
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-01-00514-CR


Debbie Perez, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. A-01-0062-S, HONORABLE THOMAS GOSSETT, JUDGE PRESIDING




	A jury convicted appellant Debbie Perez for possession with the intent to deliver four
grams or more but less than 200 grams of cocaine, and possession of methamphetamine in an amount
less than one gram.  See Tex. Health & Safety Code Ann. §§ 481.112(d), .115(b) (West Supp. 2002). 
The district court sentenced appellant to imprisonment for eight years.  By seven issues, appellant
challenges the legal and factual sufficiency of the evidence, and alleges other procedural errors. 
Because the evidence supports the jury's verdict and her procedural challenges are without merit,
we affirm the district court's judgment.

BACKGROUND
	In November 2000, appellant lived in a house with her eighteen-year-old son, Sesario
Perez, III, just outside the San Angelo city limits.  After developing probable cause that appellant's
son possessed cocaine, San Angelo police officers obtained and executed a search warrant for
appellant's house. (1)  Police entered the house at approximately 10:46 a.m. and encountered three
individuals sleeping in various areas of the house:  Sesario was on a mattress in the living room,
Sesario's friend was on the living room couch, and Sesario's female cousin was in appellant's
bedroom. (2)  Officers detained all three individuals as they searched appellant's house.
	Police found marihuana, cocaine, and methamphetamine hidden in appellant's kitchen
freezer and a triple beam digital scale in the kitchen trash receptacle.  They also recovered an
electronic gram scale from appellant's vanity in the master bathroom.  A search of appellant's
bedroom revealed plastic "corner bags" hidden in a photo album on top of her dresser. (3)  Inside
appellant's dresser drawer, police found plastic bags with missing corners.  In the living room, police
discovered marihuana and "finger" scales. (4)
	After completing their search, the officers arrested Sesario; (5) they released his friend
and cousin.  Later that evening, officers returned to appellant's house with a warrant and arrested her. 
Subsequently, a grand jury returned a two-count indictment against appellant.  Count one alleged
possession with the intent to deliver more than four but less than 200 grams of cocaine; count two
alleged possession with the intent to deliver less than one gram of methamphetamine.  At the
conclusion of the trial, the district court submitted its charge to the jury.  The charge included
instructions on both charges for possession with the intent to distribute and the lesser included
offense of possession.  On count one, the jury found appellant guilty as charged in the indictment. 
See Tex. Health & Safety Code Ann. § 481.112(d).  On count two, the jury found appellant guilty
only of the lesser included offense of possession.  See id. § 481.115(b).  Appellant appeals her
conviction on both counts.

