                                    NO. 07-06-0027-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                 JANUARY 31, 2007
                          ______________________________

                         RUBEN SILVA CASTILLO, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                NO. 2793; HONORABLE GORDON H. GREEN, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       Ruben Silva Castillo appeals his conviction for possession of a controlled substance

in a correctional facility. He assigns error to the trial court’s failure to provide a jury

instruction on voluntary conduct and questions the sufficiency of the evidence supporting

his conviction. We affirm.


       Most of the relevant facts are undisputed. Appellant went to the Parmer County Jail

to visit an inmate. On entering the public area of the jail he presented identification to the

dispatcher who processes visitation requests by, inter alia, checking the visitor’s name
against a list of visitors for the requested inmate and checking for warrants. When the

dispatcher discovered appellant had an outstanding warrant issued in another county, the

dispatcher called the sergeant in charge of the jail for assistance. The sergeant confirmed

appellant was the person named in the warrant and informed appellant he would be

detained in the jail. During a later inventory of appellant’s property in the booking area of

the jail, the sergeant and a correctional officer found two small clear plastic bags containing

methamphetamine in a small coin purse appellant was carrying, resulting in the present

prosecution.


       Appellant was charged in an indictment alleging he “intentionally or knowingly

possess[ed] a controlled substance, namely, methamphetamine, while in a correctional

facility, to-wit: the Parmer County jail.” He was found guilty by a jury and sentenced to two

years confinement and a $10,000 fine.


       Penal Code Section 38.11(d)(1)(B) provides a person commits an offense by

possessing a controlled substance while “in a correctional facility or a secure correctional

facility[.]” Tex. Pen. Code Ann. § 38.11(d)(1(B) (Vernon Supp. 2006). The Penal Code

defines both terms to include a county jail. Tex. Pen. Code Ann. § 1.07(a)(14)(A), (45)(A)

(Vernon Supp. 2006).


       We begin with appellant’s second and third issues, by which he challenges the legal

and factual sufficiency of the evidence he intentionally or knowingly possessed

methamphetamine in the jail. In a legal sufficiency review, an appellate court must assess

all the evidence in the light most favorable to the verdict to determine whether any rational


                                              2
trier of fact could find the essential elements of the crime beyond a reasonable doubt.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005), citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When conducting a factual

sufficiency review, we review the evidence in a neutral light. Zuniga v. State, 144 S.W.3d

477, 484 (Tex.Crim.App. 2004). However, we must be deferential to the jury’s findings and

resist intruding on the fact finder’s role as the sole judge of the weight and credibility of the

evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).


       Each of appellant’s three issues rest on his position the evidence “indicated that [he]

was arrested on a warrant outside the jail facility and brought forcibly into the jail by

deputies.” Based on this characterization of the evidence, appellant argues his presence

in the jail was not voluntary, thus his possession of a controlled substance there also was

not voluntary. We cannot agree with appellant’s characterization of the evidence. If, by

“outside the jail facility,” appellant means outside the building, we disagree with his reading

of the record. No witness testified that appellant left the building between the time he

presented himself at the dispatcher’s window seeking to visit and his arrest. If, by that

phrase, appellant is contending that the lobby or visitation areas of the building are not

parts of the jail or correctional facility for purposes of Penal Code Section 38.11(d)(1)(B),

we again disagree.


       Testimony given by the Parmer County sheriff included his description of the jail.

He indicated the jail is located adjacent to, and about 100 yards north of, the Parmer

County courthouse. He later agreed the jail is “brand new.” Asked about “types of facilities

. . . at the jail” other than the jail cells, he testified, “Well, the jail encompasses the

                                               3
administrative office in the front of the building. Of course, we have visitation areas for the

inmates. We also have where we store our evidence, where we have the various functions

surrounding the jail, their exercise areas and medical. Then we also have a large area on

the south end that we call a sally port, but that’s a big garage area where we bring people

in and out and to secure our vehicles.” The sheriff also responded positively to a question

asking whether the “building itself” is classified as a correctional facility.


       Witnesses sometimes distinguished between the secured1 areas of the building and

the front or lobby area. The sheriff said a visitor “would have to come in through the front

administrative area into the lobby, and that would be pretty much all you could get into

unless we let you in.” The sergeant in charge of the jail testified he considered the

unsecured lobby area in the facility “part of the . . . administration for the sheriff’s office.”

