

Opinion issued
March 10, 2011 

In The
Court of Appeals
For The
First District of Texas
————————————
No. 01-09-00134-CR
————————————
SHIRLEY JEAN WOODARD, Appellant
V.
THE
STATE OF TEXAS, Appellee

 

 
On Appeal from the 506th
District Court
Waller County, Texas

Trial Court Cause No. 12971
 

 
O P I N I O N
Appellant, Shirley Jean Woodard, was convicted of the
offense of possession of a controlled substance in an amount less than a gram
(Count I), see Tex. Penal Code Ann. § 38.11(d)(1)
(West Supp. 2010) and the offense of possession of a controlled substance while
in a correctional facility (Count II), see
Tex. Health & Safety
Code Ann. § 481.115(a)–(b) (West
2010).  Appellant appealed both
convictions to this Court.  Appellant’s
appeal of her conviction for Count I was assigned appellate cause number
01-09-00133-CR, and appellant’s appeal of her conviction for Count II was
assigned appellate cause number 01-09-00134-CR. 
On December 9, 2010, we issued a single opinion as to both appellate
cause numbers, but we issued separate judgments.  We affirmed appellant’s conviction for Count
I in appellate cause number 01-09-00133-CR, but we reversed appellant’s
conviction for Count II in appellate cause number 01-09-00134-CR.
Neither party filed a motion for rehearing in either
appellate cause number. Appellant did not file a petition for discretionary
review of our opinion and judgment affirming her conviction for Count I in
appellate cause number 01-09-00133-CR. 
On February 17, 2011, we issued mandate in appellate cause number
01-09-00133-CR.
On January 10, 2011, the State filed a petition for
discretionary review of our opinion and judgment in appellate cause number
01-09-00134-CR reversing appellant’s conviction for Count II.  In its petition, the State cited to new authority
that had not been presented in its original brief with this Court.  We have the authority to withdraw our
previous opinion and replace it with a modified opinion pursuant to Rule 50 of
the Texas Rules of Appellate Procedure.  See Tex.
R. App. P. 50.  Accordingly, under
Texas Rule of Appellate Procedure 50, we withdraw only the portion of our
December 9, 2010 opinion concerning appellate cause number 01-09-00134-CR,
which pertained to appellant’s conviction for Count II (possession of a
controlled substance while in a correctional facility), and we substitute this
opinion as the sole opinion for appellate cause number 01-09-00134-CR.  Also, we withdraw our December 9, 2010
judgment in appellate cause number 01-09-00134-CR, and we replace it with this judgment.[1]

