police Department and her training at the police academy. Saval related that at the academy "they" were shown what each drug looked like, and were allowed to smell marihuana before and after it was burnt. She could not recall the length of any class on drug recognition. When she was asked if she was a drug recognition expert, there were several general objections and inquiries as to whether the State was attempting to qualify her as an "expert." The trial court permitted the interrogation to continue, but the specific question was not re-asked. Saval testified that she was not certified as a drug recognition expert, but was familiar with what marihuana looked like. At this point, appellant interposed her objection that Saval could not testify as an expert under Rule 702 of the Texas Rules of Evidence because of the trial court's discovery order requiring the State to name its expert witnesses twenty days prior to trial which it had not done. The State responded that it was not offering Saval as an expert witness under Rule 702. It pointed out that the offense report had been given to appellant early on and that the report revealed what the officer had observed and smelled on the night in question.

After a lengthy colloquy, the trial court withheld its ruling until Saval had fully testified. Saval repeated her earlier testimony and added that she "had come across it [marihuana]" and made marihuana arrests during her three years as a peace officer. She was familiar with the appearance and smell of marihuana.

Officer Saval then testified that about 10:50 p.m. on December 23, 1999, she stopped a silver Buick Skylark automobile for high light beams while traveling towards oncoming traffic. Scott Conyers, the driver, exited the automobile. As Saval had Conyers get back into the vehicle, she smelled alcohol on his breath and the odor of burnt marihuana emanating from the vehicle.

After Officer Gray arrived on the scene, Saval approached the passenger whom she identified as appellant. When asked if she and Conyers had been smoking marihuana, appellant denied the same. In response to Officer Saval's remark that she smelled the odor of marihuana, appellant suggested "cigarettes." When told that cigarettes do not smell like marihuana, appellant admitted that "they" had been smoking marihuana. When asked if there was any marihuana in the vehicle, appellant stated that there was, and pointed to a place between the two front seats. Appellant claimed that the marihuana was hers. Officer Saval confiscated the substance which was in a see-through baggy. Based on her experience and training, Saval stated the substance was marihuana, a usable amount of less than two ounces.

At the conclusion of the testimony, the trial court stated:

I think it is expert testimony because it requires a specialized knowledge. Although, I don't know. If the Courts were called to decide on that today, they may say that a lay person can determine if something is marihuana or not.

This was followed by more argument and colloquy. The State pointed out that the offense report had been in appellant's hands before the notice request; that the report noted that Saval smelled and observed marihuana; that the report noted a named lab technician who had tested the substance and found it to be marihuana; and that appellant knew what Saval's testimony would be. Appellant argues, in effect, that it was the State's burden to comply with the notice requirement under article 39.14(b) and that an offense report did not meet that burden. The trial court overruled appellant's objection.

The Law Prior to Article 39.14(b)

Article 39.14(a) , our earliest discovery statute in criminal cases, does not specially provide for the disclosure of the State's witnesses to the defense. Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2001)³; Thorton v. State, 37 S.W.3d 490, 492 (Tex. App.--Texarkana 2000, pet. ref'd); 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 22.161 at 96 (2001) (hereinafter Dix). Nevertheless, it has been repeatedly held that upon a request by a defendant, the State must, in accordance with the trial court's discovery order, give notice of whom it intends to call as witnesses. See Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989); Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981); Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977); Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.--El Paso 2000 pet. ref'd); Marx v. State, 953 S.W.2d 321, 338 (Tex. App.--Austin 1997), aff'd on other grounds, 978 S.W.2d 577 (Tex. Crim. App. 1999); Dix, § 22.171 at 99. Until recently, no explicit authority existed authorizing a trial court to order discovery of a defendant's witnesses. See Thorton, 37 S.W.3d at 493. Thus, only the State was required to disclose witnesses upon request.

Article 39.14(b)

Appellant did not seek to rely on the case law discussed above, but sought to utilize a new discovery provision added to article 39.14. Article 39.14(b) (Discovery) provides:

(b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying hte time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

Tex. Code Crim. Proc. Ann. art. 39.14(b) (West Supp. 2001).

The statute expressly authorizes the trial court to order any party to disclose the names of its expert witnesses to the other party upon motion or request, not just the State. "Apparently no showing of good cause is required, and thus whether to issue an order is discretionary with the court." Dix, § 22.163 at 98. The manner of disclosure is left to the trial court so long as the disclosure is not later than twenty days before the trial begins. The matter of sanctions is not mentioned, including that of exclusion of the witness's testimony. The statute is limited and applies only to evidence under Rules 702, 703, and 705 of the Rules of Evidence.⁴

In Thorton v. State, 37 S.W.3d 490 (Tex. App.--Texarkana 2000, pet. ref'd), the court, noting the nagging question of a trial court's authority to order a criminal defendant to disclose its list of witnesses, discussed article 39.14(b). The court stated:

Nevertheless, the Legislature has acted recently with respect to the trial court's authority to order discovery of the defendant's witnesses. In 1999, the Legislature amended Article 39.14 to allow the trial court to grant either party discovery of the other party's expert witnesses. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2000). The bill analysis to Senate Bill 577 reveals that it was intended to establish a limited exception to the general rule that the State cannot obtain discovery of the witnesses the defendant intends to call at trial. Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 557, 76th Leg., R.S. (1999). Thus, the 1999 amendment to Article 39.14 reflects the Legislature's understanding that the trial court generally cannot order discovery of the defendant's witnesses and its intent to provide the State with discovery in certain situations.

Id. at 493.⁵ (footnote omitted). With this background, we return to the issue at hand.

Discus...