                         NUMBER 13-18-00333-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CANDICE MARIE MYERS,                                                    Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                      On appeal from the County Court
                         of Navarro County, Texas.


                         MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria
         Memorandum Opinion by Chief Justice Contreras

      Appellant Candice Marie Myers appeals her conviction for possession of marijuana

under two ounces, a class B misdemeanor. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.121(b)(1). By two issues, Myers argues that: (1) there was insufficient evidence

that she possessed the marijuana, and (2) the trial court erred when it overruled her

hearsay objection. We affirm.
                                        I.    BACKGROUND1

        In September 2015, Myers was a passenger in a vehicle when it was pulled over

by Officer Armando Garcia. According to Garcia, he noticed the odor of marijuana as he

approached the car. Garcia radioed for back up and Officer Adrian Ornales responded

to the scene. Inside the vehicle, in a hair-gel container inside a white purse, Garcia found

1.5 grams of marijuana. Myers was charged with possession of marijuana under two

ounces. See id. She pleaded not guilty and proceeded to trial.

        At trial, Garcia testified there were multiple bags in the vehicle, including one white

purse. During his cross-examination, the following exchanged occurred:

        [Defense Counsel]:              Okay. You might check to see if there were, I
                                        don’t know, articles of clothing or any kind of
                                        articles that belong to a certain person because
                                        then you could associate that person with what
                                        you found in the bag; is that correct?

        [Garcia]:                       Yes, sir.

        [Defense Counsel]:              In this particular case, you didn’t do that, did
                                        you?

        [Garcia]:                       I believe at the end of the stop once the arrest
                                        was made.

        [Defense Counsel]:              Okay, so you looked in the bag to see if there
                                        was any ID in it?

        [Garcia]:                       No, I got confirmation.

During re-direct, Garcia testified the driver of the car informed him that the white purse

belonged to Myers. Myers objected to the testimony on hearsay grounds. The State

argued that Myers, by eliciting testimony from Garcia as to the ownership of the white

purse, thereby opened the door to the introduction of hearsay testimony from the driver,



        1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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who was an unavailable witness, as to the ownership of the purse. The trial court

overruled the objection.

       Ornelas testified he responded to Garcia’s call for back up. He stated he saw the

passenger in the car place a white purse in the back seat and wipe a “black gel-like

substance” off of her fingers as he approached the car. Ornelas testified the substance

he witnessed Myers wiping off her fingers looked like the gel inside the container in which

the marijuana was found.

       Myers testified she was the owner of a black purse located on the front passenger’s

side floorboard and denied that the marijuana and the white purse were hers. Myers

explained that the she, along with driver of the car, and other co-workers, had planned a

weekend trip to Dallas. According to Myers, the day before the trip, a fellow co-worker

dropped off the co-worker’s bag and luggage for the trip in the vehicle which was later

stopped by Garcia, and that everyone but Myers cancelled their plans to attend on the

day of the trip. Myers denied she was wiping black hair gel off her fingers during the

traffic stop and testified she instead was wiping off water she spilled on herself when the

car slowed down. According to Myers, the car did not smell like marijuana but did have

a “funky” smell.

       The jury found Myers guilty of the offense, and the trial court assessed punishment

at two years’ community supervision and a $500 fine. This appeal followed.

                                   II.   SUFFICIENCY

       By her first issue, Myers argues there is insufficient evidence that she possessed

the marijuana.




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A. Applicable Law and Standard of Review

       In determining whether the evidence was sufficient to support the conviction, we

must view the evidence in the light most favorable to the State to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The jury

is the sole judge of the credibility of the witnesses and the weight to be given to their

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

when the record indicates conflicting inferences, this court must presume that those

inferences were resolved in favor of the State. Wise, 364 S.W.3d at 903. This standard

is the same for both direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

307 (Tex. App.—Corpus Christi–Edinburg 2004, pet. ref’d) (citing Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997)). Under a hypothetically correct jury charge, a

person commits the class B misdemeanor offense of possession of marijuana if the

person knowingly or intentionally possesses a usable quantity of marijuana under two

ounces. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1). To prove the

requisite intent to possess, the State had to show that the appellant (1) exercised control,

management, or care over the substance in question and (2) that he or she knew that the

substance was contraband. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016);

see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing non-

exclusive factors that may indicate an “affirmative link” connecting the defendant to the

knowing possession of contraband). Mere presence at the location where drugs are

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found is insufficient, by itself, to establish actual care, custody, or control of those drugs.

Evans, 202 S.W.3d at 162. “However, presence or proximity, when combined with other

evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to establish

that element beyond a reasonable doubt.” Id.

B. Analysis

       Myers argues there were insufficient “links” between her and the marijuana. Here,

the marijuana was found in a hair-gel container inside a white purse in a car in which

Myers was a passenger. The marijuana was accessible and within close proximity to

Myers, and there was testimony from Garcia that the car smelled like marijuana. See

Tate, 500 S.W.3d at 414. Ornelas testified he saw Myers place a white purse in the back

seat and wipe a “black gel-like substance” off of her fingers. Ornelas explained that the

substance Myers was wiping off her fingers was consistent with the hair gel inside the

container where the marijuana was found. This evidence supports a conclusion that

Myers exercised care, control, and management over the marijuana. See TEX. HEALTH &

SAFETY CODE ANN. § 481.121(b)(1); Tate, 500 S.W.3d at 413; see also Sutton v. State,

343 S.W.2d 452, 454 (Tex. Crim. App. 1961) (“The duration or length of time the [drugs]

were under appellant’s control would not determine the question of her possession of the

same.”).