DISCUSSION
	Appellant's first four issues challenge the legal and factual sufficiency of the
evidence.  The standards of review for legal and factual sufficiency are well established.  In
reviewing the legal sufficiency of evidence, we ask whether, viewing the evidence in the light most
favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt
all the essential elements of the charged offense.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).  When conducting a factual
sufficiency review, however, we ask whether a neutral review of all the evidence, both for and
against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our
confidence in the jury's determination, or that the proof of guilt, although adequate when considered
alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App.
2000).  The evidence supporting a verdict is factually insufficient only when the reviewing court
determines that the factual findings are against the great weight and preponderance of the evidence
so as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
	Appellant contends in her first issue that the evidence is legally insufficient to support
her conviction for possession with the intent to distribute cocaine (count one).  Her second issue
challenges the legal sufficiency of the evidence regarding her conviction for possession of
methamphetamine (count two).  To support a conviction on count one, the State had the burden to
prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine with
intent to deliver it to another person.  See Tex. Health & Safety Code Ann. § 481.112(a), (d).  To
support a conviction for count two, the evidence must establish that appellant knowingly or
intentionally possessed methamphetamine.  See id. § 481.115(a), (b).
	As to both counts, possession means more than simply "being where the action is;
it involves the exercise of dominion and control over the thing actually possessed."  McGoldrick v.
State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).  It is not necessary for the State to establish that
the accused exclusively possessed the contraband.  See Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim.
App. 1987).  However, when the accused is not in exclusive possession of the place where the
contraband is found, as here, independent facts and circumstances must affirmatively link the
accused to the contraband.  Id.  That is, the evidence, either direct or circumstantial, must establish
that the accused's connection with the contraband was more than just fortuitous.  See Brown v. State,
911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Although courts routinely identify numerous factors
as being relevant to the determination of whether an accused is affirmatively linked to contraband,
of paramount importance to that determination is the logical force the factors have by themselves
or in conjunction with others, not simply the frequency with which they appear.  See Whitworth v.
State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd).
	Appellant's first two issues assert the absence of affirmative links. (6)  The State
introduced evidence that:  the amount of cocaine found at appellant's house--slightly less than
twenty-four grams--and the manner in which it was found (some in bulk-form and some packaged
for sale) was inconsistent with personal use; the scales found in appellant's bathroom and kitchen
trash were commonly used to weigh gram amounts of illegal controlled substances, such as
methamphetamine and cocaine; there was an absence of paraphernalia indicating personal narcotic
usage by the house's occupants; and the bags found in appellant's dresser drawer were the type
commonly used for packaging cocaine for sale on the street.  Appellant argues that, despite this
evidence, the State did not carry its burden of proof.
	Specifically, appellant contends that the State failed to establish an affirmative link
between her and the contraband because she and her son testified that the drugs belonged to Sesario,
and appellant was not aware of their presence. (7)  As additional support, appellant points to the fact
that she was not at home when police searched her house, and the officers testified that the drugs
found in the house were not in plain view.  Appellant also contends that, because any of the three
people found in the house had access to the places where the drugs and paraphernalia were found,
the State could not establish that she possessed the drugs or intended to deliver them to anyone. 
Regarding count two specifically, appellant claims that because the police never found her in actual
physical possession of methamphetamine, the evidence is legally insufficient to support her
conviction.  Appellant also suggests that because the police department determined that there was
insufficient evidence linking Sesario's friend or cousin to the contraband, likewise the link between
herself and the drugs is too attenuated to support her conviction.
	Appellant's assertions before this Court are essentially the same ones she made to the
jury:  she could not be guilty of possession or possession with the intent to distribute because the
drugs were not hers and she did not know they were in her house.  In passing on the weight of the
evidence, we are mindful that the jury is the exclusive judge of the facts proved, the weight to be
given the testimony, and the credibility of the witnesses.  See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).  At trial, appellant
presented evidence that the drugs belonged to Sesario, not appellant, and that appellant did not know
that drugs were present in her house.  Sesario testified that he "planted" the drug paraphernalia in
appellant's room "the night before . . . whenever she went to work."  The State introduced evidence
that, despite his proclaimed ownership, Sesario was unable to confirm when and where he bought
the drugs.  The State's evidence also showed that appellant owned the house, the drugs found in her
house had been there for approximately one month, the amount of drugs found was inconsistent with
personal use, there was a conspicuous absence of paraphernalia indicating personal drug use, and she
had access to and exercised control over the areas where officers found drugs and drug paraphernalia,
i.e., the kitchen, living room, master bedroom, and master bathroom. (8)  Viewing the evidence in the
light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable
doubt that the evidence was sufficient to establish an affirmative link between appellant and the
contraband.  Therefore, there was sufficient evidence to support appellant's conviction.  We overrule
appellant's first and second issues.
	In appellant's third and fourth issues, she challenges the factual sufficiency of the
evidence to support counts one and two of her conviction.  It is not the reviewing court's duty to
disregard, realign, or weigh the evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.
1988).  Because it is up to the jury to accept or reject any or all of the evidence presented by either
party, we cannot set aside a verdict for factual insufficiency unless we find it is manifestly unjust. 
See Clewis, 922 S.W.2d at 135; Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).  Here,
the jury's decision is not manifestly unjust simply because the jury disbelieved Sesario's and
appellant's testimony that the drugs were his.  See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.
App. 1997); Rosie v. State, 7 S.W.3d 225, 233 (Tex. App.--Austin 1999, pet ref'd).  Viewing the
evidence neutrally and giving due deference to the jury's verdict, we cannot say the verdict is
manifestly unjust.  Accordingly, we overrule issues three and four.
	In her fifth issue, appellant asserts that the district court violated article 36.27 of the
Texas Code of Criminal Procedure by failing to record all proceedings concerning its
communications with the jury.  See Tex. Code Crim. Proc. Ann. art. 36.27 (West 1981). 
Specifically, she contends that the district court erred by not requiring the court reporter to make a
record of the proceedings that resulted in the court's written response to a written communication
from the jury. (9)  The jury requested "a copy of the transcript of the testimony of [S]esario Perez III. 
Specifically, the cross-examination of [S]esario Perez III."  In response, the district court "instructed"
the jury in writing to