In appellate cause number 01-09-00134-CR, appellant
appeals a judgment convicting her for possession of a controlled substance
while in a correctional facility (Count II). 
See Tex. Penal Code Ann. § 38.11(d)(1) (West Supp. 2010).  In her sole issue concerning this
appeal, appellant challenges the legal sufficiency of the evidence to establish
possession of a controlled substance while in a correctional facility.  We conclude that the evidence is insufficient
with respect to Count II.  We reverse the
judgment in appellate cause number 01-09-00134-CR and render a judgment of
acquittal on the charge of possession of a controlled substance while in a
correctional facility.
Background
          In September 2007,
an unknown person called the Hempstead Police Department to report a
disturbance in progress at a local residence. 
Officer O’Brien went to the residence where he met appellant and Lincoln
Hanks who were arguing with each other. 
Hanks told the officer he was appellant’s common-law husband.  Hanks had a wounded lip and a cut on the
right side of his face, injuries consistent with his having sustained an
assault.  Appellant, who was very upset
with Hanks, bore no sign of injury. 
Officer O’Brien informed appellant that she was under arrest for
domestic violence.         
Officer O’Brien transported appellant to
the Waller County Sheriff’s Department Jail. 
Appellant’s purse was transported with appellant from her house to the
jail. Officer O’Brien asked appellant if she had any contraband on herself or
her person.  Appellant answered,
“No.”  
As part of the
booking process, Officer O’Brien began to fill out an inventory of appellant’s
possessions.  The purpose of the
inventory was to account for the inmate’s valuables held by the jail.  The inventory sheet signed by the inmate
acknowledges that all the property is there before the property is secured at
the jail.   Appellant’s possessions
included her clothing and her purse.[2]  Appellant could not carry the purse inside
the jail because she was handcuffed.[3]  The testimony at trial was that Officer
O’Brien had possession of the purse when he brought appellant into the jail[4] and would later transfer
possession of it to the jail staff to hold during her incarceration.[5]  
When a person “comes to the jail” with
property, the property goes into a property bag for storage and she “don’t
[sic] have access to it without someone else being present or seeing an
inventory sheet or anything like that.” 
The testimony at trial was that the person may have access to that
property only if it is prescription medication. [6]
          While taking
inventory of the contents of appellant’s purse, Officer O’Brien found a small,
black notebook.  Inside the notebook, he
found a compartment housing a clear bag containing a white powder, which he
believed to be cocaine.  Upon this
discovery, appellant denied that the bag and its contents were hers.  Later chemical analysis confirmed that the
powder contained cocaine.  
          At trial,
appellant, who has been diagnosed as having bipolar disorder, testified that
she constantly picks up and keeps in her purse anything on the ground that
catches her eye, including things she does not use.  Appellant explained that she does not think
about what she is doing when she picks things up and that, on this particular
occasion, did not consider whether the bag might have contained cocaine.  Appellant testified that she has never used
powder cocaine but that she previously had a drug problem with crack cocaine.  Appellant testified that she quit smoking
crack cocaine about a year prior to trial, which was approximately five months
after her arrest.
          Deputy Young, a
narcotics agent familiar with street drug practices, testified that the bag
contained about three doses of cocaine, which could be smoked, injected, or
inhaled.  He also testified that, in his
experiences, the typical user of cocaine usually would not throw away three
doses.
          The grand jury of
Waller County indicted appellant on two counts. 
Count I charged that appellant “intentionally or knowingly possess[ed] a
controlled substance, namely, cocaine, in an amount of less than a gram.”  Count II charged that appellant
“intentionally or knowingly possess[ed] a controlled substance, namely,
cocaine, while in a correctional facility, to-wit:  Waller County Jail.”  Appellant pleaded not guilty and proceeded to
a jury trial.  The jury found appellant
guilty on both counts and assessed punishment for Court I at 180 days in a
state jail facility of the Texas Department of Criminal Justice and punishment
for Count II at four years imprisonment in the Institutional Division of the
Texas Department of Criminal Justice and a $500 fine.
Sufficiency of the Evidence
          Premised on two different periods of
time during the same day, appellant was charged with two counts of possession of
the same cocaine found in her purse.  First,
she was charged with possession of cocaine weighing less than a gram based the
period of time during which she possessed her purse at her house prior to her
arrest.  We have upheld that conviction
in Cause No. 01-09-00133-CR (relating to Count I) in the portion of the
December 9, 2010 opinion that remains intact, concerning that appeal and its
accompanying judgment.  Second, she was charged with possession of the same cocaine
while in a correctional facility based on the period of time during which she
was being booked into the Waller County Jail with her purse.  This conviction in Count II only is the
subject of this opinion.  
A.      Standard of Review
An appellate
court reviews legal
and factual sufficiency challenges using the same standard of review.  Green
v. State, No. PD-1685-10, 2011 WL 303818, at *1 (Tex. Crim. App. Jan. 26,
2011) (not designated for publication); Ervin v. State, No. 01-10-00054-CR, --- S.W.3d ---, 2010 WL
4619329, at *2–4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, pet. denied)
(construing majority holding of Brooks v. State, 323 S.W. 3d 893,
894, 913 (Tex. Crim. App. 2010)).  Under this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in
the light most favorable to the verdict, no rational factfinder could have
found that each essential element of the charged offense was proven beyond a
reasonable doubt.  See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S.
Ct. 1068, 1071 (1970); Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams
v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007).  Viewed in the light
most favorable to the verdict, the evidence is insufficient under this standard
in two circumstances:  (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense; or (2) the evidence conclusively establishes a
reasonable doubt.  See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786,
2789 & n.11; Laster, 275 S.W.3d at
518; Williams, 235 S.W.3d at
750.  Additionally, the evidence is
insufficient as a matter of law if the acts alleged do not constitute the
criminal offense charged.  Williams, 235 S.W.3d at 750.
If
an appellate court finds the evidence insufficient under this standard, it must
reverse the judgment and enter an order of acquittal.  See
Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).  An
appellate court determines whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed in
the light most favorable to the verdict. 
Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16–17
(Tex. Crim. App. 2007)).  In viewing the
record, 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.  Id. (citing Hooper, 214
S.W.3d at 13).  An
appellate court presumes that the factfinder resolved any conflicting
inferences in favor of the verdict and defers to that resolution.  See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. 
An appellate court also defers
to the factfinder’s evaluation of the credibility of the evidence and weight to
give the evidence.  See Williams,
235 S.W.3d at 750.
B.      Analysis  
          A
person commits an offense if she possesses a controlled substance while in a
correctional facility or while on property owned, used, or controlled by a
correctional facility.  Tex. Penal Code Ann. §
38.11(d)(1).  A county jail is a
“correctional facility.”  Id. §§ 1.07(a)(14)(A) (West Supp.
2010).  A person possesses an object if
she has actual care, custody, control, or management of that object.  Tex.
Penal Code Ann. § 1.07(a)(39). 
Because the penal code does not define “actual care, custody, control,
or management,” we refer to the rules of grammar and common usage to construe
the terms.  Tex. Penal Code Ann. § 1.05(b);  Tex.
Gov’t Code § 311.011(a), (b). 

