                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00174-CR


REBECCA PLUMLEE                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                   STATE

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         FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                   TRIAL COURT NO. 2016-0197M-CR

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                       MEMORANDUM OPINION 1

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                                  I. Introduction

     A jury found Appellant Rebecca Plumlee guilty of possession of a

controlled substance (methamphetamine) in an amount of 1 gram or more but

less than 4 grams, and the trial court assessed her punishment at 30 years’

confinement after finding the indictment’s enhancement allegations true. See



     1
      See Tex. R. App. P. 47.4.
Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2017); Tex. Penal Code

Ann. § 12.42 (West Supp. 2017) (setting out punishment range for offense

enhanced by repeat felonies). In two issues, Plumlee appeals, complaining that

the evidence is insufficient to support her conviction. We affirm.

                             II. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).             Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.         See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the


                                         2
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).     We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

      To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d

820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Jenkins, 493

S.W.3d at 599. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See id.; see also Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific

element of a penal offense that has statutory alternatives for that element, the

sufficiency of the evidence will be measured by the element that was actually

pleaded, and not [by] any alternative statutory elements.”).




                                         3
                                 III. Sufficiency

      Plumlee argues that the evidence was insufficient to show that she

knowingly    possessed    the   controlled   substance,    i.e.,   that   she   knew

methamphetamine was in her purse, and that it was “never established on the

record that methamphetamine was a penalty group 1 drug at the time [she] was

arrested.”

A. Evidence

      1. State’s Case

      Mark Breeding, an Enterprise truck driver, testified that on July 8, 2014, he

arrived at Enterprise’s truck yard at around 3:30 a.m. to conduct his pre-trip

maintenance inspection. When he unlocked the gate to the truck yard, he saw

three people walking down Skinner Road, which bordered the truck yard. 2

      Breeding proceeded through the gate, parked his pickup truck facing the

eighteen-wheeler, and left his pickup running to provide light while he checked

the eighteen-wheeler’s oil and fluids. 3 He left open the doors to his pickup so he

could unload his belongings and started the eighteen-wheeler’s engine. When

he walked back around to the pickup to retrieve his briefcase, he was startled by



      2
      Breeding said he did not think anything of seeing the people walking down
Skinner Road “because you see it all of the time at that time of morning in
Bowie.”
      3
        Breeding said that because there had been problems with the yard’s
lights, his pickup’s headlights provided the only illumination in the predawn hours.


                                         4
the sudden appearance of three people standing by the driver’s side of his

pickup. He identified Plumlee as one of these people. 4

      Breeding said that Plumlee was wearing only a bra and panties. One of

the men was wearing shorts and no shoes.                In their five-to-ten-minute

encounter—during which time Breeding tried to get rid of the trio because they

were not appropriately dressed to be on the worksite 5—the other man removed

his button-down shirt and gave it to Plumlee to wear.

      The trio first asked Breeding to give them some water. He declined to

open the office to do so and did not have sufficient water available in his truck to

give to them. They then asked Breeding to let them borrow his pickup “to go get

water.” As the trio walked around the yard and circled Breeding, he noticed that

one of the men had a big Bowie knife on him. 6 Breeding said that he was very

nervous and a little bit scared because he was the only one there “and you could

tell there was something wrong . . . . [T]hey were on something . . . .”

      A few minutes later, one of the men with Plumlee told Breeding that they

were going to take his pickup. Breeding refused, grabbed his pistol out of the


      4
      A subsequent witness identified the two males as “McGowan” and
“Geesland.”
      5
      Breeding stated that the company hauled oil that contained gases “and a
numerous amount of other nasty things,” requiring the company’s employees to
wear H2S monitors and benzene monitors to prevent poisoning from the
hydrocarbons.
      6
       A subsequent witness identified McGowan as the man with the knife.


                                         5
truck, and put it in his pocket. Breeding said that all three had bloodshot eyes

and while one of them was quiet, the other two were “just rattling nonstop” but

what they said made no sense. 7 Breeding was relieved when another employee

came in early, saw that Breeding was surrounded, and told the group that they

needed to leave. Breeding said that when his coworker told them to leave, “they

commenced to giving him the same grief that they were giving [Breeding].” His

coworker also noticed the big knife and called 9-1-1. When the trio realized that

9-1-1 had been called, Plumlee sat down while McGowan and Geesland started

to leave.

