                                      NO. 07-03-0478-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                        JUNE 15, 2005

                            ______________________________


                                CONNIE G. ROY, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2003-402898; HONORABLE CECIL G. PURYEAR, JUDGE

                            _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Following a plea of not guilty, appellant Connie G. Roy was convicted of possession

of a controlled substance with intent to deliver and punishment was assessed at 35 years




      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent.
confinement. Asserting one issue, she contends the evidence is legally insufficient to

support the conviction.


      On the morning of April 10, 2003, acting on a report that James Miller was

manufacturing methamphetamine in a storm cellar at 1316 34th Street, officers went to the

residence and attempted to “knock and talk” and obtain consent to search the premises.

Lieutenant Longway and Sergeant Arredondo went to the back of the residence and

Investigator Bostwick remained at the front and initiated the knock and talk. Longway and

Arredondo smelled ether or anhydrous ammonia and then observed a propane tank in a

cellar with an open door. Bostwick initiated the knock and talk and Charlee Biggs answered

the door.   After being asked about marks on her arms, Biggs admitted to injecting

methamphetamine; however, she did not give consent to search the residence. When

Bostwick learned about discoveries at the rear of the house, he determined that probable

cause existed to obtain a search warrant.


       The officers did a protective sweep of the house to make sure no one was hiding

inside and that no chemicals would catch fire or explode. During the sweep, the officers

observed what appeared to be a disassembled methamphetamine lab in plain view. Also

they observed a mirror with white powder, numerous mason jars, glassware, and

pseudoephedrine boxes. Additionally, drug paraphernalia and syringes were seen in the

living room. After Officer Luciano left to obtain a search warrant, Biggs told Bostwick and




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Longway that James Miller would be returning soon and that if they waited on the front

porch, Miller would not stop. Based on her suggestion, the officers waited inside the house.


       When Luciano returned with the search warrant, a search was conducted. Among

many things, they found a methamphetamine lab, five boxes and one blister pack of

Sudafed, one blister pack of Drixoral, and nine blister packs of Contac cold tablets. At trial,

witnesses   identified   these   items   as   ingredients   used   in   the   manufacture    of

methamphetamine. Among many other items of glassware, a Pyrex glass plate with red

residue and a glass baking dish with red powder residue were found in the living room next

to the couch. At trial, testimony was received that the liquid found in the mason jar in a

bedroom and a mason jar containing a clear liquid contained methamphetamine calculated

to be 38.19 grams.


       While the search was ongoing, appellant drove to the residence in her car. James

Miller was a passenger in her car. Numerous items, including Prestone starting fluid, yellow

bottles of Heet, and pseudoephedrine tablets, consistent with the manufacture of

methamphetamine, were seen in plain view in the car. After appellant gave permission to

search the vehicle, several other items were obtained from the car. Also, officers found

receipts in her pocket for the purchases of tablets on April 4 and April 10. Among other

items, at trial the State introduced over 121 exhibits including many photographs of drug

making paraphernalia into evidence.




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       By her only issue, appellant contends the evidence presented during the guilt-

innocence phase of trial was legally insufficient to prove she intentionally and knowingly

possessed, with intent to deliver, a controlled substance namely methamphetamine, by

aggregate weight, including adulterants or dilutants, of less than 200 grams but not less than

four grams.    In response, the State contends that because the evidence established

appellant’s participation as a party to the offense, it is legally sufficient to sustain the

conviction.


       In conducting a legal sufficiency review, we must determine whether, after viewing

the evidence in the light most favorable to the prosecution, 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, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 ( 1979). The

standard is the same for both direct and circumstantial evidence cases. King v. State, 895

S.W.2d 701, 703 (Tex.Cr.App. 1995). In our review, we do not resolve any conflict of fact,

weigh any evidence, or evaluate the credibility of the witnesses, as this was the function of

the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992). Rather,

our duty is to determine whether both the explicit and implicit findings of the trier of fact are

rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.

Id. at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the

verdict. Matson v. State, 819 S.W .2d 839, 843 (Tex.Cr.App. 1991).




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       As material to appellant’s contentions here, the jury was instructed as follows:


                                             4.
       All persons are parties to an offense who are guilty of acting together in the
       commission of the offense. A person is criminally responsible as a party to an
       offense if the offense is committed by her own conduct, by the conduct of
       another for which she is criminally responsible, or by both.


       A person is criminally responsible for an offense committed by the conduct of
       another if, acting with intent to promote or assist the commission of the
       offense, she solicits, encourages, directs, aids, or attempts to aid the other
       person to commit the offense. Mere presence alone will not constitute one a
       party to an offense.


                                            5.

                                          * * *

       If you find from the evidence beyond a reasonable doubt that on or about April
       10, 2003, in Lubbock, Texas, Charlee Biggs and/or James Miller did then and
       there knowingly possess, with intent to deliver . . . and that CONNIE ROY then
       and there acting with intent to promote or assist the commission of the
       offense, if any, solicited, encouraged, directed, aided or attem pted to aid
       Charlee Biggs and/or James Miller to commit the offense, if any by her own
       actions and conduct during the commission of said offense, if any, then you
       will find the defendant guilty of the offense of possession, with intent to
       deliver, a controlled substance . . . .


Appellant made no objection to the charge in the trial court and presents no charge error on

appeal.


       Because appellant does not contend that Miller and Biggs were not in possession of

the 38.19 grams of methamphetamine found in the residence, in our review of the evidence,

we focus on the evidence as it may indicate whether appellant assisted or aided Miller and


                                             5
Biggs in their unlawful conduct. Purchase receipts dated before April 10 for ingredients

essential for the manufacture of the contraband were found on appellant. Also, purchase

receipts dated April 10 were found in her car as well as other items, i.e., “Heet,” baggies,

etc., related to the manufacture and distribution of contraband. Further, Miller was riding

with appellant when they returned to the house with supplies for the manufacture of

contraband and where the 38.19 grams of contraband were found by police. Because

participation in an offense may be inferred from the circumstances, see Beardsley v. State,

738 S.W.2d 681, 684 (Tex.Cr.App. 1987), here, considering that the evidence was received

which identified appellant as a “cook” of methamphetam ine, we conclude a rational jury

could have reasonably deduced that appellant assisted and aided Miller and Biggs in the

commission of the offense.


       We have not overlooked appellant’s argument that the evidence did not demonstrate

compliance with the affirmative links test set out in Jenkins v. State, 76 S.W.3d 709, 712

(Tex.App.–Corpus Christi 2002, pet. ref’d); however, appellant made no objections to the

charge and presents no charge error here. Moreover, where a party charge was given, in

Eastman v. State, 636 S.W.2d 272 (Tex.App.--Amarillo 1982, pet. ref’d), we affirmed the

conviction under sections 7.01(b) and 7.02(a)(2) of the Penal Code. See generally Cano

v. State, 3 S.W.3d 99, 106 (Tex.App.--Corpus Christi 1999, pet. ref’d) (holding that the law

of parties may be applied to the offense of delivery of a controlled substance). Appellant’s

sole issue is overruled.




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      Accordingly, the judgment of the trial court is affirmed.


                                                 Don H. Reavis
                                                   Justice

Do not publish.




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