IN THE TENTH COURT OF APPEALS
No. 10-14-00048-CR
GINNIE FAY ROBERTS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 413th District Court Johnson County, Texas Trial Court No. F47843
MEMORANDUM OPINION
Ginnie Roberts appeals from her convictions for the offenses of possession of a
controlled substance with the intent to deliver and for delivery of marihuana to a child.
TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(d), 481.122 (West 2010). Roberts
complains that the evidence was insufficient to establish that she intentionally or
knowingly possessed a controlled substance, was insufficient to establish that she
delivered marihuana to a minor, that she received ineffective assistance of counsel, and that the trial court abused its discretion by admitting a handwritten notebook into
evidence because it constituted hearsay.
Sufficiency of the Evidence
In her first issue, Roberts complains that the evidence was insufficient for the
jury to have determined that Roberts intentionally or knowingly possessed
methamphetamine that was found during a search of a residence where Roberts was
staying. In her second issue, Roberts complains that the evidence was insufficient for
the jury to have found that she delivered marihuana to her daughter because there was
no evidence that Roberts had actually transferred marihuana to her daughter. The
Court of Criminal Appeals has expressed our standard of review of a sufficiency issue
as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
Roberts v. State Page 2 The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at
326. Further, direct and circumstantial evidence are treated equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214
S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the
credibility of witnesses and can choose to believe all, some, or none of the testimony
presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Possession with Intent to Deliver
Roberts complains that the evidence was insufficient for the jury to have found
that she intentionally or knowingly possessed methamphetamine that was found
during a search of a residence where she was staying. To prove unlawful possession of
any controlled substance, "the State must prove that (1) the accused exercised control,
management, or care over the substance; and (2) the accused knew the matter possessed
was contraband." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX.
HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010) ("'Possession' means actual care,
custody, control, or management.").
Roberts v. State Page 3 Possession is not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12.
When the defendant is not in exclusive possession of the place where the controlled
substance is found, then additional, independent facts and circumstances must
affirmatively link the defendant to the substance in such a way that it can reasonably be
concluded that the defendant possessed the substance and had knowledge of it.
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d
14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In other words, the evidence
"must establish, to the requisite level of confidence, that the defendant's connection with
the [contraband] was more than just fortuitous," which may be established by direct or
circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
Several factors may help to establish a link between the defendant and the
contraband, including (1) the defendant's presence when a search is conducted; (2)
whether the substance was in plain view; (3) the defendant's proximity to and the
accessibility of the substance; (4) whether the defendant was under the influence of
narcotics when arrested; (5) whether the defendant possessed other contraband or
narcotics when arrested; (6) whether the defendant made incriminating statements
when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant owned or
had the right to possess the place where the substance was found; (12) whether the
Roberts v. State Page 4 place where the substance was found was enclosed; (13) whether the defendant was
found with a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12.
Not all of these factors must be proved; rather, it is the cumulative logical force
the factors have in proving possession that we must consider. See James v. State, 264
S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Additionally, the
absence of some of the factors is not evidence of innocence that must be weighed
against the factors that are present. Id. Rather, they are used to assess the sufficiency of
the evidence linking the defendant to the knowing possession of contraband. See, e.g.,
Roberson v. State, 80 S.W.3d 730, 735-36 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd);
Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no pet.) (explaining
that presence or absence of factors "aid appellate courts in determining the legal
sufficiency of the evidence in knowing possession of contraband cases").
Facts
Roberts's daughter, C.R., had recently come to live with her mother. C.R.
informed a counselor at the school that she was attending that she was concerned for
her mother who was using methamphetamine. The counselor made a report to the
Department of Family and Protective Services, who sent an investigator to speak with
C.R. at her school. C.R. told the investigator that she and her mother were living with
her mother's boyfriend, David McKinney, and that her mother had given C.R.
Roberts v. State Page 5 marihuana to smoke and had smoked it with her. The investigator contacted the drug
task force in Johnson County to assist her in visiting the home.
Two officers accompanied the investigator to the residence of McKinney.
McKinney answered the door and allowed them to come into the residence; however,
he asked them to leave when they asked if they could search the residence for
controlled substances because he was afraid they would find marihuana. The officers
instigated the process of procuring a warrant to search the residence. During this time,
no one was allowed in the house. McKinney asked if he could leave and was allowed to
leave the premises.