       Additionally, while Myers denied that the white purse and the marijuana belonged

to her, questions concerning the credibility of witnesses and the weight to be given to their

testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254

(Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence

is introduced, and we assume that the fact finder resolved conflicts in the evidence in

favor of the verdict and must defer to that resolution. Matchett v. State, 941 S.W.2d 922,

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936 (Tex. Crim. App. 1996). Here, the trier of fact was free to disregard Myers’s testimony

and believe Ornelas’s testimony. See Mosley, 983 S.W.2d at 254; Matchett, 941 S.W.2d

at 936. Therefore, viewing the evidence in the light most favorable to the verdict, we

conclude there was sufficient evidence establishing affirmative links between Myers and

the marijuana. See Wise, 364 S.W.3d at 903; Evans, 202 S.W.3d at 162 n.12. We

overrule Myers’s first issue.

                                     III.   HEARSAY

       By her second issue, Myers argues the trial court erred when it admitted hearsay

testimony from Garcia, which conveyed to the jury the driver’s out-of-court statement to

the officer that the white purse belonged to Myers. The State argues the testimony was

not used to prove Myers possessed the marijuana but rather to show why Garcia did not

attempt to identify the owner of any of the purses or bags through other means.

A.     Applicable Law and Standard of Review

       Hearsay is an out of court statement offered to prove the truth of the matter

asserted in the statement, and it is inadmissible unless otherwise provided by statute or

the rules of evidence. See TEX. R. EVID. 801(d), 802; Willover v. State, 70 S.W.3d 841,

845 (Tex. Crim. App. 2002). A limited exception to the hearsay rule enables testifying

officers to place their investigative actions into context. See Schaffer v. State, 777 S.W.2d

111, 114 (Tex. Crim. App. 1989). The State may offer out-of-court statements into

evidence without violating the hearsay rule to explain why the defendant became the

subject of an investigation. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.

1995). “An arresting officer should not be put in the false position of seeming just to have

happened upon the scene, he should be allowed some explanation of his presence and

conduct.” Schaffer, 777 S.W.2d at 114–15. Therefore, “testimony by an officer that he

                                             6
went to a certain place or performed a certain act in response to generalized ‘information

received’ is normally not considered hearsay because the witness should be allowed to

give some explanation of his [or her] behavior.” Poindexter v. State, 153 S.W.3d 402,

408 n.21 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466

S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015); see Sandoval v. State, 409 S.W.3d 259,

282 (Tex. App.—Austin 2013, no pet.).

       We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge

abuses his discretion when his decision falls outside the zone of reasonable

disagreement. Id. If the trial court’s evidentiary ruling is correct under any applicable

theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient

reason for the ruling. Id. The erroneous admission of evidence is non-constitutional error.

Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.); see Casey v.

State, 215 S.W.3d 870, 884–85 (Tex. Crim. App. 2007).             We disregard any non-

constitutional error as harmless unless the error affected appellant’s substantial rights.

TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

“We have construed this to mean that an error is reversible only when it has a substantial

and injurious effect or influence in determining the jury’s verdict.” Taylor v. State, 268

S.W.3d 571, 592 (Tex. Crim. App. 2008); see Barshaw, 342 S.W.3d at 93 (noting that an

appellate court “will not overturn a criminal conviction for non-constitutional error if the

appellate court . . . has fair assurance that the error did not influence the jury, or

influenced the jury only slightly”).

       In the case of the erroneous admission of evidence, we have said that the
       appellate court should consider everything in the record, including any
       testimony or physical evidence admitted for the jury’s consideration, the
       nature of the evidence supporting the verdict, the character of the alleged
                                           7
       error and how it might be considered in connection with other evidence in
       the case, the jury instructions, the State’s theory and any defensive
       theories, closing arguments, voir dire, and whether the State emphasized
       the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).

B.     Analysis

       Assuming, without deciding, that the trial court erred when it admitted the disputed

testimony, we conclude that any error was harmless.

       In this case, there was a muted video of the traffic stop introduced into evidence

which showed the events following the traffic stop. As previously noted, there was

testimony from Ornelas that he witnessed Myers place a white purse in the backseat and

that she was wiping a black gel-like substance off of her fingers as he approached the

passenger side of the vehicle. Garcia testified that, after he noticed the smell of marijuana

emanating from the car, he found marijuana inside a container of black-colored hair gel

inside a white purse in the back seat of the car. Ornelas testified that the gel-like

substance in the container appeared to be the same as the one Myers wiped off her

fingers. Myers was one of two individuals in the car, and the marijuana was in close

proximity and within her reach.

       Myers’s defensive theory was that she did not touch the white purse, did not have

any gel-like substance on her fingers, and did not know who the owner of the marijuana

was. Myers also denied the car smelled like marijuana. As emphasized in the State’s

closing arguments before the jury, whether Myers was the “owner” of the marijuana or the

purse were not essential to the resolution of the case; instead, the State merely needed

to prove that Myers exercised care, control, and management over it. To do this, the

State relied on Myers’s proximity to the marijuana and Ornelas’s statements that he saw

Myers place the white purse in the back seat and wipe a black gel-like substance off her
                                          8
fingers. Likewise, in voir dire, the State emphasized that ownership of the purse or the

marijuana was not essential to the resolution of the case and questioned the jury about

examples distinguishing ownership from possession.          The jury charge also did not

mention ownership but instead defined “possession” as “actual care, custody, control, or

management.” Finally, the State did not emphasize in any way the driver’s out of court

statement to Garcia that the purse belonged to Myers.

         After reviewing the entire record, we conclude the admission of the complained-of

statement did not have a substantial and injurious effect or influence in the jury’s verdict.

Taylor, 268 S.W.3d at 592; Rich, 160 S.W.3d at 577–78. We overrule Myers’s second

issue.

                                    IV.    CONCLUSION

         We affirm the trial court’s judgment.

                                                                DORI CONTRERAS
                                                                Chief Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of August, 2019.




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