JONES v. STATE (2025)

OPINION

A jury convicted appellant Denise Nicole Jones of possessing marijuana in an amount that was two ounces or less, a Class B misdemeanor, and assessed her a $1,000 fine, but no jail time. See Tex. Health & Safety Code Ann. § 481.121(b)(1); Tex. Penal Code Ann. § 12.22. By a single issue, with three distinct subparts, Jones argues that the evidence was legally insufficient to support her conviction because: (1) the State failed to prove with scientific certainty that the substance in her possession was marijuana, rather than legal hemp; and (2–3) there is “no evidence” in the record concerning the weight of the substance or whether the amount was a usable quantity. We affirm.

I. Background

On April 19, 2024, Deputy Erik Johnson of the Wharton County Sheriff's Office (WCSO) conducted a traffic stop on a vehicle registered to Jones, who was riding in the front passenger seat at the time of the stop. Deputy Johnson testified that he has made “a number of narcotic arrests” and participated in “several narcotic interdiction courses” during his career in law enforcement.

As Deputy Johnson approached the vehicle, he observed that Jones and the male driver had “freshly-lit cigarettes.” In Deputy Johnson's experience, that can be “a sign” or “a big indicator” that the occupants of a vehicle are attempting “to cover up an odor.” Upon contacting Jones and the driver, Deputy Johnson observed “some, little, like, marijuana blunt joints inside the ashtray in plain view.”

Deputy Johnson did not initially detect the odor of burnt marijuana “because of the cigarette smoke.” Deputy Johnson asked Jones and the driver to exit the vehicle, and as they did, the “cigarette smoke left the vehicle” with them. At that point, Deputy Johnson “instant[ly]” detected “the odor of marijuana.” He confirmed at trial that, “based on his years of experience in law enforcement,” the odor of marijuana is something that he “would immediately recognize and be able to separate from any other odor.”

These observations prompted him to search the vehicle. Deputy Johnson found a “make[ ]up bag” “belonging to [Jones]” “on the passenger's side floorboard.” Inside of this bag he “found a clear, plastic baggie with a green, leafy substance commonly known as marijuana.” He further described the substance as “quite a few small buds.” The below picture was admitted into evidence depicting Jones's makeup bag, the substance Deputy Johnson identified as marijuana, and the item he recovered from the ashtray:

Deputy Johnson further testified that he discovered cigar wrappers during his search of the vehicle. He said that these cigars had been emptied of tobacco, and the wrappers “are commonly used” to smoke marijuana.

The incident was captured on Deputy Johnson's dashcam and bodycam. Copies of both videos were admitted into evidence, and portions of each exhibit were played for the jury. As depicted in the bodycam video, after completing his search, Deputy Johnson approaches Jones, holds up the plastic bag, and tells her that he found it “in [her] makeup bag.” Jones responds, “I didn't even know that was in there. That [makeup] bag has been in there for so long, along with all that other old junk [in the vehicle]. I had no idea it was in there.” Deputy Johnson testified that freshly cultivated marijuana smells more “potent” than old marijuana. In his opinion, the substance he found in Jones's makeup bag did not smell like old marijuana.

On cross-examination, Deputy Johnson acknowledged that there could be other reasons why a person would elect to smoke a cigarette upon being stopped by police. For instance, he agreed that someone may just “be getting their last cigarette” before arriving at work, saying “[i]t's possible.” Deputy Johnson admitted that he had not received training on the differences between hemp and marijuana. He was also unaware of whether the two substances “smell identical,” as suggested by Jones's counsel.

Deputy Johnson also acknowledged that a substance can be positively identified as marijuana through scientific testing. He further acknowledged that it is uncommon for WCSO to “field test for marijuana” and that no such test was conducted in this case. Similarly, although Deputy Johnson seized the substance as evidence, WCSO did not send it to the Texas Department of Public Safety's (DPS) crime laboratory for testing. Sergeant Stephanie Schoof, custodian of evidence for WCSO, explained that it would have been pointless to do so because DPS “does not test misdemeanor levels of marijuana.”

She also explained that “in conjunction with the District Attorney's Office,” WCSO has a retention policy regarding misdemeanor amounts of marijuana—after documenting, photographing, and weighing the evidence, WCSO destroys it. The policy is memorialized in a written document, which was admitted into evidence. The substance seized from Jones was not produced at trial because it had already been destroyed. Jones did not file any pretrial motion or lodge an in-trial objection that WCSO's retention policy frustrated her right to independently test the substance.

The jury returned a guilty verdict and assessed punishment as described above. This appeal ensued.

