COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF R.R., 

A JUVENILE.

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No. 08-12-00284-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC#0900695)

O P I N I O N

 Appellant, R.R., a juvenile, was charged by petition with the delinquent conduct of 

possession of less than two ounces of marijuana in a drug-free zone. See TEX. HEALTH & SAFETY 

CODE ANN. §§ 481.121(a), (b)(1), 481.134 (West 2010). After a hearing, the trial court 

adjudicated Appellant delinquent. Following a disposition hearing, Appellant was placed on 

probation until his eighteenth birthday. On appeal, Appellant challenges the trial court’s finding 

that he engaged in delinquent conduct by possessing two ounces or less of marijuana. In a single 

issue, Appellant argues the evidence is legally insufficient to support his conviction. We affirm. 

BACKGROUND

At the adjudication hearing, Esperanza Garcia, a class guard monitor at San Elizario High 
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School in El Paso County, Texas, testified that she observed Appellant with other boys by the side 

of the school’s field house on May 24, 2012. Garcia saw Appellant smoking and passing what 

appeared to be a pen cap to the other boys. Garcia told Alfonso Sepulveda, a security officer at 

the school, what she had seen and asked him to stop the boys. Appellant was stopped, and when 

he denied smoking, Garcia asked to smell Appellant’s hands which he allowed her to do. Garcia 

testified that she smelled the odor of marijuana on Appellant’s hands.

Garcia and Sepulveda started to walk Appellant to the administrator’s office and Appellant 

became very nervous and started to shake and brush something off of his pant leg. Garcia 

observed a folded piece of white paper fall from Appellant’s pants. She watched Sepulveda pick 

up and open the piece of paper and saw that it contained a green weed substance which she 

recognized to be marijuana.1

Sepulveda testified that he smelled an odor of marijuana on Appellant’s hands and that 

Appellant’s eyes were a little glassy. Appellant started to stall, fidget, and pull on his pant legs

when they started to walk to the administrator’s office. At that point, Sepulveda saw a white 

folded-up paper fall from Appellant’s pant area. Sepulveda picked up and opened the paper

which contained a green leafy substance he believed to be marijuana.2

El Paso Sheriff’s Office Deputy Carlos Muñoz testified that his drug training consisted of

the identification of different drugs including marijuana, as well as sight recognition of the general 

amounts of marijuana. As a deputy, Muñoz had identified marijuana ten to fifteen times. During 

his prior position as a detention officer in the jail annex, Muñoz identified marijuana two to three 

 

1 Garcia testified that she had smelled and seen marijuana before.

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Sepulveda testified he had seen marijuana hundreds of times while working with kids since 1980. He was familiar 

with the smell of marijuana and as a former tobacco user, he knew the difference between the smell of marijuana and 

tobacco.
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times. On May 24, 2012, Deputy Muñoz was dispatched to San Elizario High School in reference 

to a student’s possession of narcotics.

At the school, Deputy Muñoz spoke to the hall monitor and the security guard among 

others and was advised that Appellant possessed marijuana. Deputy Muñoz viewed the green 

leafy substance contained in the folded piece of white paper and recognized it to be marijuana. 

Deputy Muñoz testified the marijuana appeared to be less than two ounces of marijuana and that it 

was a usable amount. The substance field tested positive for marijuana and weighed less than two 

ounces. Deputy Muñoz subsequently arrested Appellant.

DISCUSSION

 Appellant contends the evidence is legally insufficient to sustain the trial court’s finding that 

he engaged in delinquent conduct. Specifically, he argues the State’s evidence was not legally 

sufficient to sustain the trial court’s delinquent conduct finding because the State failed to prove 

that the substance was marijuana and that the marijuana weighed two ounces or less. We 

disagree.

Standard of Review 

Although juvenile appeals are categorized as civil cases, we use the same standards 

applicable in criminal appeals when reviewing challenges to the sufficiency of the evidence 

supporting a finding that a juvenile engaged in delinquent conduct. See In re J.R.C.S., 393 

S.W.3d 903, 909 (Tex.App. – El Paso 2012, no pet.); In re H.G.G.D., 310 S.W.3d 43, 45 (Tex. 

App. – El Paso 2010, no pet.); In re M.D.T., 153 S.W.3d 285, 287 (Tex.App. – El Paso 2004, no 

pet.). In a legal sufficiency analysis, we view the evidence in the light most favorable to the 

verdict to determine whether any rational trier of fact could have found the essential elements of 
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the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 

2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). 

On review, we do not resolve any conflicts of fact or re-evaluate the weight and credibility of the 

evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); In re H.G.G.D., 310 S.W.3d 

at 46. Instead, our duty is to determine whether the explicit and implicit findings of fact made by 

the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable 

to the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). In doing so, 

any evidentiary inconsistencies are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 

839, 843 (Tex.Crim.App. 1991).

