Jazmin Alyna Andrade v. the State of Texas

• Court: Texas Court of Appeals, 10th District (Waco)
• Decided: June 25, 2026
• Docket: 10-25-00451-CR
• Status: Published

Opinion

Court of Appeals Tenth Appellate District of Texas

10-25-00451-CR

Jazmin Alyna Andrade, Appellant

v.

The State of Texas, Appellee

On appeal from the 13th District Court of Navarro County, Texas Senior Judge H. D. Black Jr., presiding Trial Court Cause No. D43030-CR

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

A jury found Jazmin Alyna Andrade guilty of the offense of possession of

a controlled substance in an amount of less than one gram. See TEX. HEALTH

& SAFETY CODE ANN. § 481.115(b). The trial court assessed her punishment

at twelve months in state jail, but suspended her sentence and placed her on

community supervision for three years. In two issues on appeal, Andrade

asserts that the evidence is legally insufficient to support the jury’s implied rejection of her necessity defense and that the trial court reversibly erred by

failing to inquire under article 42.07 of the Code of Criminal Procedure

whether there existed any reason why sentence should not be pronounced. We

affirm.

Necessity Defense

In her first issue, Andrade contends that the State failed to meet its

burden of persuasion to defeat her necessity defense. We disagree.

STANDARD OF REVIEW AND RELEVANT LAW

Criminal conduct is justified if: (1) the actor reasonably believes the

conduct is immediately necessary to avoid imminent harm; (2) the desirability

and urgency of avoiding the harm clearly outweigh, according to ordinary

standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct; and (3) a legislative purpose to exclude the

justification claimed for the conduct does not otherwise plainly appear. TEX.

PENAL CODE ANN. § 9.22.

After a defendant has introduced some evidence supporting her necessity

defense, the State bears the burden of persuasion to disprove it. See Stefanoff

v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d). This burden,

however, does not require the State to introduce evidence to disprove the

defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). In our

Jazmin Alyna Andrade v. The State of Texas Page 2 review, we must view all the evidence in the light most favorable to the

prosecution and determine (1) whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt and (2)

whether the factfinder could have found against the defendant on the necessity

issue beyond a reasonable doubt. Id. at 914.

RELEVANT FACTS

At trial, law enforcement testimony established that Andrade was pulled

over for travelling 91 miles per hour in a 75 mile per hour zone. When the

officer made contact with Andrade, she smelled the odor of burnt marijuana

coming from the vehicle. Andrade was detained in the back of the police car

while officers performed a probable cause search. During the search, officers

located one baggie containing a pink powdery substance in a white purse in

the front passenger side of the vehicle. In the back passenger floorboard,

officers located a black purse containing two baggies with a white powdery

substance and a partially-smoked “blunt.” Officers also located various drug

paraphernalia and drug-related items in the vehicle, such as cigarillos, a vape

pen, and a stuffed toy that resembled a marijuana joint. Andrade told one of

the officers that “the weed was hers,” but that her ex-boyfriend put the powdery

substances – which she believed to be cocaine – in her purse. According to the

Jazmin Alyna Andrade v. The State of Texas Page 3 testimony and written report of a forensic scientist with the Texas Department

of Public Safety crime lab, all three powdery substances contained ketamine.

Andrade testified in her own defense. She explained that on the night

she was arrested, she was driving from Houston to Dallas to escape her abusive

relationship. Andrande described her ex-boyfriend as controlling and

physically abusive. She testified that she knew her ex-boyfriend used illegal

narcotics, and that he would sometimes force her to carry his narcotics, guns,

and money in her purse. Should she refuse, Andrade testified that her ex-

boyfriend would “manhandle” her. The night she was arrested, Andrade stated

that her ex-boyfriend had threatened her with violence, causing her to flee to

Dallas for her own safety.

On cross-examination, Andrade testified that she had been driving for

approximately three and a half hours before she was pulled over by law

enforcement. Because her ex-boyfriend had access to her location through her

cell phone, she was afraid that he might be following her. She stated that she

did not discard the narcotics at any point during her drive because she “wasn’t

aware” that they were in her purses and that she just “grabbed what [she]

could and then left.” Andrade claimed that her boyfriend had regular access

to her purse even if she was not with him, and that he did not always tell her

when he put narcotics in her purse. When asked why she did not tell the police

Jazmin Alyna Andrade v. The State of Texas Page 4 “this whole story you’re telling the Jury today[,]” Andrade responded, “The

police doesn’t care […] All they care is that it was in my possession and they

found somebody to take to jail.”

At the charge conference, Andrade requested an instruction on necessity.

