in the Matter of Z.R., a Child

Opinion issued August 29, 2013.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-00715-CV

———————————

IN THE MATTER OF Z.R., A CHILD

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 10-CJV-015951

MEMORANDUM OPINION

Z.R., a juvenile, was charged with possession of two ounces or less of

marijuana in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.121, 481.134 (West 2010 & Supp. 2012). After the jury adjudicated him

delinquent, the trial court sentenced Z.R. to twelve months’ probation. On appeal,

Z.R. contends that: (1) the trial court erred in admitting testimony distinguishing

marijuana from cush and describing the meaning of the test results of a

presumptive test that was performed on State’s Exhibit 2, which was the substance

confiscated from Z.R.; (2) the trial court erred in allowing the State to perform an

in-court presumptive test on State’s Exhibit 2; and (3) the evidence was legally

insufficient to support the jury’s verdict. We affirm.

Background

On August 25, 2010, Raymond Aguilar, a security officer at Foster High

School in Richmond received an anonymous Crime Stopper tip that Z.R. may have

marijuana in his possession. Aguilar went to Z.R.’s classroom, where he asked

Z.R. to step outside and bring his belongings with him to Aguilar’s office. When

they arrived at Aguilar’s office, Aguilar asked the assistant principal, Mr. Spates,

to join them. Once Mr. Spates arrived, Aguilar told Z.R. that he had learned that

Z.R. may have something on him that he should not have at school. Z.R.

responded by unzipping his backpack, removing a pencil bag, and taking out a

plastic bag containing a leafy substance. He also admitted the substance in the bag

was marijuana.

Aguilar called Richmond Police Officer Sherman Phillips, the resource

officer assigned to Foster High School, and gave Phillips the plastic bag. Based on

its appearance and smell, Phillips believed the substance in the plastic bag was

2

marijuana. He took it to his office and tested a small portion of it with a marijuana

field test kit, or presumptive test. Phillips testified that when he performed the

presumptive test, the substance changed colors, indicating “[t]hat the substance

was marijuana.” Phillips then arrested Z.R. for possession of marijuana.

At a pre-trial hearing, the trial court granted Z.R.’s motion to suppress his

oral admission that the confiscated substance was marijuana, but ruled that Phillips

and Officer Joshua Dale of the Fort Bend Narcotics Task Force could offer their

opinions as lay witnesses, under Texas Rule of Evidence 701, that the substance

was marijuana. Z.R. also sought to exclude evidence concerning presumptive

tests, arguing: “[N]o Texas court has ever allowed presumptive tests before a jury

for any purpose.” The State responded that it was not offering evidence of the

presumptive test results to prove that the substance was marijuana, but for the

limited purpose of rebutting Z.R.’s defensive theory that the substance was a then-

legal synthetic substance commonly referred to as cush and not marijuana.

According to the State, there is no presumptive test for cush, and the fact that the

test changed colors rebutted the defense theory that the substance was cush. The

trial court ruled that Dale would be permitted testify about “the presumptive test

for . . . cush . . . but don’t even go close to this marijuana.” Once the trial began,

Z.R. was granted a running objection to the officers’ opinion testimony that the

substance was marijuana and evidence about the results of the presumptive test.

3

At trial, Dale testified first. He testified that he had spent four of his sixteen

years as an officer working on a narcotics task force, which investigates the sale,

distribution, cultivation, and manufacture of illegal substances. Part of his job is to

teach others how to recognize drugs. Dale was specially trained to identify

marijuana and had substantial experience doing so in the field. He testified that he

can identify marijuana by sight and smell and he described its physical appearance:

budding organic green leafy material with stems and seeds, and a unique smell. He

also explained that he had some field experience with cush, and that cush does not

look or smell like marijuana. Rather, cush is granulated and loose and has a totally

different odor.

Dale also testified that there is a presumptive test for marijuana—the liquid

turns red if marijuana is placed in it—but that he is not aware of one for cush.

During cross examination, Dale conceded that there are some problems with the

reliability of a presumptive test. Specifically, Dale testified that results of a

presumptive test for marijuana are not definitive, and that he did not know the

presumptive test’s rate of error. He further testified that there is a definitive lab

test for marijuana, and that he did not know if State’s Exhibit 2 had been tested in a

lab, but that it was common practice not to send marijuana to the crime lab for

testing.

