Proving a Green, Leafy Substance Is Marijuana at Trial

Facts:

Defendant was arrested and charged for possession of marijuana. The State has not done a chemical analysis of the substance found on the defendant to determine whether it was marijuana. Rather, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana.

Issue:

Is the testimony of police officers, absent a chemical analysis, sufficient to prove the substance found on the defendant was marijuana?

Short Answer:

Yes. The testimony of an officer who has been trained to recognize marijuana by its physical characteristics is sufficient to prove the substance found in the possession of the defendant is marijuana.

Discussion:

When it charges a defendant with possession of marijuana, the State must prove the substance found in the defendant’s possession is marijuana. See Tex. Health & Safety Code Ann. § 482.121 (Vernon 2003); Adair v. State, 482 S.W.2d 247, 253-54 (Tex. Crim. App. 1972); Boothe v. State, 474 S.W.2d 219, 220-21 (Tex. Crim. App. 1972). But the State does not need to conduct a chemical analysis of the substance to determine whether it is marijuana. Boothe v. State, 474 S.W.2d at 221. In fact, the testimony of the officer who discovered the substance on the defendant is sufficient to prove the substance is marijuana as long as he has received sufficient training in identifying marijuana by its physical characteristics. Id. In Boothe v. State, a boy led two narcotics officers to a building under construction where they found several bags containing a “weed looking substance.” Id. at 220. One officer had spent three years in the narcotics division, had been trained to recognize marijuana by its physical characteristics, and had encountered marijuana hundreds of times on the average of five times per week. Id. The other officer had been in the narcotics division for only one-and-one-half years but had been trained to recognize marijuana by its physical characteristics. Id. The officers determined the “weed looking substance” was marijuana and set up a stake out to apprehend whoever had left it in the building. Id. Boothe arrived to retrieve the marijuana and was arrested. Id. A chemical analysis was performed on the marijuana, and Boothe attacked the test, arguing the State could not establish the chain of custody to prove the substance he retrieved and the substance the police found were the same. Id. The Court of Criminal Appeals did not address Boothe’s claim and held no chemical analysis was necessary because the testimony of the two officers was sufficient to prove the “weed looking substance” was in fact marijuana. Id. at 221.

In the present case, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana. As long as the officers have the qualifications to identify marijuana by its physical characteristics, like the officers in Boothe, their testimony is sufficient to prove the substance is marijuana. Therefore, no chemical analysis is necessary to prove the substance is marijuana.