                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00048-CR

GINNIE FAY ROBERTS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F47843


                          MEMORANDUM OPINION


      Ginnie Roberts appeals from her convictions for the offenses of possession of a

controlled substance with the intent to deliver and for delivery of marihuana to a child.

TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(d), 481.122 (West 2010).               Roberts

complains that the evidence was insufficient to establish that she intentionally or

knowingly possessed a controlled substance, was insufficient to establish that she

delivered marihuana to a minor, that she received ineffective assistance of counsel, and
that the trial court abused its discretion by admitting a handwritten notebook into

evidence because it constituted hearsay.

Sufficiency of the Evidence

        In her first issue, Roberts complains that the evidence was insufficient for the

jury to have determined that Roberts intentionally or knowingly possessed

methamphetamine that was found during a search of a residence where Roberts was

staying. In her second issue, Roberts complains that the evidence was insufficient for

the jury to have found that she delivered marihuana to her daughter because there was

no evidence that Roberts had actually transferred marihuana to her daughter. The

Court of Criminal Appeals has expressed our standard of review of a sufficiency issue

as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).




Roberts v. State                                                                            Page 2
        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at

326. Further, 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.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Possession with Intent to Deliver

        Roberts complains that the evidence was insufficient for the jury to have found

that she intentionally or knowingly possessed methamphetamine that was found

during a search of a residence where she was staying. To prove unlawful possession of

any controlled substance, "the State must prove that (1) the accused exercised control,

management, or care over the substance; and (2) the accused knew the matter possessed

was contraband." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX.

HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010) ("'Possession' means actual care,

custody, control, or management.").


Roberts v. State                                                                    Page 3
        Possession is not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12.

When the defendant is not in exclusive possession of the place where the controlled

substance is found, then additional, independent facts and circumstances must

affirmatively link the defendant to the substance in such a way that it can reasonably be

concluded that the defendant possessed the substance and had knowledge of it.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d

14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In other words, the evidence

"must establish, to the requisite level of confidence, that the defendant's connection with

the [contraband] was more than just fortuitous," which may be established by direct or

circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

        Several factors may help to establish a link between the defendant and the

contraband, including (1) the defendant's presence when a search is conducted; (2)

whether the substance was in plain view; (3) the defendant's proximity to and the

accessibility of the substance; (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 substance was found; (12) whether the


Roberts v. State                                                                      Page 4
place where the substance was 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, 202 S.W.3d at 162 n.12.

        Not all of these factors must be proved; rather, it is the cumulative logical force

the factors have in proving possession that we must consider. See James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Additionally, the

absence of some of the factors is not evidence of innocence that must be weighed

against the factors that are present. Id. Rather, they are used to assess the sufficiency of

the evidence linking the defendant to the knowing possession of contraband. See, e.g.,

Roberson v. State, 80 S.W.3d 730, 735-36 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd);

Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no pet.) (explaining

that presence or absence of factors "aid appellate courts in determining the legal

sufficiency of the evidence in knowing possession of contraband cases").

Facts

        Roberts's daughter, C.R., had recently come to live with her mother.           C.R.

informed a counselor at the school that she was attending that she was concerned for

her mother who was using methamphetamine. The counselor made a report to the

Department of Family and Protective Services, who sent an investigator to speak with

C.R. at her school. C.R. told the investigator that she and her mother were living with

her mother's boyfriend, David McKinney, and that her mother had given C.R.


Roberts v. State                                                                      Page 5
marihuana to smoke and had smoked it with her. The investigator contacted the drug

task force in Johnson County to assist her in visiting the home.

         Two officers accompanied the investigator to the residence of McKinney.

McKinney answered the door and allowed them to come into the residence; however,

he asked them to leave when they asked if they could search the residence for

controlled substances because he was afraid they would find marihuana. The officers

instigated the process of procuring a warrant to search the residence. During this time,

no one was allowed in the house. McKinney asked if he could leave and was allowed to

leave the premises.