      Approximately five minutes after his coworker called 9-1-1—which

Breeding described as “an eternity”—a Bowie police officer arrived “and the

sheriff was right behind him,” which Breeding said helped to defuse the situation.

Breeding said that when the deputy arrived, Plumlee sat down in the rocks

beside Breeding’s pickup, opining, “I guess she knew that -- to give up or

whatever. I don’t know.” 8

      Former Deputy Sheriff Cody Stone 9 testified that he was on duty, working

for Montague County, during the early morning hours of July 8, 2014, and that he


      7
      Breeding did not identify which of the three was the quiet one. When
asked by the prosecutor whether Plumlee was acting “a little out of sorts,”
Breeding replied, “Yes, ma’am.”
      8
       Plumlee did not cross-examine Breeding.
      9
       By the time of trial, he was employed as a police officer for the Bowie
Police Department.


                                        6
was dispatched to the Enterprise yard at around 3:45 a.m. Because he was in

the northern part of the county when the call came in, he asked other units to go

to the location to secure the scene. Two marked Bowie Police Department patrol

units arrived at the yard before he did.

      Officer Stone said that when he arrived at the yard, Plumlee was sitting

cross-legged on the ground next to a pickup with her purse on her lap. Geesland

was walking around and acting nervously, while McGowan was not moving

around much. One of the other officers advised him that a large knife had been

removed from McGowan.

      Officer Stone testified that because he did not know if Plumlee or her

companions possessed any other weapons, he was concerned about his safety.

So after identifying the trio to the dispatcher, he asked them for consent to

search their persons. The men acquiesced, and he patted them down, finding no

weapons. Officer Stone then asked Plumlee for permission to search her. She

responded to his request by handing her purse to him.

      Officer Stone took Plumlee’s purse to the hood of his patrol vehicle.

Plumlee followed him and stood close to him the entire time while he searched.

During this time, Plumlee voiced no objections. When Officer Stone pulled back

a zipper pocket to check for weapons, he saw a little plastic baggie of the type

commonly used to hold methamphetamine. When he pulled out the baggie, he

saw “a white crystal-like substance” in it. A further search revealed a folded-up

cough drop wrapper containing what he thought were more narcotics.


                                           7
      Officer Stone said that when he removed the baggie from Plumlee’s purse,

Plumlee    declared,   “[T]hat’s   not   mine,   there’s   no   way   that’s   mine.” 10

Nevertheless, based on his discoveries, Officer Stone arrested Plumlee “for

possession of a controlled substance, PG 1.” He explained that “PG 1” meant

penalty group 1, one of the penalty groups under the health and safety code

used to categorize various drugs, but that this was only a preliminary charge until

the drugs were actually weighed.

      Officer Stone transported Plumlee and McGowan to the jail. Officer Stone

was present when Plumlee’s book-in photo was taken. The trial court admitted

the photo into evidence. Officer Stone noted that the book-in photo shows that

the pupils of Plumlee’s eyes were dilated, which he stated was a sign that she

had used methamphetamine. However, he also conceded on cross-examination

that there are a number of substances that can cause a person’s pupils to dilate

and that a person’s pupils also dilate in the dark.

      William Todsen, a forensic scientist with the Texas Department of Public

Safety Crime Laboratory in Abilene, tested the two items found in Plumlee’s

purse, both of which contained methamphetamine, the total amount of which

weighed 1.57 grams. He also testified that methamphetamine is a controlled

substance in Penalty Group 1.



      10
        Officer Stone stated that this occasion was not the first time he had been
given consent to search and found illegal contraband.


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      2. Defense’s Case

      Plumlee opted to testify in her own defense. At some point before the

events leading to her July 8, 2014 arrest, her father had died, and Plumlee had

intended to go to her stepmother’s house in Montague County to retrieve her

father’s truck and take it home with her “to get it legal and get the paperwork

changed and all of that.” A female friend from a nearby town gave Plumlee a ride

to Bowie on the night in question to a party at a house “by the sale barn,” where

several people were drinking and some people were doing drugs. Plumlee said

that she drank but did not use any drugs and that she had planned to go to her

stepmother’s house the next day. Plumlee’s friend left the party and went home

before the homeowner kicked everyone out.

