NO. 12-17-00169-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TERRELL EDWARD ROBINSON, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW NO. 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Terrell Edward Robinson appeals his conviction for possession of a usable quantity of 

marijuana in an amount of less than two ounces for which he was fined $300. Appellant raises 

six issues on appeal. We affirm.

BACKGROUND

Officer Robert Main with the Tyler Police Department was on patrol observing a known 

drug house. When he witnessed a vehicle leaving the location, Main followed the vehicle and 

observed several traffic violations. The driver of the vehicle failed to signal a turn for the 

required distance on two occasions and made an improper wide right turn. Main initiated a 

traffic stop.

Appellant’s girlfriend, Brianna Moss, was driving the vehicle, Appellant was riding in the 

front passenger seat, and Appellant’s and Moss’s child was in the back seat. Moss was driving 

without a license. Main told Moss that he stopped her for failing to properly signal a turn for the 

required distance. When asked where they had been, Appellant and Moss stated that they had 

been at the La Quinta Inn taking pictures. When Main asked Appellant if he had identification, 

Appellant initially stated that he did not. However, when Main subsequently indicated that he 

needed Appellant to recite his identifying information, Appellant instead provided Main with a 
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Texas identification card. Main informed Moss that she would receive a warning rather than a 

citation for the traffic offense. He then returned to his vehicle to run a warrant search on 

Appellant and Moss.

Although Main could not smell the odor of marijuana in the vehicle, he was suspicious. 

He believed that both Appellant and his girlfriend were acting nervous. He further believed that 

they were not telling the truth about where they had been because Main saw them leave a known 

drug house. 

After determining that neither Appellant nor Moss had any outstanding warrants, Main 

again made contact with Moss. The two talked beside Main’s patrol vehicle. Main told Moss 

that he would write her a warning, but he wanted to know if there was “weed in the car.” Moss 

replied that there was a gram of marijuana in Appellant’s possession.

Main then returned to Moss’s vehicle and made contact with Appellant, who he asked to 

step out of the vehicle. Main handcuffed Appellant, and when Appellant questioned if he was 

going to jail, Main told Appellant that he was being detained. Main then asked Appellant if he 

had marijuana in his possession. Appellant initially denied having any marijuana, but eventually 

admitted having a gram of marijuana. Appellant retrieved the marijuana from his person, and 

Main took possession of it.

Appellant was charged by information with possession of a usable amount of marijuana 

in an amount less than two ounces.1 Appellant pleaded “not guilty.” Following a trial, the jury 

found Appellant “guilty” and assessed a fine of $300. The trial court sentenced Appellant in 

accordance with the jury’s verdict. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Appellant contends that the evidence is insufficient to support his 

conviction. Specifically, Appellant argues that the State failed to prove that the marijuana was a 

usable quantity.

Standard of Review

In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a 

reviewing court should apply in determining whether the evidence is sufficient to support each 

 

1 TEX. HEALTH & SAFETY CODE ANN. § 481.121(a),(b)(1) (West 2017).
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element of a criminal offense that the State is required to prove beyond a reasonable doubt. 

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the 

constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to 

sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 

2786–87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency challenge is 

whether any rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the 

light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in 

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 

S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and 

to draw reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at 

319, 99 S. Ct. at 2789.

Under this standard, we may not sit as a thirteenth juror and substitute our judgment for 

that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry 

v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. 

Instead, we defer to the fact finder’s resolution of conflicting evidence unless the resolution is 

not rational. See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting 

inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and 

therefore defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). Direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence 

alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). The duty of a reviewing court is to ensure that the evidence presented actually supports a 

conclusion that the defendant committed the crime charged. See Williams v. State, 235 S.W.3d 

742, 750 (Tex. Crim. App. 2007).

The sufficiency of the evidence is measured against the elements of the offense as 

defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is 

authorized by the indictment, does not unnecessarily increase the State’s burden of proof or 
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unnecessarily restrict the State’s theories of liability, and adequately describes the particular 

offense for which the defendant was tried.” Id.

Analysis

In this case, the State was required to prove that Appellant possessed a usable quantity of 

marijuana in an amount less than two ounces. TEX. HEALTH & SAFETY CODE ANN. 

§ 481.121(a),(b)(1). Appellant contends that the evidence is insufficient to establish that the 

marijuana was a “usable quantity.” While Main, the state’s only witness, was not specifically 

asked whether the marijuana possessed by Appellant was a usable amount, the jury had ample 

circumstantial evidence from which it could determine that the marijuana was a usable amount.