4

Dale then physically examined State’s Exhibit 2 and rendered the opinion

based on its odor and appearance that it was marijuana. His testified that his

opinion was based on his observation of the physical characteristics of State’s

Exhibit 2. In particular, Dale testified that he identified State’s Exhibit 2 as

marijuana because it is green and leafy with stems, it smells like marijuana, and it

neither looks nor smells like cush. Dale distinguished the appearance of marijuana

and cush, explaining that cush is “a very light, light brownish to green color.”

Rosenberg Police Officer Jeremy Eder testified next. He had eleven years’

experience as a police officer, and two of those were in the narcotics division. He

had encountered cush on a few occasions but had no training on it. He testified

that people try to pass off cush as marijuana, because they can resemble each other

in appearance, but not odor. With respect to presumptive tests, he explained that

there is a presumptive test for marijuana, there is not one for cush, and that, if one

were to put cush in a presumptive test kit intended to test for marijuana, it would

not come back positive (i.e., red or blue). Rather, the liquid would appear brown.

Like Dale, Eder acknowledged that he did not know the rate of error for the

presumptive test and that a lab test is more accurate than a presumptive test.

The final officer to testify, Phillips, had fourteen years’ experience as a

police officer and was assigned to Foster High School for the 2010–2011 school

year. He testified that he has encountered marijuana many times during his

5

training and experience as an officer, and can identify marijuana by sight—“[by

its] stems, seeds, [and by] how it’s bunched up”—and by its distinct odor. Phillips

also testified that, upon receiving State’s Exhibit 2 from Aguilar, Phillips looked at

it and formed the opinion based on its appearance and smell that it was marijuana.

Regarding presumptive tests, Phillips testified that there was one for

marijuana, but that he was unaware of a presumptive test for cush. He further

testified about the procedure for performing a presumptive test, the results of the

test performed on State’s Exhibit 2, and the significance of those results.

Specifically, he testified that, after receiving it from Aguilar and identifying the

substance as marijuana based on its odor and appearance, he performed a

presumptive test on State’s Exhibit 2, and that the test turned red or blue,

indicating the substance was marijuana. On cross-examination, Phillips, like Dale,

admitted that he was not a chemist, that he did not know the rate of error of the

presumptive test, that the presumptive test was not always accurate, and that no

laboratory test was performed on State’s Exhibit 2 to confirm that it was

marijuana. Phillips also admitted that the jury was unable to view the presumptive

test that he performed on State’s Exhibit 2 in the field because he threw it away. 1

1

The following exchange occurred between defense counsel and Phillips:

6

On re-direct, the State sought to have Phillips perform an in-court demonstration of

the presumptive test on State’s Exhibit 2, and, over defense counsel’s objections,

the trial court ruled that defense counsel had opened the door to it during cross-

examination. Phillips then performed, before the jury, a presumptive test for

marijuana on a sample from State’s Exhibit 2 and the liquid turned blue.

The jury found that Z.R. had engaged in delinquent conduct, and the trial

court ordered that Z.R. be placed on probation for twelve months. Z.R. appealed.

Sufficiency of the Evidence

In his third point of error, Z.R. contends that the evidence is legally

insufficient to support the verdict. Specifically, he argues that the conviction must

be reversed because the State failed to offer the results of a definitive laboratory

test confirming that State’s Exhibit 2 was, in fact, marijuana.

A. Standard of Review

An appellate court reviews legal and factual sufficiency challenges using the

same standard of review. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.

App. 2011). “Under this standard, evidence is insufficient to support a conviction

DEFENSE COUNSEL: Would you agree with me that it sure would be

nice if the ladies and gentlemen of the jury could look at [the

presumptive test]?

PHILLIPS: Yes, sir.

DEFENSE COUNSEL: But they are now denied that right because you

threw it away?

PHILLIPS: Yes, sir.

7

if considering all record evidence in the light most favorable to the verdict, a

factfinder could not have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337

S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the acts alleged do not

constitute the criminal offense charged. Id. at 479.

The sufficiency of the evidence is measured by the elements of the offense

as defined in a hypothetically correct jury charge, which is one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court

finds the evidence insufficient under this standard, it must reverse the judgment

and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.

8

B. Analysis

The State bore the burden to prove beyond a reasonable doubt that Z.R.

knowingly or intentionally possessed two ounces or less of marijuana. TEX.

HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1). This, in turn, required proof

that: (1) Z.R. exercised actual care, control, and management over the contraband;

and (2) Z.R. had knowledge that the substance in his possession was contraband.

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Z.R. contends an officer’s identification of State’s Exhibit 2 was insufficient

to prove it was marijuana because a definitive lab test was required. But the Court

of Criminal Appeals has held otherwise: because marijuana has a distinct odor and

appearance, chemical testing and expert testimony is not necessary to prove that a

substance is in fact marijuana; instead, the substance may be identified through the

lay opinion of a police officer or other witness. See Osbourn v. State, 92 S.W.3d

531, 537 (Tex. Crim. App. 2002) (“It does not take an expert to identify the smell

of marijuana[;] . . . [rather,] a witness who is familiar with the odor of

marijuana . . . through past experiences can testify as a lay witness that he or she

was able to recognize the odor.”). Moreover, the testimony of experienced officers

can be sufficient evidence from which a jury can determine beyond a reasonable

doubt that a substance is marijuana. See Boothe v. State, 474 S.W.2d 219, 221

(Tex. Crim. App. 1971) (“The testimony from these experienced officers in the

9

narcotics division that the substance found in the building and in the automobile

appeared to them to be marihuana was sufficient for the jury to determine that it

was marihuana.”).

Here, two police officers testified that they identified State’s Exhibit 2 as

marijuana based on its appearance and smell. Phillips testified that, with his

training and experience as a police officer, he is able to identify marijuana by sight

and by its distinct smell. He testified that when he received State’s Exhibit 2 from

Aguilar, he formed the opinion based on its appearance and smell that it was

marijuana. Dale likewise testified that, through his training and experience as a

police officer, he can identify marijuana by sight and smell. He, like Phillips,

examined State’s Exhibit 2 and rendered the opinion based on its odor and

appearance that it was marijuana.2

Considering this evidence in the light most favorable to the verdict, we hold

that a factfinder could have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt, and, therefore, the

evidence is legally sufficient to support the judgment. See Osbourn, 92 S.W.3d at

2

Additionally, the jury heard evidence about Z.R.’s response to Aguilar’s inquiry

about whether Z.R. had anything on him that he should not have at school.

Although the trial court had suppressed Z.R.’s oral admission that the substance

was marijuana, the trial court did permit Aguilar’s testimony that, in response to

Aguilar’s inquiry, Z.R. unzipped his backpack, removed a pencil bag from the

backpack, and took out a plastic bag containing a leafy substance.

10

537 (permitting police officer who is familiar with odor and appearance of

marijuana through past experiences to testify as lay witness that he was able to

recognize substance as marijuana); Boothe, 474 S.W.2d at 221 (“The testimony of

these experienced officers in the narcotics division that the substance found in the

building and in the automobile appeared to them to be marihuana was sufficient for

the jury to determine that it was marihuana.”); see also Williams v. State, No. 01-

08-00936-CR, 2010 WL 2220586, at *9–10 (Tex. App.—Houston [1st Dist.] June

3, 2010, pet. ref’d) (mem. op., not designated for publication) (holding evidence

sufficient to support conviction for possession of marijuana because two officers

testified, under Rule 701, that, based on their training, experience, and personal

observations, the substance was marijuana); In re J.H., No. 04-02-00464-CV, 2003

WL 21157245, at *1–2 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem.

op., not designated for publication) (finding sufficient evidence of possession of

marijuana when juvenile, who was asked by school resource officer if he had

anything he should not have, pulled foil-wrapped package from his shoe, officer

testified he believed substance to be marijuana, took substance to his office, and its

contents tested positive for marijuana).

We overrule Z.R.’s third point of error.

11

Opinion testimony and presumptive test evidence

In his first and second points of error, Z.R. argues that the trial court

committed reversible error when it (1) admitted testimony from Phillips and Dale

distinguishing marijuana from cush and describing the meaning of the test results

of a presumptive test that was performed on State’s Exhibit 2; and (2) allowed

Phillips to conduct a presumptive test on State’s Exhibit 2 before the jury.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).

We will not reverse a trial court’s decision to admit or exclude evidence unless the

record shows a clear abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595

(Tex. Crim. App. 2003). A trial court abuses its discretion only if its decision is

“so clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

B. Analysis

In his first point of error, Z.R. complains of the admission of the officers’

testimony: (1) distinguishing marijuana from cush; and (2) describing the meaning

of the results of the presumptive test. In his second point of error, Z.R. contends

that the trial court erred by allowing Phillips to perform an in-court presumptive

test on State’s Exhibit 2. We will address these complaints in turn.

