                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-18-00120-CR
                                 ________________________

                              VIOLA HERNANDEZ, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 242nd District Court
                                      Hale County, Texas
                 Trial Court No. B20422-1704; Honorable Kregg Hukill, Presiding


                                        December 11, 2018

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


      Appellant, Viola Hernandez, was convicted by a jury of possession of a controlled

substance, to-wit: methamphetamine, in an amount of less than one gram, a state jail

felony.1 The jury then assessed her punishment at one hundred eighty days confinement




      1   TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2017).
in the State Jail Division of the Texas Department of Criminal Justice. By a single issue,

she contends the evidence was insufficient to support the jury’s verdict. We affirm.


       BACKGROUND

       On October 15, 2016, Appellant was riding as a passenger in a vehicle being driven

by Jason Owens when he was pulled over by Trooper Corey Kernell of the Texas

Department of Public Safety for a traffic violation. Neither Jason nor Appellant were the

owners of the vehicle. When it was determined that Jason did not have a driver’s license

or other form of identification on him at the time, he was asked to exit the vehicle. Due to

mechanical issues with the vehicle, Jason was required to exit via the passenger door.

When Appellant exited the vehicle to allow Jason to get out, she was holding in her hands

a purple purse. According to Trooper Kernell’s testimony, that same purple purse was

later located on the passenger floorboard between Appellant’s feet.

       Trooper Kernell asked for and received permission from Jason to conduct a search

of the vehicle. At the same time, he asked Appellant for permission to search the purple

purse in her possession. Appellant consented to the search of the purse but immediately

stated the purse was not hers. There being no objection to the search, Trooper Kernell

proceeded to search the purple purse, locating a glass pipe containing a crystalline

residue that forms the basis of the prosecution in this case. The search also revealed a

prescription bottle and receipt issued to Appellant and a prescription bottle for

medications prescribed to “Olga.”2 Olga was not present during the traffic stop. There

were no other identifying documents contained in the purse.          Trooper Kernell then




       2   The record does not identify Olga’s last name.

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arrested Appellant for possession of a controlled substance and Jason for an outstanding

warrant for drug possession.


      At trial, the State did not call the owner of the vehicle or Olga. A forensic chemist

for the Texas Department of Public Safety testified that the residue in the glass pipe

consisted of methamphetamine in an amount of .06 grams.


      STANDARD OF REVIEW

      The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to

support a conviction, a reviewing court considers all the evidence in the light most

favorable to the verdict and determines whether, based on that evidence and reasonable

inferences to be drawn therefrom, a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616,

622 (Tex. Crim. App. 2017).


      The jury is the sole judge of the credibility of the witnesses and the weight to be

given to their testimonies, and a reviewing court must defer to those determinations and

not usurp the jury’s role by substituting its judgment for that of the jury. Id. (citing

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). The duty of a

reviewing court is simply to ensure that the evidence presented supports the fact finder’s

verdict and that the State has presented a legally sufficient case of the offense charged.


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Id. When a reviewing court is faced with a record supporting contradicting conclusions,

the court must presume the fact finder resolved any such conflicts in favor of the verdict,

even when not explicitly stated in the record. Id. “Under this standard, evidence may be

legally insufficient when the record contains no evidence of an essential element, merely

a modicum of evidence of one element, or if it conclusively establishes a reasonable

doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)).

Sufficiency of the evidence is measured against “the elements of the offense as defined

by the hypothetically correct jury charge for the case.” See Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997).


       POSSESSION OF A CONTROLLED SUBSTANCE

       As indicted in this case, a person commits the offense of possession of a controlled

substance if she knowingly or intentionally possesses a controlled substance listed in

Penalty Group 1 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE

ANN. § 481.115(a), (b) (West 2017). Methamphetamine is a controlled substance listed

in Penalty Group 1. See § 481.102(6) (West Supp. 2018). Therefore, in order to support

the verdict rendered in this case, the State was required to prove, beyond a reasonable

doubt, that (1) Appellant, (2) knowingly possessed, (3) methamphetamine, (4) in an

amount of less than one gram.


       To prove possession, the State was required to show that Appellant (1) exercised

“actual care, custody, control, or management” of the substance and (2) knew the matter

she possessed was contraband. See § 481.002(38) (West 2017). See also TEX. PENAL

CODE ANN. § 1.07(a)(39) (West Supp. 2018); Poindexter v. State, 153 S.W.3d 402, 405-

06 (Tex. Crim. App. 2005).

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       ANALYSIS

       Here, Appellant contends the evidence was insufficient because she immediately

denied ownership of the purple purse when confronted by Trooper Kernell and a search

of its contents revealed a prescription bottle containing medications prescribed to Olga.

She further contends that because the purse did not contain any personal identifiers

showing to whom it belonged, and because the driver of the vehicle was arrested on an

outstanding drug warrant, a reasonable juror could have determined that the purse

belonged to someone other than Appellant. In support of her argument, she contends

the State did not meet its burden of proof because it did not refute by the presentation of

evidence the possibility that the purse belonged to either the owner of the vehicle or Olga,

or the possibility that Jason secreted the glass pipe into the purse as he exited the vehicle

in compliance with Trooper Kernell’s instructions.


       Unfortunately for her, Appellant’s arguments only address what the evidence

“didn’t show,” not what it did show. As the exclusive fact finder, the jury was capable of

assessing the credibility of the witnesses and the weight to be given their testimonies.

Here, the undisputed evidence established that, at the time Jason exited the vehicle,

Appellant was holding the purse in her hands and that it remained in close proximity to

her after she re-entered the vehicle. The undisputed evidence further established that

the purse contained a receipt and a prescription bottle for medications prescribed to

Appellant. Trooper Kernell also testified that the purse contained a package of synthetic

marihuana. From this evidence, we conclude a rational juror could have found the

essential elements of the offense beyond a reasonable doubt. Appellant’s sole issue is

overruled.


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      CONCLUSION

      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                     Justice

Do not publish.




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