He said the lobby “has two windows. You can actually go to the jail window or you can go

to the secretary’s window.”


       Appellant points to instances in which the sheriff and the correctional officer referred

to appellant’s having been brought “back into” the jail after deputies learned of the

outstanding warrant. In their contexts, we read the statements simply as additional

instances of testimony distinguishing between the “back” secured areas and the front

public or “administrative” area of the building.2 The statements cannot reasonably be




       1
           Testimony also sometimes referred to “controlled” and “uncontrolled” areas.
       2
        The sheriff agreed officers “went out into the visiting area and brought [appellant]
back into the secured area.”

                                               4
viewed as indicating either witness considered appellant to have been outside the jail when

he was arrested.


       The undisputed evidence established appellant was not under arrest when he

entered the jail for the purpose of visiting an inmate. There was no evidence this conduct

was involuntary. See Rogers v. State, 105 S.W.3d 630, 638 (Tex.Crim.App. 2003); Brown

v. State, 89 S.W.3d 630, 633 (Tex.Crim.App. 2002) (both discussing meaning of voluntary

under Penal Code Section 6.01(a)). Appellant’s knowledge of the nature of the substance

may be inferred from his possession of it in the coin purse in his pocket, and from his

reaction to its discovery.3 See Smith v. State, 56 S.W.3d 739, 746 (Tex.App.--Houston

[14th Dist.] 2001, pet. ref’d) (without admission by the accused, due to its subjective nature,

knowledge element of possession offense may be inferred from circumstantial evidence),

citing McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). On this evidence

a rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. See Poindexter, 153 S.W.3d at 405 (stating standard for reviewing legal

sufficiency of evidence).


       With respect to appellant’s factual sufficiency challenge, he cites no evidence in the

record contrary to the jury’s findings that the substance recovered from appellant was

methamphetamine, he knew the nature of that substance, or that he knew he was entering

a correctional facility when he initiated the visitation. The jury’s verdict was not contrary




       3
        One officer testified that, after the methamphetamine was discovered, appellant
was “visibly shaken, a little upset about the situation.”

                                              5
to the great weight and preponderance of the evidence. See Watson v. State, 204 S.W.3d

404, 417 (Tex.Crim.App. 2006). Appellant’s second and third issues are overruled.


       By his first issue, appellant contends the trial court erred by failing to include in the

jury charge on guilt/innocence the definition of “voluntary possession” in accordance with

Penal Code sections 6.01(a) and (b). 4 An instruction on the issue of voluntariness of a

defendant’s conduct can be appropriate. See Rogers, 105 S.W.3d at 638; Brown, 89

S.W.3d at 633. But, as noted, we see no evidence any involuntary act was involved in

appellant’s entry of the jail or his possession of the methamphetamine as he entered it.

In Brown the Court of Criminal Appeals held the possession of a controlled substance by

a person brought to jail after his arrest did not prevent prosecution under section 38.11(b)5

on the basis his conduct was not voluntary. 89 S.W.3d at 633. The differences between

sections 38.11(b) and (d)(1)(B) do not distinguish the holding in Brown. Appellant points

out that in Brown the defendant was instructed to inform the deputy if he possessed any

contraband “before they stepped inside the jail.” 89 S.W.3d at 632. No evidence shows

that appellant was deprived of the opportunity to leave the contraband he was carrying

elsewhere before he stepped inside the jail. We find the trial court did not err by failing to




       4
          Appellant acknowledges that no objection to the omission was raised at trial, so
if it were error, it would require reversal only if it caused appellant harm so egregious as
to deprive him of a fair trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.
1984) (setting forth harm standard).
       5
         Section 38.11(b) provides a person commits an offense if the person takes, inter
alia, a controlled substance “into a correctional facility.” Tex. Pen. Code Ann. § 38.11(b)
(Vernon 2003 & Supp. 2006).

                                               6
include in the charge an instruction regarding the voluntariness of appellant’s possession,

and overrule his first issue.


       Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                James T. Campbell
                                                    Justice



Do not publish.




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