Tammy Diane Ryals v. State of Texas ( 2010 )


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  •                                        NO. 07-09-0057-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL A
    FEBRUARY 18, 2010
    ______________________________
    TAMMY DIANE RYALS, APPELLANT
    V.
    STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 223rd DISTRICT COURT OF GRAY COUNTY;
    NO. 7152; HONORABLE LEE WATERS, JUDGE
    _______________________________
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    MEMORANDUM OPINION
    Appellant, Tammy Diane Ryals, was charged by indictment with the third degree
    felony offense of possessing a prohibited substance in a correctional facility.1 A jury
    found her guilty and assessed sentence at three years confinement. By one issue,
    1
    Tex. Penal Code Ann. ' 38.11(d)(1) (Vernon Supp. 2009).
    Appellant contests the legal sufficiency of the evidence to sustain the conviction. We
    affirm.
    Background
    On January 26, 2005, Appellant was being detained in a general holding cell at
    the Gray County jail. While taking holding cell inmates out of the cell one at a time for
    the purpose of allowing them to make telephone calls, Jamie Schlabs, an employee of
    the Gray County Sheriff's Department, was handed a note reading "Tammy Ryals has
    crack." She was also verbally informed that the crack was in a styrofoam cup. Schlabs
    returned the inmate to the holding cell and immediately collected all the styrofoam cups.
    Schlabs testified that as she picked up the cups, Appellant's demeanor changed
    and she became "fidgety." An examination of the cups revealed that one cup contained
    a folded piece of pink paper, which was identified as paperwork coming from Appellant's
    arraignment. Inside that paperwork, Schlabs found a wad of tissue paper, and inside
    that tissue paper she found a white powder, later chemically identified as cocaine.
    When asked what the substance was, Appellant responded that it "was aspirin for her
    teeth." Appellant was subsequently charged and convicted of possessing a prohibited
    substance, to-wit: cocaine, in a correctional facility.
    2
    Standard of Review
    Appellant contends the evidence was legally insufficient to establish that she
    knew the substance was cocaine. Evidence is legally insufficient if, when viewed in a
    light most favorable to the prosecution, any rational trier of fact could not have found
    each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 318, 
    99 S. Ct. 2781
    , 2789, 
    61 L. Ed. 2d 560
    , 573 (1979); Laster v. State, 
    275 S.W.3d 512
    , 517 (Tex.Crim.App. 2009).       This standard is the same in both direct and
    circumstantial evidence cases. 
    Id. 275 S.W.3d
    at 517-18.
    Legal sufficiency of the evidence to sustain a conviction is measured by the
    elements of the offense as defined by a hypothetically correct jury charge. Malik v.
    State, 
    953 S.W.2d 234
    , 239-40 (Tex.Crim.App. 1997). This is done by considering all
    the evidence that was before the juryCwhether proper or improperCso that we can
    make an assessment from the jury's perspective. Miles v. State, 
    918 S.W.2d 511
    , 512
    (Tex.Crim.App. 1996). As an appellate court, we sit as a final, due process safeguard,
    ensuring only the rationality of the factfinder, and we must uphold the jury's verdict
    unless it is found to be irrational or unsupported by more than a Amere modicum@ of
    evidence. Moreno v. State, 
    755 S.W.2d 866
    , 867 (Tex.Crim.App. 1988).
    3
    Analysis
    As per the indictment in this case, the State was required to prove that Appellant
    knowingly or intentionally possessed a controlled substance, namely cocaine, in a
    correctional facility, namely the Gray County Jail. To prove possession, the State was
    required to show that Appellant (1) exercised Aactual care, custody, control, or
    management@ of the substance and (2) knew the matter possessed was contraband.
    See ' 481.002(38). See also Tex. Penal Code Ann. ' 1.07(39) (Vernon Supp. 2009);
    Poindexter v. State, 
    153 S.W.3d 402
    , 405-06 (Tex.Crim.App. 2005).
    Knowledge that the matter possessed was contraband may be inferred from the
    acts, words, or conduct of the accused. Grant v. State, 
    989 S.W.2d 429
    , 433 (Tex.
    App.--Houston [14th Dist.] 1999, no pet.). Links used to establish care, custody, control
    or management of the matter can likewise be used to establish knowledge of the nature
    of the substance.
    When, as here, the accused does not have actual physical possession of the
    controlled substance when seized, it cannot be concluded or presumed that the
    accused had possession over the substance unless there are independent facts or
    circumstances that tend to connect or link2 the accused to the knowing possession of
    the contraband.       Evans v. State, 
    202 S.W.3d 158
    , 161-62 (Tex.Crim.App. 2006).
    Numerous nonexclusive factors have been recognized as contributing to an evaluation
    2
    The Court of Criminal Appeals has recognized that the term "affirmative" adds nothing to the
    plain meaning of "link" and now uses only the word "link" to evaluate evidence of possession. Evans v.
    State, 
    202 S.W.3d 158
    , 161 n.9 (Tex.Crim.App. 2006).
    4
    of whether an accused is linked to the contraband. See Triplett v. State, 
    292 S.W.3d 205
    (Tex.App.--Amarillo 2009, pet. ref'd).     Those factors include: (1) whether the
    contraband was recovered from a place or thing under the control of the accused; (2)
    whether the contraband was conveniently accessible to the accused; (3) whether the
    conduct of the accused indicated consciousness of guilt; and (4) whether the accused
    made any incriminating statements. 
    Id. at 209.
    Here, several factors tended to link Appellant to the knowing care, custody,
    control, or management of the contraband. First, the note and verbal information given
    to Schlabs established that the note-writer was aware the substance was not only
    present, but that it was cocaine. From this evidence, a reasonable factfinder could
    presume that the note-writer learned this information from Appellant. Secondly, the
    contraband was discovered in a styrofoam cup, wrapped in tissue paper, and placed
    inside Appellant's folded-up arraignment papers. The secretion of a substance can be
    circumstantial evidence that the person who placed the substance in that location was
    attempting to avoid its discovery and was, therefore, aware of its illegal nature.
    Furthermore, upon being asked to identify the substance, Appellant acknowledged not
    only consciousness of its presence but also control by stating that it was for her teeth.
    Finally, the fact that Appellant became fidgety is some evidence of her consciousness of
    the illegal nature of the substance.
    5
    Based upon these facts, viewing the evidence in the light most favorable to the
    verdict, we conclude the evidence is legally sufficient to support the jury's implied finding
    that Appellant exercised "actual care, custody, control, or management" of the
    substance and knew the matter possessed was contraband.                Appellant's issue is
    overruled.
    Conclusion
    Accordingly, the trial court's judgment is affirmed.
    Patrick A. Pirtle
    Justice
    Do not publish.
    6
    

Document Info

Docket Number: 07-09-00057-CR

Filed Date: 2/18/2010

Precedential Status: Precedential

Modified Date: 10/16/2015