First, Main stated that he recognized the marijuana by its odor and appearance and, based 

on his prior dealings with marijuana and Moss’s statement that Appellant possessed a gram of 

marijuana, it appeared to be much less than two ounces. Second, Main testified that Exhibit 3 

showed the small bag of marijuana possessed by Appellant. While Exhibit 3 is not part of the 

appellate record, the jury was able to see how much marijuana the bag contained and, 

accordingly, the amount of marijuana that Appellant possessed. Third, Main testified that the 

marijuana consisted of three clumps. Fourth, Moss told Main that she and Appellant paid $15 

for the marijuana. 

The video from the traffic stop also supports the jury’s verdict that Appellant possessed a 

usable amount of marijuana. The video reflects that, during his separate conversation with Moss, 

Main told Moss that any usable amount of marijuana is a class B misdemeanor in Texas. 

Similarly, on two occasions while speaking with Appellant, Main said that any usable amount of 

marijuana is illegal in Texas and that it is a class B misdemeanor, one step above a ticket. 

Further, both Appellant and Moss stated that they paid $15 for the marijuana. They both

admitted to smoking marijuana in the past.

Viewing the evidence in the light most favorable to the prosecution, we conclude that a 

rational factfinder could have found, beyond a reasonable doubt, that Appellant possessed a 

usable amount of marijuana in an amount less than two ounces. See TEX. HEALTH & SAFETY 

CODE ANN. § 481.121(a),(b)(1); see also Spector v. State, 746 S.W.2d 946, 949-50 (Tex. App.—

Austin 1988, pet. ref’d) (finding evidence sufficient when marijuana weighed .19 grams along 

with defendant’s attempt to destroy cigarette). Accordingly, we hold that the evidence is legally 
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sufficient to support Appellant’s conviction. See Brooks, 323 S.W.3d at 899.

2 We overrule 

Appellant’s first issue.

UNREASONABLE SEARCH AND SEIZURE

In his second issue, Appellant contends that the detention was not temporary. In his third 

issue, Appellant argues that his and Moss’s statements were not voluntary. In his fourth issue,

Appellant urges that he was never read his Miranda warnings. In his fifth issue, Appellant 

contends that Main conducted a custodial interrogation and not a criminal investigation. 

Accordingly, Appellant argues that the trial court erred in denying his motion to suppress 

evidence. 

Preservation of Error

To preserve a complaint for our review, a party must present to the trial court a timely 

request, objection, or motion that states the specific grounds for the desired ruling if they are not 

apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); 

Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g). When a pretrial 

motion to suppress is denied, the defendant need not object to the admission of the evidence at 

trial. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.1986). But, if a trial court has 

not yet ruled on a motion to suppress when the evidence is offered at trial, the defendant must 

object to the evidence in order to preserve error. Sanders v. State, 387 S.W.3d 680, 686 (Tex. 

App.—Texarkana 2012, pet. struck). 

Additionally, even when the trial court denies the motion to suppress before the evidence 

is introduced, when a defendant affirmatively states during trial that he has “no objection” to the 

admission of the complained of evidence, an appellate court must examine the context of the 

record to determine if error has been preserved. Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.

Crim. App. 2013). It has long been held that such an affirmative statement constitutes a 

“waiver” of the right to raise on appeal the error that was previously preserved. See id. at 881–

 

2 We recognize that an appellate court may take judicial notice that a certain amount of marijuana 

constitutes a usable amount. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex. Crim. App. 1976). However, based 

on the state of this record, a reasonable jury could have been convinced by the circumstantial evidence that the 

marijuana possessed by Appellant constituted a usable amount. Accordingly, we need not take judicial notice that a 

gram is a usable amount.
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82. However, in Thomas, the court of criminal appeals acknowledged some flexibility in our 

construing this rule. As the court stated,

[A]s with error preservation in general, the rule that a later statement of “no objection” will forfeit 

earlier-preserved error is context-dependent. By that we mean that an appellate court should not 

focus exclusively on the statement itself, in isolation, but should consider it in the context of the 

entirety of the record. If the record as a whole plainly demonstrates that the defendant did not 

intend, nor did the trial court construe, his “no objection” statement to constitute an abandonment 

of a claim of error that he had earlier preserved for appeal, then the appellate court should not 

regard the claim as “waived,” but should resolve it on the merits. On the other hand, if from the 

record as a whole the appellate court simply cannot tell whether an abandonment was intended or 

understood, then, consistent with prior case law, it should regard the “no objection” statement to 

be a waiver of the earlier-preserved error. Under the latter circumstances, the affirmative “no 

objection” statement will, by itself, serve as an unequivocal indication that a waiver was both 

intended and understood.

Id. at 885–86.

Application

Here, Appellant filed a pretrial motion to suppress but failed to obtain a ruling on the 

motion. Instead, on the morning of trial, when asked by the trial court about the pending motion 

to suppress, Appellant’s counsel stated, “We want to carry that to trial, Your Honor.” Moreover, 

from Appellant’s conduct at trial, we cannot tell whether Appellant intended to abandon his 

objections previously made in his motion to suppress. Just before jury selection, Appellant’s 

counsel informed the trial court and the State that he probably would proffer into evidence the 

recording of the traffic stop.

