                                       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.




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                                 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).




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                                             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.




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