Candice Marie Myers v. State

NUMBER 13-18-00333-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CANDICE MARIE MYERS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court
of Navarro County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
Appellant Candice Marie Myers appeals her conviction for possession of marijuana
under two ounces, a class B misdemeanor. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.121(b)(1). By two issues, Myers argues that: (1) there was insufficient evidence
that she possessed the marijuana, and (2) the trial court erred when it overruled her
hearsay objection. We affirm.
I. BACKGROUND1
In September 2015, Myers was a passenger in a vehicle when it was pulled over
by Officer Armando Garcia. According to Garcia, he noticed the odor of marijuana as he
approached the car. Garcia radioed for back up and Officer Adrian Ornales responded
to the scene. Inside the vehicle, in a hair-gel container inside a white purse, Garcia found
1.5 grams of marijuana. Myers was charged with possession of marijuana under two
ounces. See id. She pleaded not guilty and proceeded to trial.
At trial, Garcia testified there were multiple bags in the vehicle, including one white
purse. During his cross-examination, the following exchanged occurred:
[Defense Counsel]: Okay. You might check to see if there were, I
don’t know, articles of clothing or any kind of
articles that belong to a certain person because
then you could associate that person with what
you found in the bag; is that correct?
[Garcia]: Yes, sir.
[Defense Counsel]: In this particular case, you didn’t do that, did
you?
[Garcia]: I believe at the end of the stop once the arrest
was made.
[Defense Counsel]: Okay, so you looked in the bag to see if there
was any ID in it?
[Garcia]: No, I got confirmation.
During re-direct, Garcia testified the driver of the car informed him that the white purse
belonged to Myers. Myers objected to the testimony on hearsay grounds. The State
argued that Myers, by eliciting testimony from Garcia as to the ownership of the white
purse, thereby opened the door to the introduction of hearsay testimony from the driver,
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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who was an unavailable witness, as to the ownership of the purse. The trial court
overruled the objection.
Ornelas testified he responded to Garcia’s call for back up. He stated he saw the
passenger in the car place a white purse in the back seat and wipe a “black gel-like
substance” off of her fingers as he approached the car. Ornelas testified the substance
he witnessed Myers wiping off her fingers looked like the gel inside the container in which
the marijuana was found.
Myers testified she was the owner of a black purse located on the front passenger’s
side floorboard and denied that the marijuana and the white purse were hers. Myers
explained that the she, along with driver of the car, and other co-workers, had planned a
weekend trip to Dallas. According to Myers, the day before the trip, a fellow co-worker
dropped off the co-worker’s bag and luggage for the trip in the vehicle which was later
stopped by Garcia, and that everyone but Myers cancelled their plans to attend on the
day of the trip. Myers denied she was wiping black hair gel off her fingers during the
traffic stop and testified she instead was wiping off water she spilled on herself when the
car slowed down. According to Myers, the car did not smell like marijuana but did have
a “funky” smell.
The jury found Myers guilty of the offense, and the trial court assessed punishment
at two years’ community supervision and a $500 fine. This appeal followed.
II. SUFFICIENCY
By her first issue, Myers argues there is insufficient evidence that she possessed
the marijuana.
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A. Applicable Law and Standard of Review
In determining whether the evidence was sufficient to support the conviction, we
must view the evidence in the light most favorable to the State to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The jury
is the sole judge of the credibility of the witnesses and the weight to be given to their
testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Thus,
when the record indicates conflicting inferences, this court must presume that those
inferences were resolved in favor of the State. Wise, 364 S.W.3d at 903. This standard
is the same for both direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
307 (Tex. App.—Corpus Christi–Edinburg 2004, pet. ref’d) (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)). Under a hypothetically correct jury charge, a
person commits the class B misdemeanor offense of possession of marijuana if the
person knowingly or intentionally possesses a usable quantity of marijuana under two
ounces. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1). To prove the
requisite intent to possess, the State had to show that the appellant (1) exercised control,
management, or care over the substance in question and (2) that he or she knew that the
substance was contraband. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016);
see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing non-
exclusive factors that may indicate an “affirmative link” connecting the defendant to the
knowing possession of contraband). Mere presence at the location where drugs are
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found is insufficient, by itself, to establish actual care, custody, or control of those drugs.
Evans, 202 S.W.3d at 162. “However, presence or proximity, when combined with other
evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to establish
that element beyond a reasonable doubt.” Id.
B. Analysis
Myers argues there were insufficient “links” between her and the marijuana. Here,
the marijuana was found in a hair-gel container inside a white purse in a car in which
Myers was a passenger. The marijuana was accessible and within close proximity to
Myers, and there was testimony from Garcia that the car smelled like marijuana. See
Tate, 500 S.W.3d at 414. Ornelas testified he saw Myers place a white purse in the back
seat and wipe a “black gel-like substance” off of her fingers. Ornelas explained that the
substance Myers was wiping off her fingers was consistent with the hair gel inside the
container where the marijuana was found. This evidence supports a conclusion that
Myers exercised care, control, and management over the marijuana. See TEX. HEALTH &
SAFETY CODE ANN. § 481.121(b)(1); Tate, 500 S.W.3d at 413; see also Sutton v. State,
343 S.W.2d 452, 454 (Tex. Crim. App. 1961) (“The duration or length of time the [drugs]
were under appellant’s control would not determine the question of her possession of the
same.”).