Viewing the evidence in a light most favorable to the jury’s
verdict, the evidence shows
·             
appellant
knew about and owned the cocaine that was in her purse; 
 
·             
appellant
carried the purse from her house to the patrol car;
 
·             
because
appellant was handcuffed before she entered the jail, the officer carried the
purse into the jail;
 
·             
the
officer had actual care and custody of the purse while it was in the jail; and
 
·             
the
officer inventoried the contents of the purse in appellant’s presence.
 
To determine whether the evidence is sufficient to establish
appellant’s guilt for this offense, we address whether, while in a correctional
facility, she had (1) actual care or custody of the cocaine, (2) control or
management of the cocaine, and (3) joint possession of the cocaine.
1.                
Actual
Care or Custody
As Deputy Young testified, when a
person, such as appellant, is brought into the booking area, she is in police
custody, and the officer, not the person in custody, has actual care and
custody of the property that is inventoried and stored.  The State concedes that the record fails to
show that appellant had actual care or custody of the cocaine while she was in
the correctional facility.   
2.       Control or Management
The State suggests appellant maintained
control or management of the cocaine in her purse while she was in the
jail.  “Control” means to exercise
authority over, direct, or command.  Webster’s New Twentieth Century Dictionary
398 (2nd ed. 1983).  “Manage” means to
direct or conduct, “to get (a person) to do what one wishes, especially by
skill, tact, flattery, etc.,” or “to bring about by contriving.”  Id.
at 1093.  The State contends appellant’s
control and management of the purse is shown (a) by appellant’s decision to
bring the purse to the jail, (b) by her having a greater right to possess the
purse than the officers when she was at the intake part of the jail, and (c) by
her ownership of the cocaine.
a.                
Decision
to Bring Purse
The State does not deny that
appellant was handcuffed before she was brought into the jail and that Officer
O’Brien transferred her purse with her to the jail, but asserts that appellant
exercised control over the purse while at the jail.  The State’s purported evidence of appellant’s
control over the purse at the jail is Officer O’Brien’s testimony that he did
not ask appellant to bring the purse with her. 
That testimony, however, is not evidence that appellant asked Officer
O’Brien to bring her purse to the jail.  Rather,
that evidence shows merely that appellant alone made the decision, when she was
still at her house, to bring the purse. 
Appellant’s lone decision when she was at her house to bring her purse
with her is no evidence that she exercised control or management over the purse
after Officer O’Brien carried it into the jail. 
Appellant’s exercise of control and custody over the purse prior to her
arrival at the jail does not satisfy the State’s burden of proof as to
possession after her arrival at the jail. 
Contrary to the State’s argument, the element for this offense is not
whether appellant had “a plan . . . to retain control and management of her
cocaine while in jail” but, rather, whether appellant actually had control or
management of the cocaine while at the jail.
 
