                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-18-00262-CR


                          RUDY NAVARRO PENA, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 100th District Court
                                    Carson County, Texas
                   Trial Court No. 6455, Honorable Stuart Messer, Presiding


                                       July 31, 2019

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


      Appellant Rudy Navarro Pena appeals from his conviction by jury of the second-

degree offense of possession of a prohibited substance in a correctional facility 1 and the




      1   TEX. PENAL CODE ANN. § 38.11(d)(1) (West 2011).
resulting sentence of sixteen years of imprisonment.2 Through this appeal, appellant

challenges the sufficiency of the evidence supporting his conviction. We will affirm.


                                       Background


       Appellant’s indictment alleged he “intentionally or knowingly, possess[ed] a

controlled substance, namely methamphetamine, while in the Carson County Jail, a

correctional facility.”


       At trial, officers testified appellant was apprehended on a parole warrant. Appellant

was not cooperative during the apprehension and police used a taser to subdue and

restrain him. The officers checked appellant’s person for weapons. None were found.

No further search was conducted, and appellant was not asked whether he had any

contraband on his person. He was then transported to the Carson County jail.


       While appellant was changing clothes at the jail, one of the officers saw a clear

baggy with a crystalized substance, later identified as methamphetamine, fall out of

appellant’s sock. The officer also found a clear glass pipe in the shoe appellant was

wearing when he entered the jail.


       Appellant testified, explaining to the jury that he was “high out of [his] mind” on

methamphetamine when the officers apprehended him. He admitted he had “dope” and

that the glass pipe was in his shoe. But, he told the jury, the clear baggy “doesn’t look


       2 TEX. PENAL CODE ANN. § 12.33 (West 2011). A second-degree felony is
punishable by imprisonment for any term of not more than twenty years or less than two
years and a fine not to exceed $10,000. At the punishment stage of the hearing, the State
sought enhancement of appellant’s punishment and presented evidence showing
appellant had been previously convicted of another felony offense. See TEX. PENAL CODE
ANN. § 12.42 (West 2011) (providing penalties for repeat and habitual felony offenders).

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like the baggy” he had and he didn’t “remember having any on [him]” when he was taken

to the jail. He said that he thought he “got rid” of the “dope” before he was tased by the

officers. He testified he did not “intentionally and knowingly” have “anything on me but

that pipe” at the jail. He told the jury the baggy “came out of [the officer’s] hand. Not out

of my socks.”


       The jury found appellant guilty as charged in the indictment.         Appellant also

testified during the punishment phase, telling the jury that he had the methamphetamine

“in [his] pocket” but the officers “never checked me right.” The jury sentenced appellant

to imprisonment for a term of sixteen years.


       On appeal, appellant argues that the evidence presented was insufficient to show

he intentionally and knowingly possessed the methamphetamine in a correctional facility.


                                          Analysis


       Appellant argues he did not voluntarily possess the methamphetamine in the jail

because: (1) he was tased, which affected his mental condition and voluntariness of his

actions, and (2) because appellant was never afforded the opportunity to inform officers

that he was in possession of contraband prior to entering the Carson County Jail. We do

not find appellant’s arguments persuasive.


       We review the sufficiency of the evidence under the standard set forth in Jackson

v. Virginia. 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.

Crim. App. 2010) (plurality op.). Under that standard, a reviewing court must consider all

the evidence in the light most favorable to the verdict and determine whether a rational

trier of fact could have found the essential elements of the crime beyond a reasonable

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doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citations omitted);

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (citations omitted). The jury

is the sole judge of the weight and credibility of the evidence and we presume the

factfinder resolved any conflicting inferences in favor of the verdict and defer to that

resolution.   Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citation

omitted).


       To prove the offense of unlawful possession of a prohibited substance in a

correctional facility, the State must prove appellant “possess[ed] a controlled substance

or dangerous drug while in a correctional facility or civil commitment facility or on property

owned, used, or controlled by a correctional facility[.]” TEX. PENAL CODE § 38.11(d)(1).


       Under section 6.01(a) of the Penal Code, a person commits an offense “only if he

voluntarily engages in conduct, including an act, an omission, or possession.” TEX. PENAL

CODE Ann. § 6.01(a) (West 2011). 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.”      TEX. PENAL CODE ANN.

