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“[i]f this Court could not find that one can rea- substance in the toilet (which Lt. Nava and
sonably infer the destruction of a baggie of Agent Carrasco knew was marijuana) would
drugs by passage through a person’s digestive have seen that it was mixed with water and
tract then how can this Court find that mari- human waste.
juana must be destroyed or altered by its pres-
ence in a toilet, even if accompanied by fecal
matter.” Rabb is legally and factually distin- Finally, while Appellant discusses how the
guishable. Rabb is about the destruction, not agents could have collected and tested the
alteration, of physical evidence. Also, while it marijuana, he does not explain how the failure
is true that we said in Rabb that “the State did to do so impacts the legal sufficiency
not present any evidence on the condition of analysis. Just because the agents could have
the baggie or its contents after Appellant swal- collected the marijuana, dried it, and tested
lowed them . . . ,” the tampering in this case it, does not mean that the agents had to collect
did not involve ingesting a bag with marijuana the marijuana, nor does it mean that the
in it or the marijuana passing through the evidence is somehow “less sufficient” because
human alimentary canal. It involved dumping they did not. Lt. Nava testified that they
loose marijuana into a toilet bowl filled with did not collect the marijuana because it was
water and human waste. While not everyone only a usable amount mixed with water and
would have known the substance was marijua- human waste. His reference to only a usable
na, anyone could have seen that whatever was amount was to the fact that the undercover
in the toilet was mixed with water and human drug operation was meant to bust a drug-deal-
waste.
ing enterprise involving crack cocaine and
methamphetamine, not someone with a small
Appellant also contends that, “[t]he State amount of marijuana. We cannot blame Lt.
would have this Court find that it can meet its Nava and his team for choosing not to collect
burden by officers testifying as to what they only a usable amount of loose marijuana
believe they saw and to their lay opinions mixed with water and human waste.
about the condition of evidence,” and he com-
plains that, had the agents collected the sub-
stance, it could have been tested and defini- Having found the evidence legally sufficient to
tively proven to be marijuana. On the one show that the marijuana was altered, we now
hand, it seems like Appellant is arguing that must determine whether it is also sufficient to
Lt. Nava’s and Agent Carrasco’s testimony prove that Appellant is the person who altered
that the substance in the toilet bowl was mari- it. In concluding that the evidence was legally
juana is insufficient and that expert testimony insufficient to prove identity, the court of
is required. We disagree. Lt. Nava and Agent appeals emphasized that (1) there were three
Carrasco had many years’ experience with occupants in the motel room, (2) that each per-
drugs at the Department of Public Safety, as son had opportunity and access to the toilet,
both patrol officers and later and (3) that there was no evidence about how
special agents in the organized crime unit, and long the marijuana had been in the toilet. By
they testified that the substance was this, it appears to have been suggesting that the
marijuana based on their training and experi- evidence is insufficient because it could be
ence. That is legally sufficient. With respect interpreted to support at least four different
to the condition of the substance, as previous- possibilities,
ly explained, any person who saw the
Jan/Feb 2024 www.texaspoliceassociation.com • (512) 458-3140 33
