Tamara Jean Brown v. State ( 2004 )

  NUMBER 13-03-365-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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TAMARA JEAN BROWN,                                                   Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 24th District Court

of Victoria County, Texas.

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MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

      Appellant, Tamara Jean Brown, appeals from her conviction for possession of cocaine. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). Following a jury trial, appellant was sentenced to seven years imprisonment. The trial court has certified that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By one point of error, appellant contends the evidence is legally and factually insufficient to prove her guilt beyond a reasonable doubt. We affirm.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.  

II. LEGAL SUFFICIENCY

         Appellant argues that the evidence is legally insufficient to support her conviction. In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A jury, “as the sole judge of the weight and credibility of the evidence,” is free to accept or reject any evidence“ even if that evidence was uncontradicted.” Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (citing Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981)). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.

         On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Poindexter v. State, 115 S.W.3d 295, 298 (Tex. App.–Corpus Christi 2003, pet. denied). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).   

         Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury, acting as a rational trier of fact, could have found beyond a reasonable doubt that appellant was in unlawful possession of a controlled substance. We hold the evidence is legally sufficient to support appellant’s conviction.

III. FACTUAL SUFFICIENCY

         Appellant also argues that the evidence is factually insufficient to support her conviction. In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.” Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. In our factual sufficiency review, we are again required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref'd).   

           After reviewing all the evidence, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination nor is the proof of guilt greatly outweighed by contrary evidence. See Swearingen, 101 S.W.3d at 97. We hold the evidence is factually sufficient to support appellant’s conviction. Appellant’s sole point of error is overruled.IV. CONCLUSIONAccordingly, the judgment of the trial court is affirmed.  

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 22nd day of July, 2004.