Frank Neal Rodriguez v. the State of Texas

Affirmed and Memorandum Opinion filed September 19, 2024.

In the

Fourteenth Court of Appeals

NO. 14-23-00780-CR

FRANK NEAL RODRIGUEZ, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1
Brazos County, Texas
Trial Court Cause No. 22-03839-CRM-CCL1

MEMORANDUM OPINION

In appellant Frank Neal Rodriguez’s appeal of his conviction for unlawful
carrying of a weapon while in possession of drug paraphernalia, he challenges the
legal sufficiency of the evidence that an item found in the vehicle he was driving
constitutes “drug paraphernalia.” We affirm.
I. BACKGROUND

Shortly after 10:00 a.m. on August 5, 2022, Marcelo Maldonado of the Bryan
Police Department witnessed appellant drive past a stop sign without slowing or
stopping. Maldonado stated that before appellant stopped the vehicle completely,
Maldonado saw appellant make furtive movements “like he was placing something
down on the passenger’s seat.” During the traffic stop, Maldonado smelled
marijuana. Appellant was carrying a semi-automatic handgun in a holster, and after
Maldonado removed appellant’s firearm, Maldonado searched the vehicle.

Under the passenger seat Maldonado found a brown wooden container
divided into two chambers. Maldonado testified that such a container is commonly
referred to a “one-hitter.” Maldonado explained that one of the container’s chambers
holds marijuana and the other holds a pipe––in this instance, a metal pipe––used to
smoke marijuana. He stated that the container is called a “one-hitter” because one
would normally load it with enough marijuana for one hit. According to Maldonado,
there was residue in the container, which smelled like marijuana. Maldonado
testified that, as a result of his training and experience, he can distinguish the smell
of marijuana from the smell of hemp. Maldonado field-tested the residue and the
result was “presumptive[ly] positive for THC,” but he testified that his department
does not send “misdemeanor drugs” or paraphernalia for laboratory analysis.

Video from Maldonado’s body camera includes exchanges between
Maldonado and appellant about marijuana. Before the search, Maldonado asked
appellant whether there was anything illegal in the vehicle, and appellant said,
“There shouldn’t be.” Maldonado specifically asked whether certain items would be
in the vehicle, including “usable amounts of weed”1 and paraphernalia. Appellant

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Maldonado testified that “weed” means marijuana.

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said, “no” to the listed items, and Maldonado responded, “Okay. Why does it smell
like weed?” Appellant answered, “I had been smoking earlier this morning, or like,
getting ready for work.” After Maldonado discovered the “one-hitter” in the vehicle,
he showed it to appellant and asked, “This yours?” Appellant briefly covered his
face, then said, “I really thought that was at home.” Maldonado said, “It smells kind
of fresh. Is this the one you used?” Appellant answered, “Yeah, I really thought I
left it at home.”

Appellant was charged with unlawful carrying of a weapon while in
possession of drug paraphernalia. After a non-jury trial, appellant was convicted and
sentenced to community supervision for one year. On appeal, appellant argues that
there is legally insufficient evidence that the “one-hitter” constitutes “drug
paraphernalia” because the residue it contained was not tested to determine whether
it was more than 0.3% delta-9-tetrahydrocannabinol (THC).

II. STANDARD OF REVIEW

When determining whether evidence is legally sufficient to support a
conviction, we view all the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom, whether
any rational fact finder could have found the elements of the offense beyond a
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing
Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
We may not substitute our judgment for that of the fact finder by re-evaluating the
weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Rather, we defer to the fact finder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Id. If any rational trier of fact could have found the essential elements

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of the crime beyond a reasonable doubt, we must affirm. McCain v. State, 22 S.W.3d
497, 503 (Tex. Crim. App. 2000).

III. LEGAL SUFFICIENCY

A person commits the offense of unlawful carrying of a weapon if the person
intentionally, knowingly, or recklessly carries a handgun on or about his or her
person while engaged in criminal activity (with the exception of certain
misdemeanors inapplicable here). See TEX. PENAL CODE § 46.02(a-1)(2)(A). The
criminal activity at issue here is the offense of possession of drug paraphernalia. A
person commits that offense if the person knowingly or intentionally uses or
possesses with intent to use drug paraphernalia to store, contain, or conceal a
controlled substance or to introduce a controlled substance into the human body in
violation of the Texas Controlled Substances Act.2 See TEX. HEALTH & SAFETY
CODE § 481.125(a).

Appellant’s legal-sufficiency challenge focuses on the distinction between
marijuana, as defined in the Texas Controlled Substances Act, and hemp. With
certain exceptions, marijuana (or “marihuana” as it is spelled in the Act) “means the
plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every
compound, manufacture, salt, derivative, mixture, or preparation of that plant or its
seeds.” Id. § 481.002(26). The term does not include hemp. Id. § 481.002(26)(F).
“Hemp” refers to any part of that plant “including the seeds of the plant and all
derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,
whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not
more than 0.3 percent on a dry weight basis.” TEX. AGRIC. CODE § 121.001.

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TEX. HEALTH & SAFETY CODE §§ 481.001–.354.

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Appellant argues that the only way to distinguish the controlled substance
marijuana from the legal substance hemp is through laboratory testing to determine
the substance’s THC concentration. According to appellant, the THC concentration
of the residue in the one-hitter was an essential element that the State was required
prove, but because the residue was not tested, the evidence is legally insufficient to
support his conviction.

But the State could determine that the one-hitter was “drug paraphernalia”
without proving the THC concentration of the residue. Subject to the rules of
evidence, a court determines whether an object is “drug paraphernalia” by
considering not only “the existence of any residue of a controlled substance on the
object,” but also “statements by an owner or person in control of the object
concerning its use,” “the existence and scope of uses for the object in the
community,” “the physical design characteristics of the item,” “expert testimony
concerning the item’s use,” and “all other logically relevant factors.” TEX. HEALTH
& SAFETY CODE § 481.183(a). Maldonado’s testimony and appellant’s recorded
statements provide such evidence.

The evidence presented is legally sufficient to establish that the one-hitter is
drug paraphernalia. Maldonado has taken classes in narcotics investigation and has
more than ten years’ experience as a patrol officer, and he offered expert testimony
about the one-hitter. He explained that one chamber is used to store marijuana and
that the other chamber stores the pipe used to smoke it. Although he agreed it was
possible that it could be used to smoke tobacco, he stated that he had never come
into contact with anyone who did so. He stated that he could differentiate between
the smell of hemp and marijuana, and that the vehicle and the one-hitter smelled like
marijuana.

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The video from Maldonado’s body camera contains further evidence that the
appellant actually used this specific item to smoke marijuana. Appellant accounted
for the smell of marijuana in his vehicle by stating that he had been smoking it earlier
that morning, and when Maldonado asked if the one-hitter was “the one you used,”
appellant affirmed that it was.

From this evidence, a rational fact finder could have found all of the elements
of the offense beyond a reasonable doubt. Thus, we overrule the sole issue presented.

IV. CONCLUSION

The evidence is legally sufficient to establish that appellant engaged in the
criminal activity of possessing drug paraphernalia, and appellant does not dispute
that he was knowingly or intentionally carrying a handgun on his person at that time.
We accordingly affirm the trial court’s judgment.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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