No. 05-02-02020-CR
Opinion Filed May 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
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.
Opinion By Justice 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.
STANDARD OF REVIEW
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. ANALYSIS
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 held that a matchbox half full of marijuana, admitted into evidence, was sufficient to support the conviction. See also Tolbert v. State, 711 S.W.2d 380, 382 (Tex. App.-Beaumont 1986, pet. ref'd) (matchbox approximately three-fourths full sufficient to constitute a usable quantity, even though no direct proof); Andrade v. State, 662 S.W.2d 446, 449-50 (Tex. App.-Corpus Christi 1983, pet. ref'd) (marijuana already in cigarette form sufficient to establish that it was a "usable quantity" of marijuana, even in the absence of any direct testimony). We interpret this to mean that there is no specific quantity that constitutes the legal standard for determining "usable quantity" and that if a jury is able to examine the actual marijuana found in a defendant's possession, it can determine whether or not there is a usable quantity of the drug. After viewing the evidence in the light most favorable to the judgment, we hold that a rational trier of fact could have found that appellant was in possession of a usable quantity of marijuana beyond a reasonable doubt. And after a neutral review of all the evidence, both for and against the finding, we hold that the jury was rationally justified in finding guilt beyond a reasonable doubt. We affirm the judgment of the trial court.