An individual later identified as Wayne Gorman was residing in a camper
behind McKinney's home. When the officers initiated contact with Gorman, he gave the
officers a false name. While the officers were running a search on the name Gorman
had given them, a vehicle with Roberts, C.R., and another female arrived at the
residence. Roberts advised one of the officers that Gorman's first name was Waylon but
she did not know his last name. The officer asked for and received permission to search
Roberts's purse, which contained Gorman's driver's license, but no marihuana or
controlled substances. The officer then asked Roberts if drugs would be found in the
search of the house, and Roberts admitted that marihuana and maybe
methamphetamine would be found in the master bedroom.
Roberts v. State Page 6 At some point, the investigator for the Department spoke with Roberts and asked
her whether she knew about C.R.'s marihuana use and if Roberts had provided the
marihuana to C.R. Roberts admitted that she had given C.R. marihuana for anxiety.
When asked if methamphetamine would be found in the search, Roberts stated that she
did not think so. Ultimately, Roberts was allowed to leave the scene, but C.R. remained
and was later placed into foster care.
When the residence was searched, officers found a small chest on top of a table in
the master bedroom which contained 4.15 grams of methamphetamine, cash, scales, and
baggies. The officers located a pink notebook that allegedly contained a ledger of drug
sales next to the chest. C.R. identified the notebook as belonging to Roberts and that it
contained Robert's handwriting. Another baggie containing .19 grams of
methamphetamine was found in a dresser drawer that contained women's
undergarments that C.R. identified as her mother's clothing. That dresser also had a
framed picture of C.R. on top of it. A meth pipe which C.R. said her mother used to
smoke methamphetamine was found on top of a woman's jacket in the bedroom as
well.
C.R. testified that she told the counselor of her mother's methamphetamine use
because she was afraid for her. C.R. testified that the chest and notebook belonged to
her mother and that she had observed her mother selling methamphetamine on more
than one occasion and had seen her write in the notebook. C.R. had seen her mother
Roberts v. State Page 7 getting methamphetamine out of the chest and putting money into it. C.R. and her
mother were both residing at McKinney's residence and her mother slept in the master
bedroom with McKinney.
The pink notebook had a post-it note attached inside the front cover with
Roberts's name on it. A latent fingerprint was found inside the notebook that an expert
testified was "highly probable" to be Roberts's, but was not that of McKinney or
Gorman. Inside the notebook the entries "amount," "cash," "fronts," "balance," and
"balance with bag" were handwritten which an officer testified were commonly used
terms in drug transactions.
C.R. also testified that her mother gave her marihuana because she did not want
C.R. to get it from other sources that might contain other drugs. C.R. stated that she
and her mother smoked it together, and she knew it was marihuana by its taste and
smell, as well as from seeing pictures of it online.
Analysis
Roberts argues that there was insufficient evidence to show that she intentionally
or knowingly possessed the methamphetamine that was found in the house and was
insufficient to link her to the methamphetamine. However, viewing the record in the
light most favorable to the judgment, the evidence showed that C.R. identified the chest
containing the methamphetamine as belonging to Roberts, testified that she had
observed Roberts using the chest for drug transactions, and knew that the notebook
Roberts v. State Page 8 belonged to Roberts because she saw Roberts in possession of it regularly and saw her
mother write in it. The jury had the ability to decide whether it believed some, all, or
none of the witnesses' testimony, especially that of C.R., regarding Roberts's possession
of the methamphetamine. Using the appropriate factors as set forth in Evans, we find
that there was a sufficient link between Roberts and the methamphetamine found in the
house and the evidence was sufficient for the jury to have found that Roberts
intentionally or knowingly possessed the methamphetamine. We overrule issue one.
Delivery of Marihuana to a Child
Roberts complains that the evidence was insufficient for the jury to have found
that she delivered marihuana to a child because there was insufficient evidence that any
substance given to C.R. was in fact marihuana. Roberts argues that this is because no
marihuana was found during the search of Roberts's purse or the residence, no
marihuana was admitted into evidence, and no testimony was given by a chemist
identifying any substance as marihuana. Roberts argues that the only evidence of
delivery of marihuana to a child came from C.R. and C.R. was not qualified to identify
any substance she received from her mother as being marihuana.
Roberts also argues that C.R.'s testimony was the only evidence of delivery of
marihuana and that the evidence presented to attempt to attack C.R.'s credibility should
establish that no rational juror should have found Roberts guilty beyond a reasonable
doubt. However, Roberts does not mention the testimony from the Department's
Roberts v. State Page 9 investigator that Roberts admitted to giving marihuana to C.R. to help with her anxiety.
