Spector v. State

746 S.W.2d 946, 1988 Tex. App. LEXIS 760, 1988 WL 28997
CourtCourt of Appeals of Texas
DecidedMarch 16, 1988
Docket3-87-040-CR
StatusPublished
Cited by40 cases

This text of 746 S.W.2d 946 (Spector v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spector v. State, 746 S.W.2d 946, 1988 Tex. App. LEXIS 760, 1988 WL 28997 (Tex. Ct. App. 1988).

Opinion

GAMMAGE, Justice.

Laura Hodnick Spector appeals from a judgment of conviction for possession of two ounces or less of marihuana. Tex.Rev. Civ.Stat.Ann. art. 4476-15 § 4.051(b)(1) (Supp.1988). The jury assessed punishment at 30 days in jail and $500 fine. We will affirm the judgment.

Spector was jointly tried for possession of marihuana and destruction of evidence. The jury convicted on both charges and Spector filed separate appeals. We set out the general facts applicable to both convictions and review the destruction of evidence conviction in our opinion of this date in — S.W.2d-. Here we review Spec-tor’s nine points of error complaining of the judgment of conviction for possession of marihuana.

Spector initially complains the trial court erred in failing to dismiss the charge pursuant to Tex.Code Cr.P.Ann. art. 32A.02 (Supp.1988) (the “Speedy Trial Act”). The Speedy Trial Act has been held unconstitutional and cannot provide a basis for any relief. Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987); Robinson v. State, 739 S.W.2d 795 (Tex.Cr.App.1987). Spector’s first point of error is overruled.

Spector complains in her second point of error the trial court erred in failing to grant her motion to quash the information because it failed to allege an offense. We disagree.

The information in part charged Spector knowingly possessed “a usable quantity of marihuana, to wit: in an amount of not more than two ounces.” Spector apparently argues the information effectively charged that possession of any amount of marihuana less than two ounces was a usable quantity.

A valid charging instrument must allege all of the necessary elements of the offense. In determining whether the instrument alleges all the necessary elements of the offense, the instrument must be read as a whole and construed liberally. Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985).

The elements required to allege the offense of possession of two ounces or less of marihuana are a knowing possession of a usable quantity of marihuana that is two ounces or less. Applying a liberal construction to the information in this case, we conclude it charges the necessary elements of the offense. Spector’s second point is overruled.

Spector complains in her third point of error the trial court erred by overruling *949 her objection to the charge. Spector complains the jury was permitted to convict her for any amount of marihuana rather than a usable quantity because the charge tracked the language of the allegedly defective information quoted above.

We have already concluded the information was not defective, and generally the charge should correspond to the charging instrument. Jackson v. State, 633 S.W.2d 897, 899 (Tex.Cr.App.1982). Moreover, the rest of the charge clearly informs the jury that they must find the defendant possessed a usable quantity of marihuana in order to convict her. Specter’s third point is overruled.

Spector complains in her fourth point of error the trial court erred in refusing to instruct the jury on what constitutes a usable quantity of marihuana. Spector requested the jury be instructed that a usable quantity is that “amount sufficient to be applied to the use commonly made thereof which is to smoke it in cigarettes.”

When there is no statutory definition of a term, the test of whether it must be defined is “whether the term has such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning.” Phillips v. State, 597 S.W.2d 929, 937 (Tex.Cr.App.1980). Spec-tor does not contend there is a statutory definition of “usable quantity.” We conclude the term “usable quantity” is subject to the common and ordinary meaning suggested in Specter’s requested instruction and that the jurors in this case can be fairly presumed to have known and applied that meaning. Specter’s fourth point is overruled.

Spector complains in her fifth point of error the trial court erred in denying her motion for a new trial because the evidence is insufficient to show she possessed any marihuana or, alternatively, that she possessed a usable quantity of marihuana. Within this point Spector also complains the State failed to establish a chain of custody for the contraband.

“In order to establish the unlawful possession of a controlled substance, the State must prove: (1) the accused exercised care, control and management over the contraband, and, (2) the accused knew the substance possessed was a controlled substance.” Naquin v. State, 607 S.W.2d 583, 586 (Tex.Cr.App.1980). Spector does not dispute the substance found in her car was marihuana; consequently we must only determine if Spector possessed the substance.

Spector was a case worker for the Texas Department of Mental Health and Mental Retardation at the time of her arrest. Part of Specter’s duties as a case worker included chauffeuring patients with substance-abuse problems. Spector contends one of her patients left the marihuana found in her car and she never exercised control over the contraband so as to possess it.

The record reveals otherwise. The arresting officer testified Spector was the only occupant of her car when she was stopped for speeding. While Spector attempted to pull over, the officer observed her leaning over to the passenger side of the front seat as if she were doing something with her hands. When the officer approached Specter’s car he smelled the odor of burnt marihuana. The officer found the marihuana cigarette on the lip of Specter’s open purse. The cigarette was wet as if a liquid had been poured over it. Viewing the evidence in the light most favorable to the prosecution, we conclude it is sufficient to show Spector exercised sufficient care, control, and management over the contraband to have possessed it. Jackson v. State, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1974); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (opinion on State's motion for rehearing).

Even if she possessed some marihuana, Spector contends the amount possessed was not a usable quantity. The State’s drug analysis expert testified the marihuana he tested weighed .19 grams, a usable amount, but “kind of the limit of usability.” Considering the testimony that Spector attempted to destroy the marihua *950 na cigarette after it was found in her car and that part of its contents were lost (see 746 S.W.2d 945

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Bluebook (online)
746 S.W.2d 946, 1988 Tex. App. LEXIS 760, 1988 WL 28997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spector-v-state-texapp-1988.