      Plumlee said that after the homeowner abruptly told everyone to leave, she

went outside before realizing that she had left her purse in the house. Plumlee

described the situation as “a lot of motion and a lot of yelling . . . . [I]t was just

kind of crazy there for a minute.” She asked the homeowner if she could retrieve

her bag; he said no, but someone else went in and got it for her after she

described where her purse was located. 11

      Upon leaving the house, Plumlee headed for her stepmother’s house.

McGowan and Geesland, both of whom she had met for the first time at the

      11
        Plumlee denied that she had been in her underwear that night, stating
that she was wearing a swimsuit and a pair of shorts. During cross-examination,
Plumlee said that her clothes were in a bag that had not been retrieved from the
house.


                                          9
party, were from the area and offered to accompany her. They walked down the

street, took a right, then took another right, and ultimately ended up in

Enterprise’s yard. Because Plumlee did not know her way around, McGowan

was using Plumlee’s phone to navigate, and she followed him. Plumlee testified

that she did not recall anything being said to Breeding about his truck, and she

denied having asked him for water.

      Plumlee agreed that from the point that the police arrived, the events that

occurred were “[p]retty close to what they said.”             She agreed that

methamphetamine was found in her purse but stated that she had not known that

it was in there and denied that the methamphetamine belonged to her. Plumlee

did not dispute that methamphetamine was a controlled substance or that the

quantity found in her purse was 1.57 grams.

      Plumlee acknowledged that she had prior criminal convictions: Plumlee

was arrested in 2013 for failure to identify; in 2009, she had pleaded guilty to

fraud in exchange for five years’ confinement; in 2005, she had pleaded guilty to

fraudulent possession of a controlled substance or prescription—hydrocodone—

in exchange for two years’ confinement; and in 2003, she had pleaded guilty to

the felony offense of attempting to obtain a controlled substance by fraud in

exchange for probation, which was subsequently revoked. At the time she was

arrested for the possession-of-a-controlled-substance offense at issue, she was

unemployed.




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B. Analysis

       In her first issue, Plumlee argues that there is no evidence that

methamphetamine was a Penalty Group 1 substance at the time of her arrest in

2014. 12 In her second issue, she challenges the sufficiency of the evidence to

show that she knew the methamphetamine was in her purse.

       In her first issue, Plumlee concedes that the State’s witnesses explained

that she had been arrested for possession of methamphetamine, a Penalty

Group 1 controlled substance, but she nonetheless argues that the testimony

was “entirely in the present tense.” That is, Plumlee contends that no evidence

was presented to allow the jury to reasonably infer that methamphetamine was a

controlled substance in Penalty Group 1 at the time of her arrest rather than at

the time of her trial.

       Whether methamphetamine was a controlled substance in Penalty

Group 1 is a question of law, not of fact. See Lindsay v. State, No. 06-11-00242-

CR, 2012 WL 3132729, at *2 (Tex. App.—Texarkana July 31, 2012, no pet.)

       12
         The State argues that it did not have to prove methamphetamine’s
penalty group in part because it never alleged in the indictment that
methamphetamine was in Penalty Group 1 and that in any event, Plumlee never
objected to the indictment. We do not read Plumlee’s argument as complaining
about a lack of notice in the indictment, cf. Hicks v. State, 419 S.W.3d 555, 558
(Tex. App.—Amarillo 2013, pet. ref’d) (“For over a century, it has been clear that
‘[e]very one is conclusively presumed to know the law, both as to civil and
criminal transactions.’” (quoting Thompson v. State, 26 Tex. Ct. App. 94, 97–98,
9 S.W. 486, 486 (1888))), but we do note that the indictment’s header listed the
charge as “POSS CS PG 1 >=1G<4G—481.115(c) HSC,” an abbreviation for
health and safety code section 481.115, “Offense: Possession of Substance in
Penalty Group 1,” subsection (c).


