OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
In a trial before the court the appellant was convicted of the unlawful possession of less than two ounces of marihuana. Punishment was assessed at one day in the
The appellant advances three grounds of error: that the State was not ready for trial within the applicable time limit set forth in the Speedy Trial Act, 32A.02, V.A. C.C.P.; that the inventory search of his car violated the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution, and that the contraband obtained therefrom was improperly admitted into evidence; and that the evidence was insufficient to prove that the substance seized was marihuana. We disagree and affirm.
The record reflects that on July 28, 1980, Officer Lybrand of the Dallas Police Department noticed a pick-up truck traveling at a high rate of speed. After following the truck for approximately five blocks, Officer Lybrand established that the truck was traveling 50 miles per hour in a 35 mile per hour zone. When Officer Lybrand turned on his siren he saw the appellant lean over to his extreme right, holding the steering wheel with his left hand. Officer Lybrand said that as the appellant leaned over, "he appeared to be doing something." The appellant then pulled over and Lybrand asked to see his driver's license. The appellant answered that he had no identification so Lybrand placed him under arrest. The appellant was placed in the back of the police car and Officer Lybrand began to make an inventory search of the truck in order to protect the vehicle and its contents. During the search he saw a yellow envelope sticking out between the driver's seat and the passenger's seat. He opened the envelope and inside found a baggie containing a substance he believed to be marihuana.
The appellant contends that the State failed to show that the substance possessed by the appellant was marihuana. Specifically, he complains that there was no description of the characteristics of the substance seized, nor was there a comparison of the substance seized with what the officer knew to be marihuana.
It is undisputed that the marihuana was not introduced, nor was a chemical analysis introduced. The State, however, contends that Officer Lybrand was testifying in the capacity of an expert witness and on the basis of his previous experience and training regarding the identification of marihuana. Officer Lybrand's testimony concerning the marihuana is as follows:
[Objection by defense counsel overruled.]
That Officer Lybrand testified that he believed
The appellant contends that the inventory search of his car violated the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution, and that the marihuana seized during that search should not have been admitted into evidence. Officer Lybrand's testimony reveals that he observed the appellant driving at an excessive speed and that when he stopped the appellant and asked for his driver's license the appellant said he did not have one with him. Officer Lybrand then asked the appellant to step out of the truck and he arrested him. An inventory search of the truck was conducted, during which Officer Lybrand found the marihuana in an envelope between the front seats. Neither at trial nor on appeal has the State attempted to justify the search of the truck as anything but an inventory search. Cross-examination of Officer Lybrand by defense counsel produced the following colloquy:
The burden of proof is upon the State to show a lawful inventory search. Benavides v. State, 600 S.W.2d 809 (Tex.Cr. App.1980). The appellant contends that there was no showing that the seizure and subsequent search of the truck was justified because there was no showing that the vehicle was an impediment to traffic or was a hazard on the road where it was stopped. In the instant case, however, the State did show justification for the inventory search. Officer Lybrand testified that he had already determined that the appellant would be placed in custody and taken to jail. He further testified that he made an inventory search of the truck in order to protect the vehicle by placing it in the auto pound and in order to protect any valuable articles in the truck by placing them in the police department property room. The inventory search was not conducted for no reason as the appellant contends; clearly, Officer Lybrand could not have properly allowed the appellant to drive away from the scene without a driver's license. Impoundment of the vehicle would have been the logical and proper consequence of the arrest had not the appellant's wife arrived on the scene to take the truck home.
The appellant contends that the trial court erred in denying his motion for dismissal under the Speedy Trial Act because the State was not ready for trial within the statutory limit of sixty days. Art. 32A.02, Sec. 1(3), V.A.C.C.P.
The record reflects that the appellant was arrested on July 28, 1980, and released on bail the following day. The appellant was charged with the offense by information filed in Cause No. MB-80-40734-B, and the State announced ready
The appellant argues that "if the State was not ready for trial on December 30, 1980, then it had not been ready at all times prior thereto." We disagree. The record reflects that the affidavit erroneously was not signed, and on December 30, 1980, it was dismissed and a new affidavit substituted for it. The State announced ready for trial on August 5, 1980, and there is nothing in the record to show that the State could not have proceeded to trial on August 5, 1980, or on December 30, 1980.