II. Standard of Review

To satisfy constitutional due process requirements, a criminal conviction must be supported by sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We measure the sufficiency of the evidence against “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

In a legal sufficiency review, “we consider all the evidence in the light most favorable to the verdict.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021). In its role as factfinder, the jury is the sole judge of witness credibility and the weight to be given to testimony. Tex. Code Crim. Proc. Ann. art. 38.04; Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). In practice this means the jury is free to believe or disbelieve any portion of a witness's testimony. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). It is also within the sole province of the jury to reconcile conflicts, contradictions, and inconsistencies in the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

The jury may “draw reasonable inferences from the evidence presented at trial, so long as each inference is supported by the evidence produced at trial.” Baltimore v. State, 689 S.W.3d 331, 342 (Tex. Crim. App. 2024). “[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them.” Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)). When drawing those inferences, the jury “may use common sense, common knowledge, personal experience, and observations from life.” Baltimore, 689 S.W.3d at 342. We consider “whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). “When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination.” Id. at 448–49.

“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper, 214 S.W.3d at 13). In circumstantial evidence cases, “it is not necessary that every fact and circumstance ‘point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.’ ” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).

A hypothetically correct jury charge in this case would require the State to prove beyond a reasonable doubt that Jones knowingly or intentionally possessed a usable quantity of marijuana in an amount that was two ounces or less. See Tex. Health & Safety Code Ann. § 481.121(b)(1).

III. Analysis

A. Marijuana vs. Hemp

The first part of 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 the 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 Cannabis sativa L. 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 Ann. § 121.001. Stated differently, marijuana and hemp are the same plant, with the only difference being the concentration of delta-9 tetrahydrocannabinol (THC), which creates the feeling of intoxication associated with marijuana use. See 25 Tex. Admin. Code Ann. § 300.101(10) (2020) (Dept. of St. Health. Servs., Definitions) (defining THC as “[t]he primary psychoactive component of cannabis”).

Prior to Texas legalizing hemp in 2019, it was long held that a police officer's testimony was sufficient to establish that a substance was marijuana. Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (“This Court has held that an experienced officer may be qualified to testify that a certain green leafy plant substance is marihuana.”); Boothe v. State, 474 S.W.2d 219, 221 (Tex. Crim. App. 1971) (“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 Burch v. State, No. 05-10-01389-CR, 2012 WL 2226456, at *7 (Tex. App.—Dallas June 18, 2012) (not designated for publication) (noting that an officer is competent to identify marijuana), aff'd, 401 S.W.3d 634 (Tex. Crim. App. 2013). Considering marijuana and hemp are apparently indistinguishable by appearance and smell, some defendants are now arguing that the State cannot prove beyond a reasonable doubt that a substance is marijuana by relying solely on an officer's sensory identification. See, e.g., Smith v. State, 620 S.W.3d 445, 453 (Tex. App.—Dallas 2020, no pet.) (declining to address the merits of the argument because the offense occurred before H.B. 1325 took effect and “the changes enacted by the Legislature in H.B. 1325 apply prospectively”). In other words, to legally establish that a substance is marijuana, is the State now required, as Jones suggests, to scientifically prove that the substance meets the threshold for THC concentration? As far as we know, the Texas Court of Criminal Appeals has yet to weigh in on the matter.

We conclude that the legalization of hemp did not alter the State's burden of proof. In doing so, we expressly reject Jones's contention that the State is required to prove with scientific certainty that the substance in question is marijuana, rather than hemp.¹ Instead, we hold that an officer's opinion on the identity of the substance, combined with other incriminating evidence, can be legally sufficient to support a jury's finding that a defendant possessed marijuana. We further hold that direct and circumstantial evidence in this case supports such a finding.

Even with the legalization of hemp, an officer, through training and experience, is competent to identify a substance as Cannabis sativa L. To be sure, when an officer opines that a “green, leafy substance” is marijuana, at bottom, they are identifying the substance as Cannabis sativa L., regardless of its THC concentration. See Tex. Health & Safety Code Ann. § 481.002(26); Tex. Agric. Code Ann. § 121.001. The question then becomes whether the State offered additional proof that would allow a rational jury to conclude that the substance was the marijuana variety of Cannabis sativa L.

Here, Deputy Johnson, based on his training and experience, opined that the “green, leafy substance” in question was marijuana. This evidence was legally sufficient to establish that the substance was Cannabis sativa L. The State also offered several pieces of circumstantial evidence that would allow the jury to draw a reasonable inference that the substance in question was marijuana.