b.               
Greater
Right to Possession
The State’s petition for review
raises a new assertion that “the only question is who controlled the presence
of the drugs in the jail prior to the inventory[,]” explaining that the jailers
did not have a greater right of possession of the cocaine until it was
discovered at the jail and that while appellant was in the intake part of the
jail, she merely had a diminished expectation of privacy but retained control
and management of the purse.  No evidence
supports this suggestion.  The record
contains no discussion concerning an inmate’s expectation of privacy at the
intake part of the jail, and the evidence in the record is that appellant had
no right to the purse at all while she was in the jail.  Deputy Young expressly testified that
appellant was not allowed to have access to the purse and that the officer and
jail would maintain possession of the purse while it was stored at the jail.  
At most, there is evidence that
appellant had a right to be present when the purse was inventoried by the
police and to sign a sheet acknowledging the contents.  Nothing in the record shows appellant could
have controlled or managed what the officers did with the purse during the
period of time when it was at the intake part of the jail.  On this record, the most appellant could do
was acknowledge that the property belonged to her; she could not control the
property nor manage it in any way.  The
evidence is that the property was controlled and managed by the officers in
accordance with their inventory procedures for handling property.   
c.                 
Constructive
Possession
Control may be shown by constructive possession.  Porter
v. State, 873 S.W.2d 729, 734-35 (Tex. App.—Dallas 1994, writ denied) (citing
McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985); Sewell v. State,
578 S.W.2d 131, 135 (Tex. Crim. App. 1979)); see also Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App.
2005) (stating, “The mere fact that a person other than the accused might have
joint possession of the premises does not require the State to prove that the
defendant had sole possession of the
contraband, only that there are affirmative links between the defendant and the
drugs such that he, too, knew of the drugs and constructively possessed them.”)
(emphasis in original).  
In Porter,
the Dallas Court of Appeals determined that Porter had possession of the cocaine because the
evidence established that, although Porter had not yet taken physical
possession of the cocaine, he had just purchased the cocaine and thus had
“constructive possession” of the cocaine. 
Porter, 873 S.W. 2d at
734.  The Porter court discussed the concept of constructive possession:
Although “constructive possession” has not
specifically been defined under Texas law, the Court of Criminal Appeals
clearly has distinguished it from actual possession of contraband on one’s
person.  The term has also been defined
by the federal courts.  The Fifth
Circuit, for example, defines “constructive possession” to mean the knowing
exercise of, or knowing power to exercise, dominion and control over
contraband.  United States v. DeLeon, 641 F.2d 330, 335 (5th Cir. 1981); United States v. Aleman, 592 F.2d 881,
884 (5th Cir. 1979).  The Fifth Circuit
also recognizes that “constructive possession” may be established by showing ownership, dominion or control over
contraband.  United States v. Moreno, 649 F.2d 309, 312 (5th Cir. 1981).  Thus, under the federal definition, a
defendant may be guilty of possession although he is not exercising actual
physical dominion over contraband at the time of his arrest.  As long as he has actual ownership of contraband or a power to exercise control over
contraband, he will be in constructive possession of contraband.
 