remember the testimony as you have heard it from the witness stand or from those
exhibits admitted into evidence.  If there is a disagreement as to any testimony given
of a particular witness, upon informing the Court of such disagreement, that portion
may be read back to the jury from the Court Reporter's notes. . . .  I cannot authorize
the Court Reporter to transcribe the entire testimony of the witness.  If you are in
disagreement as to a portion of a witness' testimony, you must state specifically that
portion of the witness' testimony that is in dispute. . . .

Where communication between the jury and the court does not amount to additional instructions,
noncompliance with article 36.27 does not amount to reversible error.  Nacol v. State, 590 S.W.2d
481, 486 (Tex. Crim. App. 1979) (instructing jury, "You are only to consider what is contained in
the charge"); Brown v. State, 505 S.W.2d 850, 857 (Tex. Crim. App.1974) (instructing jury regarding
importance of not discussing the case with anyone or following any news account of the trial).  As
recognized by appellant in her brief, communication concerning an administrative matter does not
constitute giving the jury additional instructions.  See Jones v. State, 963 S.W.2d 826, 829 (Tex.
App.--Texarkana 1998, pet. ref'd).  Here, the court instructed the jury to remember the testimony
as they heard it, but if they disagreed about any testimony, the court could read it back to them from
the court reporter's notes.  Because the district court gave no additional instructions regarding the
facts or law pertaining to the charged offense, we do not believe the result in this case should be
different than in those cases where the court simply tells the jury to follow the charge that was given. 
See Nacol, 590 S.W.2d at 486; Brown, 505 S.W.2d at 857.  Moreover, appellant does not assert that
any harm resulted from the court reporter's failure to record the proceeding.  See McGowan v. State,
664 S.W.2d 355, 359 (Tex. Crim. App. 1984) (recognizing that even where a court's answer may
be construed as an additional instruction to the jury, appellant must demonstrate harm).  In fact,
appellant's counsel signed the court's communication to the jury.  There is also no evidence
indicating that appellant's counsel objected to the procedure or requested the court reporter to make
a further record of the proceeding.
	In her sixth issue, appellant urges that the court reporter's failure to record bench
conferences violated the Texas Rules of Appellate Procedure and requires reversal of her conviction. 
See Tex. R. App. P. 13.1(a).  Again, appellant does not argue that the court reporter's failure to
record such conferences prejudiced appellant's substantial rights or in any way impaired her ability
to argue the merits of her appeal.  Rule 13.1(a) requires a court reporter to "attend court sessions and
make a full record of the proceedings unless excused by agreement of the parties."  Id.  The record
establishes that appellant filed a pretrial motion with the court to direct the court reporter to record
all proceedings.  Thus, it is clear that the parties made no agreement to excuse the court reporter from
her obligation to make a full record of all the proceedings, and that her failure to do so without the
parties' constitutes error.
	Although the court reporter's failure to record bench conferences and the court's
communication with the jury may be violations of Texas practice rules, they are procedural defects
that must be disregarded unless they affect appellant's substantial rights.  See Johnson v. State, No.
03-01-00460-CR, slip op. at 4, 2002 Tex. App. LEXIS 2726, at *5 (Tex. App.--Austin Apr. 18,
2002, no pet. h.) (to be published).  An error affects appellant's substantial rights if it has a
"substantial and injurious effect or influence in determining the jury's verdict."  King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776
(1946)).  Because appellant does not claim that the reporter's failure to record the bench conferences
or the proceedings related to the written communication with the jury affected her substantial rights,
and our review of the record fails to disclose that they did, we overrule appellant's fifth and sixth
issues.
	Appellant's seventh issue challenges the validity of the district court's jury charge. 
Appellant does not complain that the district court's charge misapplied the law to the facts, but urges
that the district court's legal definition of "possession" was wrong, confusing, and injured her rights. 
The State responds that appellant's contention is without merit because the district court drafted the
charge using a leading form book on Texas pattern jury charges.  See W. Scott Carpenter & Paul J.
McClung, Texas Criminal Jury Charges § 12:1060 (2000).  Texas Code of Criminal Procedure
article 36.19 prescribes the manner in which jury charge error is reviewed on appeal.  Tex. Code
Crim. Proc. Ann. art. 36.19 (West 1981); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996).  An appellate court must determine whether error exists in the jury charge and, if so, whether
such error caused harm sufficient to require reversal.  Hutch, 922 S.W.2d at 170-71.  The party
alleging a charging error bears the burden of persuading the reviewing court that the erroneous
charge resulted in some actual harm; absent a showing of actual harm, reversal is improper.  Abdnor
v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994).  The only argument appellant makes
regarding harm is that the district court's charge did not track the language of Texas Health and
Safety Code section 481.002. (10)
 See Tex. Health & Safety Code Ann. § 481.002(38) (West Supp.
2002).  Appellant's general assertion that the charge injured her rights because her trial strategy "was
to admit that controlled substances were seized from the house" fails to establish that the proffered
charge harmed her in any manner; thus, appellant failed to meet her required showing.  We overrule
her seventh issue.