“A defendant's conduct after the commission of a crime which indicates a ‘consciousness of guilt’ is admissible to prove that he committed the offense.” Hedrick v. State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd)). “A ‘consciousness of guilt’ may be one of the strongest indicators of guilt.” Hance v. State, 714 S.W.3d 775, 816 (Tex. App.—Fort Worth 2025, no pet.) (quoting Lee v. State, 866 S.W.2d 298, 302 (Tex. App.—Fort Worth 1993, pet. ref'd), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 572 (Tex. Crim. App. 2000)); Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi–Edinburg 1993, pet. ref'd). For example, “[a]ttempts to conceal incriminating evidence ․ are probative of wrongful conduct and are also circumstances of guilt.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

Deputy Johnson testified that he did not initially detect the odor of recently burnt marijuana because Jones and the driver began smoking “freshly-lit cigarettes” inside the vehicle. According to Deputy Johnson, this can be “a sign” or “a big indicator” that Jones and the driver were attempting to mask an odor. Indeed, after Jones and the driver were removed from the vehicle, Deputy Johnson “instant[ly]” detected the odor of marijuana, which was consistent with the burnt roach depicted in the picture above. Deputy Johnson acknowledged that there could be other reasons why a person would choose to smoke a cigarette upon being stopped by police. However, we defer to the jury to resolve competing inferences and presume that it did so in favor of its verdict. See Murray, 457 S.W.3d at 448–49. Viewing this evidence in the light most favorable to the verdict, a jury could rationally infer that Jones lit her cigarette to mask the odor of recently consumed marijuana. See Guevara, 152 S.W.3d at 50.

One of Jones's defensive theories at trial was that hemp looks and smells the same as marijuana. She did not produce any positive evidence to that effect at trial. But even if we assume that her theory is correct and commonly understood, the jury was free to use its “common sense, common knowledge, personal experience, and observations from life” to assess Jones's implied suggestion that she was merely smoking hemp. Baltimore, 689 S.W.3d at 342. The jury received evidence that, in addition to the roach and “clear, plastic baggie” containing “quite a few small buds,” Deputy Johnson also found emptied cigar wrappers that “are commonly used” to smoke marijuana. It was up to the jury to weigh the credibility of Jones's suggestion that, although she was engaging in behavior commonly associated with marijuana use, she was actually smoking hemp. See Baltimore, 689 S.W.3d at 342.

Finally, and perhaps most importantly, Jones arguably made a self-incriminating statement about the identity of the substance. It has been said that a “defendant's own confession is probably the most probative and damaging evidence that can be admitted against [them].” Arizona v. Fulminante, 499 U.S. 279, 292, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139–40, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). When confronted with the “green, leafy substance,” Jones did not deny that it was marijuana or claim that it was legal hemp. On the contrary, she only claimed that she “had no idea it was in there” because, according to Jones, her makeup bag had been in the vehicle for a long period. This statement was consistent with her other defensive theory at trial—that she did not knowingly or intentionally possess marijuana. See Tex. Health & Safety Code Ann. § 481.121(a). As her counsel put it during closing, the vehicle was “filled with all kinds of junk,” as shown in the bodycam video. Counsel then suggested that people do not normally search through the contents of their vehicle before traveling to work, rhetorically asking the jury, “But who does that, right?” Or said differently, Jones argued that she forgot the substance was in her vehicle, so she did not knowingly or intentionally possess it.

The jury clearly rejected Jones's defensive theory that she lacked the requisite mens rea. Based on the circumstances and substance of Jones's statement, it was rational for the jury to conclude that she implicitly admitted to Deputy Johnson that “it” was marijuana. At the very least, her reaction was consistent with someone who believed the substance was incriminating. Either way, her statement, when viewed through the proper lens, evidenced a consciousness of guilt. See Hedrick, 473 S.W.3d at 830.

Viewing the cumulative force of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could find beyond a reasonable doubt that the “green, leafy substance” in Jones's possession was marijuana. See Hammack, 622 S.W.3d at 914. We overrule Jones's first sub-issue.

B. Usable Quantity

Jones also argues that there is “no evidence” in the record establishing that she possessed a “usable quantity” of marijuana. See Tex. Health & Safety Code Ann. § 481.121(a). What qualifies as a “usable quantity” is not statutorily defined, but the Texas Court of Criminal Appeals has stated that for marijuana to be a “usable amount,” there must be “ ‘an amount sufficient to be applied to the use commonly made thereof.’ ” Moore v. State, 562 S.W.2d 226, 228 (Tex. Crim. App. 1977) (quoting Pelham v. State, 164 Tex.Crim. 226, 298 S.W.2d 171, 173 (Tex. Crim. App. 1957)). Whether a particular amount of marijuana is a usable quantity can be proven by circumstantial evidence. Lejeune v. State, 538 S.W.2d 775, 779–80 (Tex. Crim. App. 1976); Smith, 620 S.W.3d at 455.