Id. (emphasis added).  
The Porter court,
therefore, described a federal court as equating ownership with power to
exercise control.  The Porter court concluded that Porter’s
payment of money for the cocaine was some evidence that ownership had passed to
Porter at the time of the arrest and, “[a]t the very least, Porter had the power to exercise control over a rock
[of cocaine].”  Id. at 735 (emphasis in original). 
We find this case distinguishable from Porter because there was no evidence that, while in the jail,
appellant “had the power to exercise
control over” the cocaine.  Id. (emphasis in original).  Thus, while the evidence in Porter tended to establish that control
of the cocaine was vested with Porter based on his having purchased it, the
evidence here does not tend to establish that control of the cocaine was vested
with appellant while she was in the jail because, regardless of whether she
owned it, she had no power over it. 
Although the circumstance of ownership could show power to exercise
control, here it does not because the record conclusively shows appellant had
no power over the purse when it was in the jail. 
3.       Joint
Possession
Possession of contraband need not be exclusive and
evidence that shows the accused jointly possessed the contraband with another
is sufficient.  McGoldrick, 682 S.W.2d at 578; Rodriguez
v. State, 635 S.W.2d 552, 553 (Tex. Crim. App. 1982).  “[W]hen the theory of prosecution is that the
accused or another acted together in possessing a narcotic drug, the evidence
must affirmatively link the accused
to the contraband in such a manner that it can be concluded that he had
knowledge of the contraband as well as control over it.”  Martin
v. State, 753 S.W.2d 384, 385 (Tex. Crim. App. 1988) (emphasis in
original).  The issue in this appeal is
not whether appellant had knowledge of the contraband in her purse but,
instead, whether she had care, custody, control or management over it.  A traditional analysis of affirmative links,
therefore, is of limited assistance in analyzing this case because that
analysis tends to focus on a defendant’s knowledge of the contraband.[7]

          The State’s petition for review
contends for the first time that this is a joint possession situation “resolved
by cases where one person’s physical possession is at the behest of, or in
cooperation with, another.”  The
record does not support this characterization. 
There is no evidence in the record tending to show that Officer O’Brien
took possession of the purse at the behest of appellant or in cooperation with
her.  The only testimony on this issue is
Officer O’Brien’s testimony that he did not ask her to bring the purse to the
jail.   
This Court is aware of situations where
jails allow inmates to release their property to a third party, but this case
does not present such a situation.  A decision by an
inmate concerning whether and to whom to grant possession of the inmate’s
property may be consistent with control or management over the property.  Here, however, the record is silent as to
whether appellant had any ability to control what happened to her property at
the jail or any right to request that the property be given to any particular
individual.  The only evidence in this
record is that the police and personnel alone controlled and managed the purse
from the time it entered the jail. 
Although it appears that the State could possibly prove possession under
circumstances similar to those present here, the State did not meet its
evidentiary burden with respect to actual custody, care, control or management
based on the sparse record in this case.
This case is factually distinguishable from other
Texas cases upholding convictions for illegal possession of a controlled
substance or contraband item in the jail. 
In those cases and unlike here, there was some evidence that the
defendant maintained some care, custody, control, or management of the
contraband.  See e.g., Short v. State,
995 S.W.2d 948, 950–52 (Tex. App.—Fort Worth 1999, pet. ref’d) (evidence
legally sufficient to support attempted delivery of controlled substance to
inmate where defendant, former probationary officer, had two fake marijuana
cigarettes in her pocket); Castillo v.
State, No. 07-06-0027-CR, 2007 WL 270425, at *1–2 (Tex. App.—Amarillo Jan.
31, 2007, pet. ref’d) (not designated for publication) (finding evidence
sufficient where defendant possessed drugs in coin purse in his pocket while in
jail visitor area).  
Although it could have rationally determined that appellant
knew about the cocaine in her purse that came with her when she was arrested
and placed in the patrol car, we conclude, viewing the evidence in the light
most favorable to the verdict, that the jury could not have
rationally determined beyond a reasonable doubt that appellant exercised care,
custody, control, or management over the cocaine in the purse during the period
of time when she was in the booking area of the Waller County Jail.  See Ervin, 2010 WL 4619329, at *3.  Accordingly, we hold that the evidence
is insufficient to sustain appellant’s conviction for possession of a controlled
substance in a correctional facility.
          We
sustain appellant’s sole issue in this appeal.
Conclusion
          We
reverse the judgment of the trial court and render a judgment of acquittal with
respect to Count II, possession of a controlled substance while in a
correctional facility (appellate cause number 01-09-00134-CR).
 