During the State’s case in chief, the State proffered the following four exhibits into 

evidence: (1) a package containing a chain of custody form and a bag of marijuana; (2) the chain 

of custody form for the marijuana relevant to the charge against Appellant; (3) the bag of 

marijuana relevant to the charge against Appellant; and (4) the recording of the traffic stop 

relevant to the charge against Appellant. When the State proffered Exhibits 1 and 2, Appellant 

objected that there was not a complete chain of custody. The trial court overruled Appellant’s 

objections, admitted Exhibit 2, and conditionally admitted Exhibit 1. The State then proffered 

Exhibit 3 into evidence. After reviewing Exhibit 3, Appellant’s counsel stated, “Thank you, 

Your Honor. No objection.” The trial court admitted Exhibit 3 into evidence. Finally, when the 

State proffered Exhibit 4 into evidence, Appellant’s counsel stated, “I have no objection.” The 

trial court then admitted Exhibit 4.
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The State published the recording of the traffic stop to the jury. When the State 

forwarded through a portion of the recording, Appellant requested that the entire recording be 

published to the jury. The trial court instructed Appellant that the rest of the recording could be 

published during Appellant’s portion of the presentment of evidence. Later, during Appellant’s 

cross-examination of Main, Appellant published the entire recording to the jury.

At no time during the State’s case in chief did Appellant give any indication that he 

wished to preserve the objections stated in his previously filed motion to suppress. Nevertheless, 

after the State rested, Appellant asked the trial court to grant his motion to suppress. The trial 

court denied Appellant’s motion.

Under these facts, we cannot conclude that Appellant preserved the objections made in 

his pretrial motion to suppress. See Sanders, 387 S.W.3d at 686; Thomas, 408 S.W.3d at 885-

86. Because we conclude that Appellant waived the objections contained in his motion to

suppress, we overrule Appellant’s second, third, fourth, and fifth issues.

CHAIN OF CUSTODY

In his sixth issue, Appellant argues that the trial court erred in admitting evidence that 

was not supported by a proper chain of custody. 

Standard of Review and Applicable Law

We review a trial court’s ruling on the admissibility of evidence for an abuse of 

discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). 

“That is to say, as long as the trial court’s ruling was at least within the zone of reasonable 

disagreement, the appellate court will not intercede.” Id.

“Without evidence of tampering, most questions concerning care and custody of a 

substance go to the weight attached, not the admissibility, of the evidence.” Lagrone v. State, 

942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Once the State proves the beginning and end of 

the chain of custody of evidence, the trial court does not abuse its discretion in admitting the 

proffered evidence barring any showing of tampering or alteration. Pinales v. State, Cause No. 

05-01-01699-CR, 2002 WL 31116234, at *2 (Tex. App.—Dallas Sept. 25, 2002, no pet.) (op., 

not designated for publication). The chain of custody is conclusively proven if an officer is able 

to identify that he or she seized the item of physical evidence, put an identification mark on it, 

placed it in the property room, and then retrieved the item being offered on the day of 
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trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). Gaps within the chain of 

custody affect only the weight and not the admissibility of the evidence. Norris v. State, 507 

S.W.2d 796, 797 (Tex. Crim. App. 1974).

Application

Here, Main stated that he took possession of the marijuana from Appellant. Main placed 

the package of marijuana in his vehicle. Later, Main tagged the package and logged it into the 

property department at the police station as evidence. Main subsequently retrieved the package 

containing the marijuana possessed by Appellant and brought it with him to trial. Main testified 

that the marijuana did not appear to be altered in any way.

Appellant complains that Main had possession of the bag of marijuana for two days 

before turning it into the evidence department. However, Appellant does not allege any altering

of or tampering with the bag of marijuana, nor did he raise any such allegations at trial. See 

Stoker, 788 S.W.2d at 10; Pinales, 2002 WL 31116234 at *2. Absent such evidence, any 

questions regarding the care and custody of the bag of marijuana go to the weight rather than the 

admissibility of the evidence. See Lagrone, 942 S.W.2d at 617. Accordingly, the trial court did 

not abuse its discretion in admitting the complained-of evidence. See Norris, 507 S.W.2d at 797. 

We overrule Appellant’s sixth issue.

DISPOSITION

Having overruled Appellant’s first, second, third, fourth, fifth, and sixth issues, we affirm

the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered March 21, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 21, 2018

NO. 12-17-00169-CR

TERRELL EDWARD ROBINSON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the County Court at Law No. 2 

of Smith County, Texas (Tr.Ct.No. 002-82404-16)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.