It is the appellant's contention that a valid information is absolutely essential in order to show the State's readiness for trial. This Court has held that the existence of a valid charging instrument is an element of State preparedness. Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980). However, in Pate, supra, the State could not have been ready within 120 days because there was no indictment or felony information upon which the State could have announced ready, valid or otherwise. We find the distinction between an announcement of ready on no indictment or information and an announcement of ready on a defective indictment or information to be of paramount significance.
In the instant case the error in the first information was corrected on the same day that the error was discovered. The appellant has not shown that the State's announcement of ready was not made in good faith or that the State was otherwise unprepared for trial. The appellant has not sufficiently rebutted the State's claim of preparedness for trial. See Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979).
We note that in Kernahan v. State, 643 S.W.2d 210 (Tex.App.1982) (Petition for Discretionary Review granted), the Court of Appeals in El Paso stated that "the existence of a valid charging instrument is as much an element of State preparedness as acquisition of evidence, witness availability and presence of the defendant," citing Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980). That court, however, misinterpreted the holding in Pate when it held that "the State cannot be ready for trial in the absence of a valid charging instrument." To the extent that it is in conflict with this opinion, Kernahan, supra, is overruled.
The judgment of the Court of Appeals is in the instant case is affirmed.
TEAGUE, J., dissents.
CLINTON, Judge, concurring.
The court of appeals found that Officer Lybrand testified "that the substance was, in his opinion,
The majority of this Court now opines that "although he used the concept belief to describe his thoughts, Officer Lybrand was giving his expert opinion on the identification of the substance as marihuana," and then directs the reader: "See McCormick and Ray, Texas Practice: Law of Evidence, (3rd Ed.1980) Sec. 139." The section is captioned "General Test for Receiving Opinions of Lay Witnesses—Ratiocinative Opinions (Understanding, Impression, Belief, etc.). And therein lies the weakness of the rationale of the majority on this point. Lay witnesses are allowed some latitude in expressing themselves, but Officer Lybrand is
To aid a finder of fact an expert may give an opinion founded on his skill, knowledge or experience regarding a matter beyond that of average laymen. Ray, Law of Evidence § 1400, 2 Texas Practice 23-26. However, I find it most doubtful that Officer Lybrand was testifying in an expert capacity. After all, it was he who chose to speak in terms of what he "believed," for his use of the word came in response to a question about what he found in the envelope. The questioner simply picked up on that, and sought to bolster a likelihood that the "belief" was well founded, but in my view he did not ever attempt to elevate the officer to expert status on identifying a substance as marihuana.
To be straightforward about the matter, let us revisit what seems to be the first decision of the Court on this particular point: Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301 (1938). The Court held that three Bee County officers were properly permitted to state their respective opinions —over objection not qualified as experts to give it—that substance in four cigarettes was marihuana, following testimony "showing that they were familiar with marihuana," id., 129 S.W.2d at 303.
Since then the Court has accepted testimony from peace officers whose experience is shown to be adequate—without requiring that they be qualified as experts. See Alcala v. State, 163 Tex.Cr.R. 453, 293 S.W.2d 645 (1956); Satery v. State, 455 S.W.2d 294, 296 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Houlihan v. State, 551 S.W.2d 719, 724 (Tex.Cr.App. 1977). On the other hand, in Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959), testimony of an arresting officer that the substance seized was marihuana was found sufficient, in that his experience as a narcotics officer was enough "to show his qualifications to testify as an expert," id., at 468;
Instead of mixing differing concepts of expression of "belief" by lay witnesses and "opinion" by experts, this Court should delineate the two for the bench and bar, and then leave it to the prosecution to opt for one or the other, depending on training, experience and qualifications of the particular
Returning to the instant cause, I would find that the State did not undertake to, and did not in law, qualify Officer Lybrand as an expert, but relied on his familiarity with marihuana to support his stated belief that the bagged substance in the envelope was in fact marihuana—the lay witness rule. I would then hold that, though marginal at best, his testimony is sufficient to support the finding of the trial court that appellant possessed less than two ounces of marihuana. Hernandez v. State, supra, and its progeny cited ante.
Therefore, I agree that ground three must be overruled and, reluctantly, that the judgment of the court of appeals be affirmed.