12

1. Opinion testimony distinguishing marijuana from cush

Under Rule 701 of the Texas Rules of Evidence, a witness may testify in the

form of an opinion “if the opinions or inferences are (a) rationally based on his or

her perceptions and (b) helpful to the clear understanding of the testimony or the

determination of a fact in issue.” Osbourn, 92 S.W.3d at 535; see also TEX. R.

EVID. 701. “Perceptions refer to a witness’s interpretation of information acquired

through his or her own senses or experiences at the time of the event (i.e., things

the witness saw, heard, smelled, touched, felt, or tasted).” Osbourn, 92 S.W.3d at

535. Thus, a Rule 701 witness may testify about his or her “opinions, beliefs, or

inferences as long as they are drawn from his or her own experiences or

observations.” Id. In Osbourn, the Court of Criminal Appeals held an officer’s

testimony regarding the identification of marijuana was admissible as a lay opinion

under Rule 701 because her observation that the odor she smelled was marijuana

did not require significant expertise to interpret, her observations were not

interpreted based on a scientific theory, and her opinion was based on her

perception and was helpful to the determination of a fact in issue. Id. at 537–38.

The fact that she had training or experience detecting marijuana during the course

of her employment did not preclude her from offering a lay opinion about

something she personally perceived. Id. at 538–39.

13

Likewise, here, the opinion testimony of Phillips and Dale that State’s

Exhibit 2 was marijuana and was not cush did not require significant expertise to

interpret and was based on their perceptions. Each testified that based on his

experiences, he could identify marijuana because of its distinct odor and

appearance. Dale also testified that he could identify cush and distinguish cush

from marijuana because cush does not share the same distinct odor and appearance

as marijuana. This testimony was based on the two officers’ perceptions and was

helpful to the determination of a fact in issue (i.e., whether Z.R. was in possession

of marijuana). In short, the officers’ opinion testimony that State’s Exhibit 2 was

marijuana, and not cush, based on the odor they smelled and the green, leafy

substance they saw, was admissible as lay opinion testimony under Rule 701, and

the trial court did not abuse its discretion in admitting this testimony. 3

2. Presumptive test evidence and demonstration

Z.R. next asserts it was error to admit Phillips’s testimony concerning the

results of the presumptive test and to permit the in-court demonstration of the

presumptive test on State’s Exhibit 2. At trial, Z.R.’s defensive theory was that

3

To the extent that Z.R.’s first point of error can be construed as alleging that the

trial court erred in permitting Phillips to testify about how a presumptive test is

performed, we likewise conclude this was not error. See Smith v. State, 874

S.W.2d 720, 721–22 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding

that police officer could testify as lay witness under Rule 701 about procedure he

used in performing presumptive field test).

14

State’s Exhibit 2 was not marijuana but, rather, a then-legal synthetic substance

commonly referred to as cush. To rebut this theory, the State sought to prove that

there was a presumptive test for marijuana, but not one for cush, and that if cush

was tested using the presumptive test for marijuana, the test would not change

color.

With respect to presumptive tests, Dale testified that there is a presumptive

test for marijuana, but that he is not aware of one for cush. Eder also testified that

there is a presumptive test for marijuana, that there is not one for cush, and added

that, if one were to put cush in a presumptive test intended to test for marijuana, it

would not come back positive (i.e., red or blue). Rather, the liquid would appear

brown. Finally, Phillips testified about the procedure for performing a presumptive

test, the results of the test he performed on State’s Exhibit 2 in the field, and the

significance of those results—that the test turned red or blue, indicating the

substance was marijuana. Phillips was also permitted to perform an in-court

presumptive test on a sample taken from State’s Exhibit 2 after the trial court ruled

that defense counsel had opened the door to it during cross-examination by asking

Phillips whether he thought it “would be nice if the ladies and gentlemen of the

jury could look at [the presumptive test],” and having Phillips admit that the jury

was “denied th[e] right [to view the presumptive test] because [he] threw it away.”

15

We need not decide whether the admission of this evidence was error,

because we conclude the errors in admitting it, if any, would not warrant reversal.

