Roberts v. State

• Decision Date: 23 December 1999
• Parties: (Tex.App.-Austin 1999) Floyd Calvin Roberts, Appellant v. The State of Texas, Appellee NO. 03-98-00588-CR
• Court: Texas Court of Appeals

Page 460

9 S.W.3d 460 (Tex.App.-Austin 1999)

Floyd Calvin Roberts, Appellant v. The State of Texas, Appellee

NO. 03-98-00588-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

December 23, 1999

Rehearing Overruled February 10, 2000

From the District Court of Williamson County, 277th Judicial District No. 98-403-K277, Honorable John R. Carter, Judge Presiding

Affirmed.

Before Justices Jones, Kidd and Patterson

OPINION

J. Woodfin Jones, Justice

A jury convicted Floyd Calvin Roberts of one count of delivering marihuana to a minor. See Tex. Health & Safety Code Ann. § 481.122 (West Supp. 1999). After hearing testimony on punishment and appellant's plea of true to a prior felony conviction, the jury assessed sentence at life in prison. Roberts contends that the evidence was factually and legally insufficient to support the conviction and that the court erred by overruling his objection to the State's jury argument. We will affirm the judgment.

BACKGROUND

Roberts befriended eighth-graders Jessica Easley, Kristi Jordan, and Stephanie Ellison while working as a school bus driver. With at least one of their mother's permission, he took the girls in his truck to the mall, their friends' homes, and other places. Easley testified that Roberts also gave her and her friends marihuana and alcohol. She testified that he bought the marihuana at meetings set up on the phone and bought drug paraphernalia at a store in Austin. He usually kept the marihuana in his room, but sometimes put it in his truck. In his truck, he put it in a hole near the stereo. She said she and her friends dropped marihuana seeds in the truck when cleaning the marihuana. (Easley also testified that Roberts sexually assaulted her; because the jury acquitted him of the various sexual assault charges, we will not detail that evidence.) Easley's mother testified that she several times suspected that her daughter was high after spending time with Roberts; she admitted that she did not know for sure that Roberts had provided the marihuana to her daughter.

Jordan and Ellison also testified that Roberts gave them marihuana while they were with Easley. Both had smoked marihuana before they knew Roberts; Jordan said marihuana has a distinct odor and particular effects on the user. Jordan said Roberts gave them marihuana many times; they said he kept it in his glove compartment, his dresser drawer, and a boot. The girls denied they got this marihuana from Jordan's boyfriend. The girls agreed that Roberts never smoked marihuana with them because he feared a random drug test showing marihuana use would cost him his bus-driving job. Ellison, after initially denying she took marihuana with her on spring break to Kansas, admitted her aunt caught her with marihuana while there; she testified, however, that her mother did not know about her marihuana use before the State subpoenaed Ellison for this trial.

When Easley told her school counselor shortly after spring break (which ended Sunday, March 22, 1998) about her activities with Roberts, the counselor informed the city police. On April 9, 1998 in a search of Roberts's home, the police found .07 grams of marihuana loose in Roberts's dresser drawer. They also found a couple of marihuana seeds and a burnt piece of paper in the floorboard of his truck. The crime lab technician stated that tests showed the substance in the drawer was marihuana; though he did not test the seeds, he opined that they were marihuana seeds.

The jury acquitted Roberts of indecency with a child, sexual assault, and one count of delivery of marihuana to a minor. The jury convicted him of the remaining count of delivery of marihuana to a minor. After hearing evidence regarding Roberts's past, the jury assessed sentence at life in prison.

DISCUSSION

By two points of error, Roberts contends that the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence under point of error one, we will view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When reviewing the factual sufficiency of the evidence under point of error two, we will view the evidence without a presumption; we can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). The jury is the sole judge of the credibility of the witnesses and of the weight to give their testimony. Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.). The State may prove the identity of a controlled substance based on an admission by the accused. See In re L.G., 728 S.W.2d 939, 942 (Tex. App.--Austin 1987, writ ref'd n.r.e.); see also Bright v. State, 556 S.W.2d 317, 322 (Tex. Crim. App. 1977) (witness's testimony that appellant told him substance was heroin is admissible and probative of substance's identity).