         An individual later identified as Wayne Gorman was residing in a camper

behind McKinney's home. When the officers initiated contact with Gorman, he gave the

officers a false name. While the officers were running a search on the name Gorman

had given them, a vehicle with Roberts, C.R., and another female arrived at the

residence. Roberts advised one of the officers that Gorman's first name was Waylon but

she did not know his last name. The officer asked for and received permission to search

Roberts's purse, which contained Gorman's driver's license, but no marihuana or

controlled substances. The officer then asked Roberts if drugs would be found in the

search    of       the   house,   and   Roberts   admitted   that   marihuana   and   maybe

methamphetamine would be found in the master bedroom.




Roberts v. State                                                                      Page 6
        At some point, the investigator for the Department spoke with Roberts and asked

her whether she knew about C.R.'s marihuana use and if Roberts had provided the

marihuana to C.R. Roberts admitted that she had given C.R. marihuana for anxiety.

When asked if methamphetamine would be found in the search, Roberts stated that she

did not think so. Ultimately, Roberts was allowed to leave the scene, but C.R. remained

and was later placed into foster care.

        When the residence was searched, officers found a small chest on top of a table in

the master bedroom which contained 4.15 grams of methamphetamine, cash, scales, and

baggies. The officers located a pink notebook that allegedly contained a ledger of drug

sales next to the chest. C.R. identified the notebook as belonging to Roberts and that it

contained Robert's     handwriting.      Another    baggie   containing   .19 grams of

methamphetamine was found in a dresser drawer that contained women's

undergarments that C.R. identified as her mother's clothing. That dresser also had a

framed picture of C.R. on top of it. A meth pipe which C.R. said her mother used to

smoke methamphetamine was found on top of a woman's jacket in the bedroom as

well.

        C.R. testified that she told the counselor of her mother's methamphetamine use

because she was afraid for her. C.R. testified that the chest and notebook belonged to

her mother and that she had observed her mother selling methamphetamine on more

than one occasion and had seen her write in the notebook. C.R. had seen her mother


Roberts v. State                                                                    Page 7
getting methamphetamine out of the chest and putting money into it. C.R. and her

mother were both residing at McKinney's residence and her mother slept in the master

bedroom with McKinney.

        The pink notebook had a post-it note attached inside the front cover with

Roberts's name on it. A latent fingerprint was found inside the notebook that an expert

testified was "highly probable" to be Roberts's, but was not that of McKinney or

Gorman. Inside the notebook the entries "amount," "cash," "fronts," "balance," and

"balance with bag" were handwritten which an officer testified were commonly used

terms in drug transactions.

        C.R. also testified that her mother gave her marihuana because she did not want

C.R. to get it from other sources that might contain other drugs. C.R. stated that she

and her mother smoked it together, and she knew it was marihuana by its taste and

smell, as well as from seeing pictures of it online.

Analysis

        Roberts argues that there was insufficient evidence to show that she intentionally

or knowingly possessed the methamphetamine that was found in the house and was

insufficient to link her to the methamphetamine. However, viewing the record in the

light most favorable to the judgment, the evidence showed that C.R. identified the chest

containing the methamphetamine as belonging to Roberts, testified that she had

observed Roberts using the chest for drug transactions, and knew that the notebook


Roberts v. State                                                                    Page 8
belonged to Roberts because she saw Roberts in possession of it regularly and saw her

mother write in it. The jury had the ability to decide whether it believed some, all, or

none of the witnesses' testimony, especially that of C.R., regarding Roberts's possession

of the methamphetamine. Using the appropriate factors as set forth in Evans, we find

that there was a sufficient link between Roberts and the methamphetamine found in the

house and the evidence was sufficient for the jury to have found that Roberts

intentionally or knowingly possessed the methamphetamine. We overrule issue one.

Delivery of Marihuana to a Child

         Roberts complains that the evidence was insufficient for the jury to have found

that she delivered marihuana to a child because there was insufficient evidence that any

substance given to C.R. was in fact marihuana. Roberts argues that this is because no

marihuana was found during the search of Roberts's purse or the residence, no

marihuana was admitted into evidence, and no testimony was given by a chemist

identifying any substance as marihuana. Roberts argues that the only evidence of

delivery of marihuana to a child came from C.R. and C.R. was not qualified to identify

any substance she received from her mother as being marihuana.

         Roberts also argues that C.R.'s testimony was the only evidence of delivery of

marihuana and that the evidence presented to attempt to attack C.R.'s credibility should

establish that no rational juror should have found Roberts guilty beyond a reasonable

doubt.     However, Roberts does not mention the testimony from the Department's


Roberts v. State                                                                   Page 9
investigator that Roberts admitted to giving marihuana to C.R. to help with her anxiety.