The State objected, arguing that Andrade failed to meet the confession-and-

avoidance requirement by refusing to unequivocally admit to the culpable

mental state of knowingly possessing the controlled substance. The State also

contended that Andrade failed to present evidence of an immediate danger of

imminent harm. The trial court overruled the State’s objection and included a

necessity instruction in the jury charge.

ANALYSIS

We conclude that a rational factfinder could have found the essential

elements of the offense beyond a reasonable doubt. In this case, the State was

required to prove that Andrade intentionally or knowingly possessed ketamine

in an amount of less than one gram. Three baggies of substances containing

ketamine with a combined weight of 0.68 grams were found inside of two of

Andrade’s purses in the vehicle, along with other drug paraphernalia. She

admitted that she was aware that her ex-boyfriend sometimes stored illegal

narcotics in her purse. The purses contained other items belonging to Andrade,

such as her makeup. Although she claimed she was unaware that those

Jazmin Alyna Andrade v. The State of Texas Page 5 specific substances were in her purses at that time, the jury was free to

disbelieve that testimony.

Viewing the evidence in the appropriate light, we also conclude that the

evidence was sufficient to support the jury’s implied rejection of Andrade’s

necessity defense. Evidence related to Andrade’s necessity defense was

dependent upon the jury’s assessment of her credibility. The factfinder is the

sole judge of the weight and credibility of the evidence and may choose to

disbelieve a witness even when her testimony is uncontroverted. See TEX.

CODE CRIM. PROC. ANN. art. 38.04; Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013); Gibson v. State, 233 S.W.3d 447, 452 (Tex. App.—Waco 2007,

no pet.). When performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). The jury was free to disbelieve any or all of Andrade’s

testimony that she had to possess the ketamine to avoid being abused by her

ex-boyfriend.

Furthermore, the jury could have reasonably found that Andrade failed

to meet the first prong of the necessity defense. Andrade had over three hours

to dispose of the narcotics before she was stopped, during which time she was

physically separated from her ex-boyfriend. This undercuts her claim that

Jazmin Alyna Andrade v. The State of Texas Page 6 possessing the drugs was “immediately necessary” to avoid harm. Moreover,

“imminent” harm means something that is immediate, something that is at the

point of happening and not about to happen. See Pennington v. State, 54

S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref'd). Andrade testified to

a specific fear of violence that prompted her to quickly separate from her ex-

boyfriend. However, any imminence faded with the three-hour passage of time

and physical separation. Additionally, more than a generalized fear of harm

is required. Stefanoff, 78 S.W.3d at 501. While Andrade expressed concern

that her ex-boyfriend could access to her location through her cell phone, she

offered no evidence that he had actually accessed her location, was attempting

to access her location, or was actively following or pursuing her.

We overrule Andrade’s first issue.

Article 42.07 – Code of Criminal Procedure

In her second issue, Andrade asserts that she is entitled to a new

punishment hearing because the trial court failed to inquire pursuant to article

42.07 of the Code of Criminal Procedure whether there was any reason that

sentence should not be pronounced against her. We disagree.

Article 42.07 of the Code of Criminal Procedure, entitled “Reasons to

prevent sentence,” provides as follows:

Jazmin Alyna Andrade v. The State of Texas Page 7 Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:

1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.

2. That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Chapter 46B; and

3. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waived, as to his identity.

TEX. CODE CRIM. PROC. ANN. art. 42.07. A complaint that the trial court failed

to comply with article 42.07 must be preserved for appellate review. See TEX.

R. APP. P. 33.1; Eisen v. State, 40 S.W.3d 628, 636-37 (Tex. App.—Waco 2001,

pet. ref’d). Here, as Andrade acknowledges on appeal, she did not object to the

trial court’s failure to comply with article 42.07 or raise any contention in bar

of sentence prior to pronouncement.

Moreover, Andrade does not claim on appeal that any of the reasons set

out in article 42.07 apply in her case or otherwise explain how she was harmed

by the trial court’s failure. See Reyes v. State, 774 S.W.2d 670, 672 (Tex. App.—

Jazmin Alyna Andrade v. The State of Texas Page 8 Houston [14th Dist.] 1989, no pet.); Hernandez v. State, 628 S.W.2d 145, 147

(Tex. App.—Beaumont 1982, no pet.).

Accordingly, we overrule Andrade’s second issue.

Conclusion

Having overruled all of Andrade’s issues on appeal, we affirm the

judgment of the trial court.

STEVE SMITH Justice

OPINION DELIVERED and FILED: June 25, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CR25

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