Roberts focuses his sufficiency complaints on whether the State proved that he delivered marihuana to Easley. Though the State introduced marihuana found in Roberts's house and car, it did not offer any marihuana given to Easley. (The testimony is that the girls consumed the marihuana he provided.) Roberts contends the girls' testimony is insufficient to show he gave Easley marihuana. Roberts contends that no evidence shows he ever represented he was giving Easley marihuana. He also argues that the girls were not qualified to identify marihuana and did not ever describe the substance he allegedly provided. He contends that the marihuana recovered in April is not probative of whether he gave Easley marihuana on March 1; he contends that many intervening events could account for the presence of marihuana in his house and car.

Contrary to Roberts's assertion, we find passages of Jordan's testimony reveal Roberts saying that the substance he gave Easley was marihuana:

Q. Did Calvin [Roberts] ever discourage or try to get you or Jessica, the times that y'all were together, not to smoke; or did he ever encourage y'all to smoke?

A. He really encouraged it.

Q. Can you explain that?

A. Well, if we were just sitting there watching TV, he would ask us if we wanted to smoke some marijuana. So, you know, he would say go get it here or sometimes he would go get it.

* * *

Q. Let's talk a little bit about how you know that what he gave you was marijuana. Does marijuana have a distinct odor to you?

A. Yes, ma'am, very distinct.

Q. And could you look at it and know it to be marijuana?

A. Yes, ma'am, it's--it's, you know, pretty obvious.

Q. Did Calvin Roberts indicate to you it was marijuana?

A. Yes, ma'am.

On redirect examination, the following exchange occurred:

Q. [Roberts] just--I would ask him--or he would just tell us that he bought it, you know, "I bought some marijuana yesterday" or something. He never told me from who, and I was never with him.

A. The occasions that you described about smoking marijuana with Calvin, there have been multiple occasions. Is that correct?

* * *

A. Yes ma'am.

Q. And you indicated earlier that on some of those occasions Calvin would direct y'all to go get it from his--places in his room. Is that correct?

A. Yes ma'am.

These passages are similar to the admissions by defendants held to be sufficient to prove the identity of a controlled substance. See Bright, 556 S.W.2d at 322; L.G., 728 S.W.2d at 942.

Other testimony from the girls supports the conclusion that Roberts provided marihuana to Easley. All three girls claimed familiarity with marihuana and asserted repeated instances in which Roberts gave Easley marihuana. Easley and Jordan said they had smoked marihuana before meeting Roberts. Ellison and Jordan testified that they recognize marihuana by sight and smell. The girls talked about characteristics of marihuana like stems and seeds that are removed before smoking. All three girls testified that Roberts provided the marihuana to them many times; Ellison and Easley said they accompanied him when he bought it from someone he arranged to meet at a service station. All three girls testified they smoked Roberts's marihuana together. The girls described smoking marihuana in a pipe; Jordan and Easley described the screens in the pipes used to prevent accidental ingestion of the marihuana, and Jordan recognized that the screen introduced into evidence had not been used. Easley said smoking it made her high. Jordan said smoking it made her tired, hungry, and red-eyed.

Roberts argues that the girls' testimony is no evidence of the nature of the substance because they were not qualified to identify it. This is not a dispute over admissibility because Roberts did not object to the admission of the evidence. Rather, Roberts bases this argument on the court of criminal appeals' disregard of testimony by nonchemists purporting to identify a substance as heroin; the court concluded that, because many substances resemble heroin, testimony from narcotics officers and laymen based on the appearance of a substance admitted without objection nevertheless was not probative evidence that the substance actually was heroin. See Bright, 556 S.W.2d at 321-22; see also Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App.1977) (test showing substance was opiate derivative did not prove substance was heroin because other opiate derivatives resemble heroin).¹ Roberts argues for a similar ruling here because other green, leafy, seedy substances resemble marihuana. See Holliman v. State, 692 S.W.2d 120, 122 (Tex. App.--Waco 1985, pet. ref'd).

We conclude that, even without Roberts's admissions, the girls' testimony was some evidence that the substance Roberts gave Easley was marihuana. Lay witnesses can give opinion testimony that is rationally based on their...