The witness's testimony that Roberts said she gave marihuana to C.R. is direct evidence
of that fact. See Hernandez v. State, 698 S.W.2d 679, 680 (Tex. Crim. App. 1985) (citing
Bright v. State, 556 S.W.2d 317 (Tex. Crim. App. 1977); Stein v. State, 514 S.W.2d 927, 933-
934 (Tex. Crim. App. 1974).
Further, as discussed in Roberts's first issue, it was the jury's province to
determine the credibility of C.R., and whether to believe some, all, or none of her
testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). C.R.
testified that she was familiar with the sight, smell, and taste of marihuana from prior
experience. Viewing the evidence is the light most favorable to the judgment, we find
that the evidence was sufficient for the jury to have found Roberts guilty of the delivery
of marihuana to a child. We overrule issue two.
Ineffective Assistance of Counsel
In her third issue, Roberts complains that she received ineffective assistance of
counsel because her trial counsel agreed to stipulate to the lab reports that indicated
that the substance found at the residence was methamphetamine. The State's expert
witness was unavailable to testify at trial. In order to prevail on a claim of ineffective
assistance of counsel, Roberts must meet the two-pronged test established by the U.S.
Supreme Court in Strickland that (1) counsel's representation fell below an objective
standard of reasonableness, and (2) the deficient performance prejudiced the defense.
Roberts v. State Page 10 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Unless she can prove both prongs,
an appellate court must not find counsel's representation to be ineffective. Lopez, 343
S.W.3d at 142. In order to satisfy the first prong, Roberts must prove by a
preponderance of the evidence that trial counsel's performance fell below an objective
standard of reasonableness under the prevailing professional norms. Id. To prove
prejudice, Roberts must show that there is a reasonable probability, or a probability
sufficient to undermine confidence in the outcome, that the result of the proceeding
would have been different. Id.
An appellate court must make a "strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance." Id. (quoting Robertson
v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of
counsel are generally not successful on direct appeal and are more appropriately urged
in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,
77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually
inadequately developed and "cannot adequately reflect the failings of trial counsel" for
an appellate court "to fairly evaluate the merits of such a serious allegation." Id. (quoting
Bone, 77 S.W.3d at 833).
Roberts did not file a motion for new trial on the basis of ineffective assistance of
counsel and the record is silent as to any potential strategy by her trial counsel as to
Roberts v. State Page 11 why he entered into an agreement with the State to stipulate to the reports. In this case,
Roberts did not attempt to deny that the substance found in the residence was in fact
methamphetamine, but sought to show that C.R.'s testimony was false in an attempt to
distance Roberts from knowledge and possession of the methamphetamine.
Nevertheless, the record is silent as to any specific strategy by Roberts's trial counsel
and we will not speculate as to trial counsel's strategy. Because Roberts has not met her
burden to establish the first prong in Strickland, we overrule her third issue.
Admission of Evidence
Roberts complains that the trial court abused its discretion in admitting the
notebook that was found next to the chest with the majority of the methamphetamine
because it constituted hearsay. We review a trial court's decision to admit evidence
under an abuse of discretion standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim.
App. 2005). We will uphold the trial court's ruling if it is "reasonably supported by the
record and is correct under any theory of law applicable to the case." Id.
Hearsay is a "statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX.
R. EVID. 801(d). A party's own statements, however, are not hearsay. TEX. R. EVID.
801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) (Rule of
evidence 801(e)(2)(A) "plainly and unequivocally states that a criminal defendant's own
statements, when being offered against him, are not hearsay."). A party's own
Roberts v. State Page 12 statements "are admissible on the logic that a party is estopped from challenging the
fundamental reliability or trustworthiness of his own statements." Trevino, 991 S.W.2d
at 853. Additionally, "party admissions, unlike statements against interest, need not be
against the interests of the party when made; in order to be admissible, the admission
need only be offered as evidence against the party." Id.
C.R. testified that she had seen Roberts writing in the notebook and was familiar
with her handwriting. C.R. testified that the columns and other writings that an officer
testified contained terms commonly associated with the sale of controlled substances
were in Roberts's handwriting. The notebook was offered to establish that Roberts was
involved in the delivery of methamphetamine prior to the search, and to aid in
affirmatively linking Roberts to the methamphetamine discovered during the search.
As such, the notebook did not constitute hearsay. We overrule issue four.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed January 8, 2015 Do not publish [CRPM]
Roberts v. State Page 13