 
                                                                   Elsa
Alcala
                                                                   Justice

 
Panel consists of Justices Jennings, Alcala, and Sharp.
 
Publish.  Tex.
R. App. P. 47.2(b).
 




[1]
              Because
no petition for review was filed with respect to Cause No. 01-09-00133-CR
(relating to Count I), we have no jurisdiction to modify the judgment or
mandate issued in that case and have not done so.  See Tex. R. App. P. 19.1.  Furthermore, because we no longer have
plenary power over the appeal in Cause No. 01-09-00133-CR, we have left the
December 9, 2010 opinion intact as it relates to that appeal.  This opinion only substitutes for the portion
of the December 9, 2010 opinion that pertained to Cause No. 01-09-00134-CR
(relating to Count II).  We also order
that the prior opinion in Cause No. 01-09-00133-CR, not be published.  See Tex. R. App. P. 47.2(b).


[2]               The
record shows the following:
 
[State’s attorney:]    What
items . . . did Ms. Woodard have on her?
 
[O’Brien:]                  She
had her clothes and then she had a purse.
 
[State’s attorney:]    Had
you asked her to bring her purse to the jail?
 
[O’Brien:]                  No.
 


[3]
              The
record shows the following:
 
[Appellant’s attorney:]       She wouldn’t be allowed to have that purse or anything in it
while she’s inside the jail?
 
[O’Brien:]                              She
can’t carry it.  She’s in handcuffs,
sir.  
            


[4]               The
record shows the following:
 
[Appellant’s attorney:]       When they come into the booking in area, though, they are in
police custody, are they not?
 
[Young:]                                Yes,
they are. 
 
[Appellant’s attorney:]       Okay.  And so how much
care and control would they have over their property at that point?
 
[Young:]                                The
officer’s in possession of the actual property that’s logged or taken in by the
officer. 
 
 


[5]
                              [State’s attorney:]                What’s
the purpose if you know about — for an inventory?
 
[O’Brien:]                              So
none of their property gets missing, so its accountable up to when I brought
her in and then I believe the jail staff is then.  Therefore, once they sign that inventory
sheet it is admitting that it’s all there and then it’s put into her property
there at the jail.
 


[6]           The record shows the following: 
 
[Appellant’s attorney:]       And Deputy Young . . . are you familiar with jail procedure?
 
[Young:]                                Yes.

 
 [Appellant’s
attorney:]      Okay.  So when a person comes into the jail are they
allowed to have any of their personal possessions with them?
 
[Young:]                                The
only thing that’s allowed that’s brought into the jail facility that I have
seen is prescription medications that are brought in on a - - the nurse would
have to accept it and, you know, make sure it’s valid.
 
[Appellant’s attorney:]       So everything else goes into the property bag and stored away
and they don’t have access to it without someone else being present or seeing
an inventory sheet or anything like that?
 
[Young:]                                Yes,
that’s true.


[7]        The following links may
circumstantially establish the sufficiency of the evidence to prove knowing
possession:  (1) the defendant’s presence
when a search is conducted, (2) whether the contraband was in plain view, (3)
the defendant’s proximity to and the accessibility of the narcotic, (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 drugs were found, (12) whether the place where the drugs were 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 v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
 