CONCLUSION
	Having overruled appellant's issues, we affirm the district court's judgment.


  
					Jan P. Patterson, Justice
Before Justices Kidd, B. A. Smith and Patterson
Affirmed
Filed:   June 13, 2002
Do Not Publish
1. 	At trial, the officer who obtained the warrant testified that a confidential informant told him
that, in addition to Sesario, appellant might be involved in selling drugs.  Appellant does not
challenge the legality of the search warrant.
2. 	Appellant was at work when police executed the search warrant.
3. 	According to the testimony at trial, corner bags are made by cutting corners off of plastic
sandwich-type bags.  Drug dealers then package and sell controlled substances, such as cocaine, by
placing the substance in the corner of the bag and heat sealing it closed.
4. 	Officers at trial testified that finger scales are commonly used for weighing marihuana.
5. 	Sesario later pleaded guilty to possession with intent to distribute cocaine.
6. 	At trial, appellant stipulated that the substances recovered from her residence were
controlled substances.
7. 	Appellant and her son both testified as defense witnesses.
8. 	At trial, appellant testified that her house has two bedrooms and two bathrooms.  The
evidence established that appellant's bedroom (the master bedroom) and the master bathroom are
connected.
9. 	The note from the jury and the court's response appear in the clerk's record but not the
reporter's record.
10. 	The challenged jury charge reads:

"Possession" means actual care, custody, control or management.  Possession
is a voluntary act if the possessor knowingly obtains or receives the thing
possessed or is aware of his control of the thing for a sufficient time to permit
him to terminate his control.
See Tex. Health & Safety Code Ann. § 481.002(38) (West Supp. 2002); W. Scott Carpenter & Paul
J. McClung, Texas Criminal Jury Charges § 12:1060 (2000).
