11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Andrea LaJuan Hunt

Appellant

Vs.                   No. 11-01-00043-CR B Appeal from Collin County

State of Texas

Appellee

The jury found appellant guilty of possessing less than 5 pounds but more than 4 ounces of marihuana.  The trial court assessed appellant=s punishment at confinement in a state jail facility for one year.  We affirm.

Appellant was riding in the front passenger=s seat of an automobile that was stopped by a police officer.  The officer testified that, when he approached the passenger=s side window, he smelled a strong odor of unburned marihuana.  The driver of the automobile gave the officer consent to search the vehicle.  The officer found a plastic bag containing marihuana under the passenger=s seat.  The sufficiency of the evidence is not challenged. 

In a single point of error, appellant contends that the trial court erred in permitting the jury to smell the marihuana that the officer found in the automobile.  Appellant argues that the trial court violated TEX.R.EVID. 403 because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

At trial, appellant stated in his objection that there had been a substantial change in the marihuana since the date it was taken from the automobile.  Appellant argued that the State had the burden of proving that marihuana does not Again a stronger smell@ as time passes.  Also, appellant urged that the marihuana was not packaged in the same container it was packaged in at the time the officer discovered the marihuana in the car.  Appellant produced no evidence to show that the odor of the marihuana changed while it was stored by the police.  The arresting officer testified that the odor exhibited to the jury and the odor the officer smelled in the car were the same.

When it overruled appellant=s objection, the trial court instructed the jury:

While the officer is opening the bag, members of the jury, there=s not anything before you at this point that suggests that the conditions in this room or that necessarily the odor, if any, attributed to the exhibit would be the same or different as far as there=s no evidence one way or another on those points.

The court in Mann v. State, 718 S.W.2d 741, 744 (Tex.Cr.App. 1986), cert. den=d, 481 U.S. 1007 (1987), stated:

When the balancing test is applied, evidence of the context of the offense is almost always admissible under the reasoning that events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all evidence may be realistically evaluated.  See Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App. 1985)(Clinton, J. concurring); and Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App. 1967).  Rarely will the prejudicial value render inadmissible any evidence that is context of the offense.

See Henry v. State, 828 S.W.2d 312 (Tex.App. - Fort Worth 1992, pet=n ref=d).

We hold that the trial court=s ruling was within the Azone of reasonable disagreement.@  The trial court did not abuse its discretion.  Montgomery v. State, 810 S.W.2d 372, 389-91 (Tex.Cr.App. 1991).  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

October 18, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.^[1]