Here, Deputy Johnson stated that Jones possessed “quite a few small buds” of marijuana. While Deputy Johnson did not testify directly that this constituted a usable quantity, the jury could reasonably infer that “quite a few small buds” is an amount sufficient to smoke. See Lejeune, 538 S.W.2d at 779–80; Moore, 562 S.W.2d at 228; Smith, 620 S.W.3d at 455. Moreover, his description was corroborated by the above photograph, which shows an amount of marijuana that far exceeds other amounts deemed sufficient to establish a “usable quantity” of marijuana. Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (finding matchbox half full of marijuana sufficient to establish a usable quantity); Tolbert v. State, 711 S.W.2d 380, 382 (Tex. App.—Beaumont 1986, pet. ref'd) (finding matchbox approximately three-fourths full sufficient to constitute a usable quantity); see also Johnson v. State, No. 14-22-00296-CR, 2023 WL 2981815, at *3 (Tex. App.—Houston [14th Dist.] Apr. 18, 2023, no pet.) (mem. op., not designated for publication) (finding evidence sufficient that included a photograph of “two distinct marijuana buds”). We overrule Jones's second sub-issue.

C. Weight

Jones also argues that there is “no evidence” in the record establishing that the amount was two ounces or less. See Tex. Health & Safety Code Ann. § 481.121(b)(1). The Texas Court of Criminal Appeals recognized in Lejeune that the “amount possessed in ounces as set forth in the statute” is a distinct element from “usable quantity.” 538 S.W.2d at 777.

The State did not offer any direct evidence concerning the weight of the marijuana. Deputy Johnson did not offer an opinion. And although it is the WCSO's policy to weigh any misdemeanor amount of marijuana before destroying it, no such evidence was offered at trial. This omission is certainly unusual; typically, possession cases include some direct evidence about the weight of the marijuana. See, e.g., Mitchell, 482 S.W.2d at 225 (marijuana found in the matchbox weighed either .74 grams or .0074 grams); see also Johnson, 2023 WL 2981815, at *3 (“two distinct marijuana buds” weighed 1.3 grams or .04 ounces).

The State concedes that “[n]o evidence was provided as to the actual weight of the marihuana.” The State argues, however, that it is not required to disapprove a higher-level offense. By proving that Jones possessed a usable quantity of marijuana, the State suggests that failure to prove the actual weight was not harmful because Jones was only convicted of a Class B misdemeanor, the lowest-level offense for possession of marijuana. See Tex. Health & Safety Code Ann. § 481.121(b)(1)–(6) (ranging from a Class B misdemeanor “if the amount of marijuana possessed is two ounces or less” to a first-degree felony “if the amount of marijuana possessed is more than 2,000 pounds”).

If Jones had been convicted of a higher-degree offense, we would find the State's failure to prove the actual weight far more concerning because that element determines the level of offense. See id. However, because the State proved beyond a reasonable doubt that Jones knowingly or intentionally possessed a usable quantity of marijuana, the State necessarily proved that Jones possessed some “amount” of marijuana. See id. In conducting our review, we are mindful that “[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Temple, 390 S.W.3d at 359 (quoting Hooper, 214 S.W.3d at 13). We conclude that, based on the above picture, a rational juror could infer that the amount possessed was at least “two ounces or less.” See Tex. Health & Safety Code Ann. § 481.121(b)(1). And because this fact was proven beyond a reasonable doubt, we cannot say that Jones's due process rights were violated by the State's failure to offer evidence of the precise weight.² See Laster, 275 S.W.3d at 517. Jones's last sub-issue is overruled.

In sum, we hold that a rational jury could find each challenged element of the offense beyond a reasonable doubt. See Stahmann, 602 S.W.3d at 577.

IV. Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   We note that under the Texas Controlled Substances Act, “[t]he state is not required to negate an exemption or exception provided by this chapter in a complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this chapter.” Tex. Health & Safety Code Ann. § 481.184(a). Further, “[a] person claiming the benefit of an exemption or exception has the burden of going forward with the evidence with respect to the exemption or exception.” Id. In interpreting this language, one of our sister courts recently determined that a person charged with possession of marijuana has the burden of proving “that the substance in question was merely hemp.” Luong v. State, Nos. 05-24-00818-CR, 05-24-00819-CR, 2025 WL 230883, at *9 (Tex. App.—Dallas Aug. 11, 2025, no pet. h.) (mem. op., not designated for publication). The parties have not briefed us on this issue. Accordingly, we reserve for another day whether § 481.002(26)(F) is “an exemption or exception” under § 481.184(a).

2.   Our holding is confined to the specific facts of this case, and the State should not read it as an invitation to stop offering evidence of the precise weight of marijuana in Class B misdemeanor cases. The best practice is always to offer this evidence.

Opinion by Justice Cron