                                       11
(mem. op., not designated for publication). And, as pointed out by the State, the

trial court, not the State, had the obligation to charge the jury on the law in effect

at the time of the offense. See Tex. Code Crim. Proc. Ann. art. 36.14 (West

2007) (requiring jury charge to set forth the law applicable to the case); Mendez

v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (stating that the trial

court’s charge should include “at a minimum, ‘all of the law applicable to the

criminal offense that is set out in the indictment or information,’ as well as

‘general admonishments, including . . . the presumption of innocence, proof

beyond a reasonable doubt, unanimity of the verdict, and so forth” (quoting

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007))).

      In its charge, the trial court informed the jury that methamphetamine was a

controlled substance under Texas law, and Plumlee has not raised a complaint

about the jury charge in this appeal. We overrule Plumlee’s first issue.

      In her second issue, Plumlee challenges the sufficiency of the evidence to

show that she knew the methamphetamine was in her purse because she

(1) denied that the drugs were hers at the time of their discovery, (2) never tried

to hide her purse from the police, (3) handed her purse to Officer Stone without

incident, (4) lost control over the purse at some point before the drugs were

found, and (5) testified that the drugs were not hers.




                                         12
      A person commits the offense of possession of a controlled substance if

she knowingly 13 or intentionally possesses a controlled substance listed in

Penalty Group 1. Tex. Health & Safety Code Ann. § 481.102(6) (West Supp.

2017), § 481.115(a).    To prove possession, the State must prove that the

accused (1) exercised actual care, custody, control, or management over the

substance and (2) knew that the matter possessed was a controlled substance.

Id. § 481.002(38) (West 2017); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.

App. 2006). The State may prove the elements of possession through direct or

circumstantial evidence; however, the evidence must establish that the accused’s

connection with the substance was more than fortuitous. Poindexter v. State,

153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005), overruled in part on other

grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App.

2015). When the contraband is not in the defendant’s exclusive possession, a

factfinder may nonetheless infer that the defendant intentionally or knowingly

possessed it if there are sufficient independent facts and circumstances justifying

such an inference, including—but not limited to—the defendant’s proximity to and

accessibility of the controlled substance, whether she was under the influence of

a controlled substance when arrested, and whether she owned or had the right to


      13
        A person acts “knowingly” (1) with respect to the nature of his conduct or
to circumstances surrounding his conduct when he is aware of the nature of his
conduct or that the circumstances exist and (2) with respect to the result of his
conduct when he is aware that his conduct is reasonably certain to cause the
result. Tex. Penal Code Ann. § 6.03(b) (West 2011).


                                        13
possess the place where the drugs were found. See id. at 406; see also Evans,

202 S.W.3d at 162 n.12.

      Here, Breeding testified that Plumlee appeared at his industrial worksite at

around 3:30 a.m. scantily attired and accompanied by two men, one of whom

was shoeless. She and her companions asked odd questions, had bloodshot

eyes, and appeared to be “on something.” Officer Stone found the drugs in

Plumlee’s purse and noticed that the pupils of Plumlee’s eyes were dilated, which

he took as a sign that she had used methamphetamine. He also testified that it

was not unusual for people to give consent to a search resulting in the discovery

of illegal contraband.

      Plumlee,    who    had   multiple   prior   convictions   involving   controlled

substances and fraud, testified that she had lost possession of her purse earlier

that evening and that the methamphetamine found therein was not hers.

However, as the exclusive judge of the credibility of the witnesses, the jury was

entitled to believe all, some, or none of her testimony. See Franklin v. State, 193

S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no pet.) (“[T]he jury is free to

accept or reject any or all of the evidence of either party, and any or all of the

testimony of any witness.”). Viewed in the light most favorable to the verdict,

then, the jury could have instead chosen to believe Breeding’s testimony about

Plumlee’s unusual behavior in the pre-dawn hours and Officer Stone’s testimony

about her dilated eyes and finding the drugs in her purse to draw the reasonable




                                          14
inference that Plumlee knowingly possessed the drugs in her purse. Accordingly,

we overrule Plumlee’s second issue.

                               IV. Conclusion

      Having overruled both of Plumlee’s issues, we affirm the trial court’s

judgment.

                                                /s/ Bonnie Sudderth

                                                BONNIE SUDDERTH
                                                CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; PITTMAN and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 28, 2018




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