The witness's testimony that Roberts said she gave marihuana to C.R. is direct evidence

of that fact. See Hernandez v. State, 698 S.W.2d 679, 680 (Tex. Crim. App. 1985) (citing

Bright v. State, 556 S.W.2d 317 (Tex. Crim. App. 1977); Stein v. State, 514 S.W.2d 927, 933-

934 (Tex. Crim. App. 1974).

        Further, as discussed in Roberts's first issue, it was the jury's province to

determine the credibility of C.R., and whether to believe some, all, or none of her

testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). C.R.

testified that she was familiar with the sight, smell, and taste of marihuana from prior

experience. Viewing the evidence is the light most favorable to the judgment, we find

that the evidence was sufficient for the jury to have found Roberts guilty of the delivery

of marihuana to a child. We overrule issue two.

Ineffective Assistance of Counsel

        In her third issue, Roberts complains that she received ineffective assistance of

counsel because her trial counsel agreed to stipulate to the lab reports that indicated

that the substance found at the residence was methamphetamine. The State's expert

witness was unavailable to testify at trial. In order to prevail on a claim of ineffective

assistance of counsel, Roberts must meet the two-pronged test established by the U.S.

Supreme Court in Strickland that (1) counsel's representation fell below an objective

standard of reasonableness, and (2) the deficient performance prejudiced the defense.


Roberts v. State                                                                     Page 10
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Unless she can prove both prongs,

an appellate court must not find counsel's representation to be ineffective. Lopez, 343

S.W.3d at 142.      In order to satisfy the first prong, Roberts must prove by a

preponderance of the evidence that trial counsel's performance fell below an objective

standard of reasonableness under the prevailing professional norms. Id. To prove

prejudice, Roberts must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Id.

        An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation." Id. (quoting

Bone, 77 S.W.3d at 833).

        Roberts did not file a motion for new trial on the basis of ineffective assistance of

counsel and the record is silent as to any potential strategy by her trial counsel as to


Roberts v. State                                                                      Page 11
why he entered into an agreement with the State to stipulate to the reports. In this case,

Roberts did not attempt to deny that the substance found in the residence was in fact

methamphetamine, but sought to show that C.R.'s testimony was false in an attempt to

distance Roberts from knowledge and possession of the methamphetamine.

Nevertheless, the record is silent as to any specific strategy by Roberts's trial counsel

and we will not speculate as to trial counsel's strategy. Because Roberts has not met her

burden to establish the first prong in Strickland, we overrule her third issue.

Admission of Evidence

        Roberts complains that the trial court abused its discretion in admitting the

notebook that was found next to the chest with the majority of the methamphetamine

because it constituted hearsay. We review a trial court's decision to admit evidence

under an abuse of discretion standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim.

App. 2005). We will uphold the trial court's ruling if it is "reasonably supported by the

record and is correct under any theory of law applicable to the case." Id.

        Hearsay is a "statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX.

R. EVID. 801(d). A party's own statements, however, are not hearsay. TEX. R. EVID.

801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) (Rule of

evidence 801(e)(2)(A) "plainly and unequivocally states that a criminal defendant's own

statements, when being offered against him, are not hearsay.").              A party's own


Roberts v. State                                                                    Page 12
statements "are admissible on the logic that a party is estopped from challenging the

fundamental reliability or trustworthiness of his own statements." Trevino, 991 S.W.2d

at 853. Additionally, "party admissions, unlike statements against interest, need not be

against the interests of the party when made; in order to be admissible, the admission

need only be offered as evidence against the party." Id.

        C.R. testified that she had seen Roberts writing in the notebook and was familiar

with her handwriting. C.R. testified that the columns and other writings that an officer

testified contained terms commonly associated with the sale of controlled substances

were in Roberts's handwriting. The notebook was offered to establish that Roberts was

involved in the delivery of methamphetamine prior to the search, and to aid in

affirmatively linking Roberts to the methamphetamine discovered during the search.

As such, the notebook did not constitute hearsay. We overrule issue four.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.


                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 8, 2015
Do not publish
[CRPM]


Roberts v. State                                                                   Page 13
