Opinion
No. 05-06-00444-CR
Opinion issued July 16, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 382nd District Court, Rockwall County, Texas, Trial Court Cause No. 2-05-453.
Before Justices Wright, Bridges, and Mazzant.
OPINION
Margaret Haney appeals her possession of a controlled substance conviction. A jury convicted appellant, and the trial judge sentenced her to two years' confinement in state jail, probated for five years, and a $1500 fine. In two issues, appellant argues the evidence is legally and factually insufficient to support her conviction, and the trial court erred in assessing punishment. We affirm the trial court's judgment. Around midnight on July 15, 2006, Rockwall police officer Ben Klutts approached appellant's car parked in the fire lane outside Wal-Mart. Klutts ran a check on appellant's driver's license, and it showed appellant had multiple warrants for her arrest. Klutts arrested appellant and placed her in the back of his patrol car. Klutts then searched the car and found a purse in the front passenger seat of appellant's car. Appellant stated the purse and all of its contents belonged to her. Inside the purse, Klutts discovered a small baggie of methamphetamine inside a wallet. A jury subsequently convicted appellant of possession of a controlled substance, and this appeal followed. In her first issue, appellant argues the evidence is legally and factually insufficient to support her conviction. Specifically, appellant complains "an unusual amount of confusion and conflict exists in the record" on the issue of how easy it was for Klutts to find the methamphetamine. As a result, appellant argues, the evidence does not prove beyond a reasonable doubt that she intentionally or knowingly possessed the methamphetamine. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Appellant argued at trial that the methamphetamine was planted in her purse by her ex-boyfriend. Appellant also testified she had "no idea how the drugs got in [her] purse." Klutts testified he approached appellant, who had been parked in the Wal-Mart fire lane for more than five minutes around midnight, ran a routine check on her driver's license, and arrested her on multiple outstanding arrest warrants. Klutts testified appellant said her purse and all its contents were hers. In the search subsequent to arrest, Klutts looked in appellant's wallet and found the baggie of methamphetamine "loosely placed there in plain view." On cross examination, Klutts testified the wallet compartment he was shown was where he found the baggie "the best I recall" but also testified "I believe when I opened it up, that's the point where I found it." We conclude that, from this evidence, the jury could have found beyond a reasonable doubt that appellant knowingly or intentionally possessed the baggie of methamphetamine inside her wallet. See Parker v. State, 192 S.W.3d 801, 805-06 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (evidence legally and factually sufficient to show possession of controlled substance where evidence showed cocaine was found in purse appellant acknowledged was hers). Under these circumstances, the evidence was legally and factually sufficient to support her conviction for possession of a controlled substance. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's first issue. In her second issue, appellant contends the trial court erred in assessing her punishment. Specifically, she argues she elected in writing prior to trial to have the jury assess punishment, and nothing in the record shows she waived that election. However, nothing in the record shows that appellant objected to the trial judge's assessment of punishment. In fact, the record shows that the trial judge, at the beginning of voir dire, stated without objection that "In this trial, the defendant has chosen to have the judge assess the punishment if, and only if, a verdict of guilty is first returned by you, the jury." At the conclusion of the guilt-innocence phase of trial, after the jury had returned its verdict, the trial judge excused the jury and again stated that "the defendant has elected to go to the Court for punishment." Both sides waived oral argument, and the trial judge assessed appellant's sentence without objection. Appellant subsequently filed a motion for new trial and obtained a hearing on her motion, but her only contention was that she received ineffective assistance of counsel. Where a defendant elects at the beginning of trial to have the jury assess punishment, it is presumed that such defendant agreed at the end of trial for the court to assess punishment where, as here, the court did so and no objection by either party appears in the record. Hackey v. State, 500 S.W.2d 520, 521 (Tex.Crim.App. 1973); Prudhomme v. State, 47 S.W.3d 683, 690 (Tex.App.-Texarkana 2001, pet. ref'd). Accordingly, we cannot conclude the trial judge erred in assessing punishment in this case. See Hackey, 500 S.W.2d at 521; Prudhomme, 47 S.W.3d at 690. We overrule appellant's second issue. We affirm the trial court's judgment.