Additionally, while Myers denied that the white purse and the marijuana belonged
to her, questions concerning the credibility of witnesses and the weight to be given to their
testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254
(Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence
is introduced, and we assume that the fact finder resolved conflicts in the evidence in
favor of the verdict and must defer to that resolution. Matchett v. State, 941 S.W.2d 922,
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936 (Tex. Crim. App. 1996). Here, the trier of fact was free to disregard Myers’s testimony
and believe Ornelas’s testimony. See Mosley, 983 S.W.2d at 254; Matchett, 941 S.W.2d
at 936. Therefore, viewing the evidence in the light most favorable to the verdict, we
conclude there was sufficient evidence establishing affirmative links between Myers and
the marijuana. See Wise, 364 S.W.3d at 903; Evans, 202 S.W.3d at 162 n.12. We
overrule Myers’s first issue.
III. HEARSAY
By her second issue, Myers argues the trial court erred when it admitted hearsay
testimony from Garcia, which conveyed to the jury the driver’s out-of-court statement to
the officer that the white purse belonged to Myers. The State argues the testimony was
not used to prove Myers possessed the marijuana but rather to show why Garcia did not
attempt to identify the owner of any of the purses or bags through other means.
A. Applicable Law and Standard of Review
Hearsay is an out of court statement offered to prove the truth of the matter
asserted in the statement, and it is inadmissible unless otherwise provided by statute or
the rules of evidence. See TEX. R. EVID. 801(d), 802; Willover v. State, 70 S.W.3d 841,
845 (Tex. Crim. App. 2002). A limited exception to the hearsay rule enables testifying
officers to place their investigative actions into context. See Schaffer v. State, 777 S.W.2d
111, 114 (Tex. Crim. App. 1989). The State may offer out-of-court statements into
evidence without violating the hearsay rule to explain why the defendant became the
subject of an investigation. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.
1995). “An arresting officer should not be put in the false position of seeming just to have
happened upon the scene, he should be allowed some explanation of his presence and
conduct.” Schaffer, 777 S.W.2d at 114–15. Therefore, “testimony by an officer that he
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went to a certain place or performed a certain act in response to generalized ‘information
received’ is normally not considered hearsay because the witness should be allowed to
give some explanation of his [or her] behavior.” Poindexter v. State, 153 S.W.3d 402,
408 n.21 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466
S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015); see Sandoval v. State, 409 S.W.3d 259,
282 (Tex. App.—Austin 2013, no pet.).
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge
abuses his discretion when his decision falls outside the zone of reasonable
disagreement. Id. If the trial court’s evidentiary ruling is correct under any applicable
theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient
reason for the ruling. Id. The erroneous admission of evidence is non-constitutional error.
Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.); see Casey v.
State, 215 S.W.3d 870, 884–85 (Tex. Crim. App. 2007). We disregard any non-
constitutional error as harmless unless the error affected appellant’s substantial rights.
TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).
“We have construed this to mean that an error is reversible only when it has a substantial
and injurious effect or influence in determining the jury’s verdict.” Taylor v. State, 268
S.W.3d 571, 592 (Tex. Crim. App. 2008); see Barshaw, 342 S.W.3d at 93 (noting that an
appellate court “will not overturn a criminal conviction for non-constitutional error if the
appellate court . . . has fair assurance that the error did not influence the jury, or
influenced the jury only slightly”).
In the case of the erroneous admission of evidence, we have said that the
appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, the character of the alleged
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error and how it might be considered in connection with other evidence in
the case, the jury instructions, the State’s theory and any defensive
theories, closing arguments, voir dire, and whether the State emphasized
the error.
Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).
B. Analysis
Assuming, without deciding, that the trial court erred when it admitted the disputed
testimony, we conclude that any error was harmless.
In this case, there was a muted video of the traffic stop introduced into evidence
which showed the events following the traffic stop. As previously noted, there was
testimony from Ornelas that he witnessed Myers place a white purse in the backseat and
that she was wiping a black gel-like substance off of her fingers as he approached the
passenger side of the vehicle. Garcia testified that, after he noticed the smell of marijuana
emanating from the car, he found marijuana inside a container of black-colored hair gel
inside a white purse in the back seat of the car. Ornelas testified that the gel-like
substance in the container appeared to be the same as the one Myers wiped off her
fingers. Myers was one of two individuals in the car, and the marijuana was in close
proximity and within her reach.
Myers’s defensive theory was that she did not touch the white purse, did not have
any gel-like substance on her fingers, and did not know who the owner of the marijuana
was. Myers also denied the car smelled like marijuana. As emphasized in the State’s
closing arguments before the jury, whether Myers was the “owner” of the marijuana or the
purse were not essential to the resolution of the case; instead, the State merely needed
to prove that Myers exercised care, control, and management over it. To do this, the
State relied on Myers’s proximity to the marijuana and Ornelas’s statements that he saw
Myers place the white purse in the back seat and wipe a black gel-like substance off her
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fingers. Likewise, in voir dire, the State emphasized that ownership of the purse or the
marijuana was not essential to the resolution of the case and questioned the jury about
examples distinguishing ownership from possession. The jury charge also did not
mention ownership but instead defined “possession” as “actual care, custody, control, or
management.” Finally, the State did not emphasize in any way the driver’s out of court
statement to Garcia that the purse belonged to Myers.
After reviewing the entire record, we conclude the admission of the complained-of
statement did not have a substantial and injurious effect or influence in the jury’s verdict.
Taylor, 268 S.W.3d at 592; Rich, 160 S.W.3d at 577–78. We overrule Myers’s second
issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of August, 2019.
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