Possession of Marijuana

To prove that Appellant engaged in delinquent conduct, the State had to establish that 

Appellant knowingly or intentionally possessed a usable quantity of marijuana in the amount of 

two ounces or less. TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010); TEX.

FAM. CODE ANN. § 51.03(a)(1) (West 2008). Accordingly, the State bore the burden to prove 

beyond a reasonable doubt that Appellant (1) exercised care, control, and management over the 

contraband and (2) that he knew he possessed contraband. Brown v. State, 911 S.W.2d 744, 747 

(Tex.Crim.App. 1995).

First, Appellant contends the State failed to prove that the substance was marijuana. He 

complains the evidence is legally insufficient because the State: (1) only offered the testimony of 

Deputy Muñoz, a rookie officer; (2) failed to offer the testimony of an expert such as a lab analyst; 

(3) did not offer the alleged marijuana or photos of the marijuana into evidence; and (4) failed to 

introduce the chain of custody for the marijuana into evidence. However, we find Appellant’s 
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arguments unpersuasive. In Osbourn v. State, 92 S.W.3d 531 (Tex.Crim.App. 2002), the Court of 

Criminal Appeals held that because of marijuana’s distinct appearance and odor, expert testimony

and chemical testing are unnecessary to prove that a substance is marijuana. Id. at 537-38. 

Instead, the substance can be identified through the lay opinion of a police officer or other 

witnesses familiar with the odor of marijuana. Id. Thus, the State was not required to call an 

expert witness, offer the alleged substance or photos of it at the adjudication hearing, and present 

the chain of custody for the marijuana into evidence to prove that the substance was in fact 

marijuana. 

Here, Deputy Muñoz testified that he was trained to identify drugs including marijuana. 

Although Deputy Muñoz testified that he was still training with his field training officer on May 

24, 2012, he explained that as a deputy he came across marijuana quite a few times. In particular, 

he stated that he had identified substances to be marijuana on ten to fifteen occasions. He had also 

previously identified marijuana on two to three occasions while working as a detention officer at 

the jail annex. When Deputy Muñoz viewed the green leafy substance contained in the folded

piece of white paper, he recognized it to be marijuana. When he smelled the substance it smelled 

like marijuana. Deputy Muñoz testified that he conducted a field test on the substance which 

tested positive for marijuana.

Moreover, lay witnesses Garcia and Sepulveda testified that they were personally familiar 

with marijuana. Garcia and Sepulveda both smelled an odor of marijuana on Appellant’s hands. 

Garcia and Sepulveda recognized the green substance contained in the white paper that fell from 

Appellant’s pant area as marijuana. When viewed in the light most favorable to the trial court’s 

finding, we conclude this evidence was legally sufficient for a rational trier of fact to have 
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determined that the alleged substance was marijuana.

Next, Appellant argues the State failed to prove that the weight of the marijuana was two 

ounces or less because during cross-examination, Deputy Muñoz could not recall the approximate 

amount of the marijuana when he weighed it on the digital scale. He also maintains that it would 

have been helpful to have the marijuana or photos of the marijuana introduced into evidence in 

order to verify that the deputy’s testimony was accurate. The State responds that the deputy’s 

testimony satisfies the elemental requirement that the marijuana be less than two ounces and that it 

is a usable amount. We agree with the State.

While Appellant correctly notes that Deputy Muñoz could not recall the approximate 

weight of the marijuana when he weighed it on a digital scale, he believed that Appellant was 

charged with a Class B misdemeanor, possession of marijuana, under two ounces. Furthermore, 

on direct-examination, Deputy Muñoz testified that he was trained to recognize by sight the 

general amount of marijuana. By sight, the amount of marijuana appeared to be less than two 

ounces to Deputy Muñoz. According to Deputy Muñoz, this was a usable amount of marijuana. 

Deputy Muñoz also testified that he weighed the marijuana and that it weighed less than two 

ounces. When viewed in the light most favorable to the trial court’s finding, Deputy Muñoz’s

testimony was sufficient for a rational trier of fact to determine that the amount of marijuana 

involved was a usable amount within and weighed two ounces or less. See Martinez v. State, No. 

04-09-00029-CR, 2009 WL 3789880, at *3, 4 (Tex.App. – San Antonio Nov. 11, 2009, no pet.) 

(holding officers’ testimony that substance is a usable quantity of marijuana is sufficient to support 

conviction where State did not offer any physical evidence of the marijuana); TEX. HEALTH &

SAFETY CODE ANN. § 481.121(b) (West 2010).
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Having considered Appellant’s arguments and reviewed the evidence in the light most 

favorable to the trial court’s finding, we conclude the evidence was legally sufficient to show that 

Appellant engaged in delinquent conduct by knowingly or intentionally possessing two ounces or 

less of marijuana. Issue One is overruled.

CONCLUSION

We affirm the judgment of the trial court.

GUADALUPE RIVERA, Justice

December 27, 2013

Before McClure, C.J., Rivera, and Rodriguez, JJ.