Generally, the erroneous admission of evidence, including opinion testimony under

Rule 701, is non-constitutional error governed by Texas Rule of Appellate

Procedure 44.2 “if the trial court’s ruling merely offends the rules of evidence.”

James v. State, 335 S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.)

(citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). A non-

constitutional error must be disregarded unless it affects the defendant’s substantial

rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); TEX. R. APP.

P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”). The Rule 44.2(b) harm standard is

whether the error in admitting the evidence “had a substantial and injurious effect

or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). When we consider the potential harm, the focus is not

on whether the outcome of the trail was proper despite the error, but whether the

error had a substantial and injurious effect or influence on the jury’s verdict.

Barshaw, 342 S.W.3d at 93–94. The Barshaw court explained:

A conviction must be reversed for non-constitutional error if the

reviewing court has grave doubt that the result of the trial was free

from the substantial effect of the error. Grave doubt means that in the

judge’s mind, the matter is so evenly balanced that he feels himself in

16

virtual equipoise as to the harmlessness of the error. In cases of grave

doubt as to harmlessness the petitioner must win.

Id. at 94 (internal citations omitted). In assessing the likelihood that the jury’s

decision was improperly influenced, we consider the record as a whole, including

testimony and physical evidence, the nature of the evidence supporting verdict, and

the character of the alleged error and how it might be considered in connection

with other evidence in case. Id. We may also consider the jury instruction given

by trial judge, the state’s theory, any defensive theories, closing arguments, voir

dire, and whether the State emphasized the error. Id.

In cases in which an officer was erroneously permitted to testify about the

meaning of the results of a field test on cocaine, courts have held any error in

admitting such testimony is rendered harmless if an expert chemist testifies that the

substance was in fact cocaine. See Hicks v. State, 545 S.W.2d 805, 809–10 (Tex.

Crim. App. 1977) (concluding that any error in admission of officer’s testimony

that field test came back positive for cocaine was rendered harmless when

qualified expert chemist testified that substance was cocaine); Smith, 874 S.W.2d

at 722 (noting that any error in admission of officer’s testimony regarding results

of field test was rendered harmless by chemist’s expert testimony that substance

was cocaine); Tovar v. State, No. 07-07-0156-CR, 2009 WL 1066115, at *2 (Tex.

App.—Amarillo Apr. 21, 2009, pet. ref’d) (mem. op., not designated for

publication) (concluding that, even if admission of non-expert police officer’s

17

testimony identifying substance possessed by appellant as cocaine was error, it was

harmless because expert chemist testified substance was cocaine); Williams v.

State, No. 01-02-00405-CR, 2003 WL 203567, at *7 (Tex. App.—Houston [1st

Dist.] Jan. 30, 2003, pet. ref’d) (mem. op., not designated for publication) (finding

that any error resulting from police officer’s testimony that field-tested crack pipe

tested positive for cocaine was harmless in light of expert witness’s subsequent

testimony identifying substance as cocaine).

In the context of marijuana, however, an experienced lay witness may

identify the substance alleged to be marijuana as such, and no expert testimony of a

chemist is needed. See Osbourn, 92 S.W.3d at 538 (noting it does not take an

expert to identify marijuana because “[u]nlike other drugs that may require

chemical analysis, marihuana has a distinct appearance and odor that are familiar

and easily recognizable to anyone who has encountered it”); see also Curtis v.

State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (experienced officer may be

qualified to testify that a certain green leafy plant substance is marijuana, but not to

testify that a powered substance is heroin or some other controlled substance).

Accordingly, in the context of a harm analysis in a marijuana case, the testimony

of a lay witness, including a police officer, that the substance is marijuana likewise

may render harmless the admission of evidence about the meaning of presumptive

test results.

18

Having reviewed the entire record as a whole, we conclude that the trial

court’s error, if any, in admitting the challenged evidence did not affect Z.R.’s

substantial rights. The State adduced strong evidence, independent of any

evidence related to presumptive test results, demonstrating that Z.R. was in

possession of marijuana. In particular, Dale, a narcotics officer, first testified that

he can identify marijuana by its distinctive appearance and odor. Then, after

examining State’s Exhibit 2 on the witness stand, Dale testified that, based solely

on the appearance and odor of State’s Exhibit 2 (as opposed to any test result), it

was his opinion that State’s Exhibit 2 was marijuana. Phillips, the school resource

officer who participated in Z.R.’s arrest, likewise testified that he is able to identify

marijuana by sight and smell. He testified that when he received State’s Exhibit 2

from Aguilar, and before performing any presumptive test on the substance, he

examined it and formed the opinion, based on its distinctive odor and appearance,

that State’s Exhibit 2 was marijuana. And, Phillips, in particular, refuted the

defense theory that the substance was cush by testifying that the appearance of

marijuana, which has stems, buds, and seeds, differs from that of cush, which is

granular and has uniform particles.