§ 6.01(b) (West 2011).      Conduct does not become involuntary simply because an

accused does not intend the result of his conduct. Rogers v. State, 105 S.W.3d 630, 638

(Tex. Crim. App. 2003) (citing Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App.

1993)).


       Appellant’s analysis focuses on the concept of voluntariness and begins with

Brown v. State, 89 S.W.3d 630 (Tex. Crim. App. 2002), in which the defendant Brown

handed a deputy some marijuana from his pocket as he was being processed for booking



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into jail. Brown argued he did not voluntarily bring the marijuana into the facility because

he arrived in handcuffs. The Court of Criminal Appeals rejected the contention, clarifying

that the term “voluntariness” refers “only to one’s physical bodily movements” and that

the term “voluntarily” means “the absence of an accidental act, omission or possession.”

Id. at 633 (citations omitted); see Rogers, 105 S.W.3d at 638.


       Appellant attempts to distinguish Brown by pointing out the defendant there was

given the opportunity to tell the officers he had contraband on his person before he

entered the correctional facility. Appellant argues he, by contrast, was subjected to tasing

and “whisked away to jail after a cursory search of his person for weapons.” He contends

his possession of the methamphetamine “ceased to be voluntary” as the result of those

circumstances.


       We find the argument is a misapplication of the voluntariness requirement. As the

Court of Criminal Appeals has observed concerning voluntariness:


       [B]efore criminal responsibility may be imposed, the actor’s conduct must
       “include[ ] either a voluntary act or an omission when the defendant was
       capable of action.” The operative word under Section 6.01(a), for present
       purposes, is “include.” Both the Model Penal Code comments and the
       Practice Commentary to the 1974 Texas Penal Code stress that the
       “voluntary act” requirement does not necessarily go to the ultimate act (e.g.,
       pulling the trigger), but only that criminal responsibility for the harm must
       “include an act” that is voluntary (e.g., pulling the gun, pointing the gun, or
       cocking the hammer).

Farmer v. State, 411 S.W.3d 901, 905-06 (Tex. Crim. App. 2013) (quoting Rogers, 105

S.W.3d at 638). See also Rhoades v. State, No. 07-13-00319-CR, 2015 Tex. App. LEXIS

9665, at *19-20 (Tex. App.—Amarillo Sept. 15, 2015, pet. dism’d) (mem. op., not

designated for publication) (similar discussion).


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       In his guilt-innocence testimony, appellant told the jury he was “high” on the

methamphetamine when apprehended, and made statements acknowledging he “had”

“dope” and possessed the glass pipe. Although he also made contradicting statements,

in its evaluation of his testimony any reasonable finder of fact could determine without

difficulty that appellant’s possession of the methamphetamine was voluntary. Nothing

about the evidence of his possession of the substance suggests any involuntariness of

appellant’s physical bodily movements related to his possession. See Brown, 89 S.W.3d

at 633. See also Castillo v. State, No. 07-06-0027-CR, 2007 Tex. App. LEXIS 766, at *6-

8 (Tex. App.—Amarillo Jan. 31, 2007, pet. ref’d) (mem. op., not designated for

publication) (similar analysis).


       With respect to appellant’s physical presence in the Carson County jail, we find

also that the Brown opinion disposes of any notion that a separate “voluntariness”

requirement applies to a person brought into jail through arrest. Brown, 89 S.W.3d at

633. The court there made clear its rejection of a “broad definition of voluntary that would

incorporate a concept of free will.” See id.


       Nor can we accept appellant’s contention his tasing and the absence of any inquiry

by officers of his possession of contraband before he entered the jail affected the

voluntariness of his possession of the drug in the jail. Appellant argues the tasing

“affected his mental condition and thus the voluntariness of [his] actions.”        Brown,

however, recognizes that the voluntariness of a person’s conduct or movement is

separate from his mental state. Brown, 89 S.W.3d at 633 (citation omitted).

Consequently, appellant’s mental state is not part of the voluntariness analysis here.



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      For these reasons, we resolve appellant’s issue against him.


                                      Conclusion


      Having overruled appellant’s sole issue, we affirm the judgment of the trial court.




                                                       James T. Campbell
                                                          Justice


Do not publish.




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