Additionally, Aguilar testified that Z.R., by taking State’s Exhibit 2 out of

his backpack when Aguilar asked whether he had “something he should not have”,

indicated with his conduct that State’s Exhibit 2 was illegal as opposed to the then-

19

legal cush. This testimony, together with the two officers’ perception-based

identifications of State’s Exhibit 2 as marijuana, is strong evidence—independent

of any evidence regarding presumptive tests—that State’s Exhibit 2 was, in fact,

marijuana. 4 See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002)

(reiterating that evidence of defendant’s guilt is one factor to be considered when

determining whether improper admission of evidence was harmful).

Z.R. correctly notes that the State referred to the presumptive tests in

closing, and that this is a factor that weighs in favor of finding harm. However, we

also note that the State reminded the jury in closing that an officer’s identification

of a substance as marijuana, based solely on its odor and appearance, is enough to

prove that the substance is in fact marijuana. The State then explicitly stated: “We

are not required to give you two tests. We are not even required to give you one.

So it comes down to the credibility of the officers.”

Moreover, considering it in the context of the entire record, we believe the

challenged evidence would not have been assigned much weight by the jury,

despite its mention in closing argument. Importantly, all three officers admitted,

during vigorous cross-examination, that there were numerous problems with the

reliability of presumptive tests. Specifically, the officers conceded that: (1) they

4

Additionally, the officers testified that it was consistent with policy not to send

marijuana to the lab for testing, refuting Z.R.’s contention that the officers or the

State had acted improperly by failing to do so.

20

are not chemists; (2) they did not understand the details of how the presumptive

test works; (3) the presumptive tests yield false positives; (4) they did not know the

rate at which the test yielded false positives; and (5) a lab test produces more

reliable results than a presumptive test. See Coble v. State, 330 S.W.3d 253, 283

(Tex. Crim. App. 2010) (finding error in admission of expert testimony harmless in

part because other expert witnesses refuted that testimony by characterizing

expert’s methodology as “unreliable and inconsistent with the standard of

practice”).

Accordingly, we conclude that any error in permitting the in-court

demonstration and admitting the testimony about the presumptive test results did

not have a substantial injurious effect or influence on the jury’s verdict because:

(1) there was ample other evidence—independent of any evidence relating to the

presumptive test—supporting a finding that Z.R. was in possession of marijuana;

(2) the same evidence—the identification of State’s Exhibit 2 as marijuana—was

admissible and admitted through Dale’s and Phillips’ testimony that they each

identified State’s Exhibit 2 as marijuana based on its odor and appearance (and not

based on the results of a presumptive test); (3) the reliability of the presumptive

test results was undermined through cross-examination, and (4) although the State

discussed the results of the presumptive test during closing, the State repeatedly

reminded the jury that State’s Exhibit 2 was identified by two officers as marijuana

21

based on its appearance and odor, and that this identification alone was enough.

We hold that, on this record, any error in admitting the testimony relating to the

results of the presumptive test and the in-court demonstration did not affect Z.R.’s

substantial rights and, therefore, was harmless. See id. at 286 (holding error in

admitting expert’s testimony about defendant’s character for violence was

harmless because (1) there was ample other evidence supporting finding that

defendant would commit future acts of violence; (2) same evidence was admitted

through other independent sources; (3) expert’s opinion was not particularly strong

or certain; (4) expert’s testimony was effectively refuted through testimony of

another expert; and (5) although State mentioned expert’s testimony in closing,

State did not emphasize it); McRae v. State, 152 S.W.3d 739, 744–45 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (holding error in admitting testimony about

improperly administered field sobriety test harmless despite being mentioned in

closing argument and sponsored by expert witness where it was cumulative of

other more persuasive evidence establishing intoxication).

We overrule Z.R.’s first and second points of error.

22

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, dissenting.

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