Kimberly Elizabeth Briscoe v. the State of Texas ( 2022 )

NUMBER 13-20-00445-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KIMBERLY ELIZABETH BRISCOE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Refugio County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Tijerina, and Silva
Memorandum Opinion by Justice Silva
Appellant Kimberly Elizabeth Briscoe appeals her conviction of possession of a
controlled substance, namely, methamphetamine, in the amount of one gram but less
than four grams, a third-degree felony enhanced to a second-degree felony based on a
prior felony conviction. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(4), 481.115(c);
TEX. PENAL CODE ANN. § 12.42(a). By two issues which we construe as one, Briscoe
challenges the sufficiency of the evidence supporting her conviction. We affirm.
I. BACKGROUND
Refugio County Sheriff’s Office (RCSO) Deputy Leonardo Tijerina testified that on
February 10, 2020, while on patrol, he stopped a small, two-door vehicle at approximately
2:30 a.m. for driving on an improved shoulder. The driver of the vehicle identified herself
as Trincia Beene but would not provide the officer with a driver’s license or other
identification card. After providing Beene’s name to dispatch, Deputy Tijerina discovered
that she had an active warrant. Deputy Tijerina detained Beene. Officer Javier Ontiveros
with the Refugio Police Department (RPD) arrived thereafter to assist with the stop.
Deputy Tijerina then began speaking with Briscoe, who was sitting in the front
passenger seat of the vehicle. Briscoe identified herself and provided a Texas
identification card to Deputy Tijerina but did not have a valid driver’s license. A third
individual, subsequently identified as Tracey Pelletier, was in the back seat. RCSO
Deputy Tyler Roy also arrived on scene to assist with the stop. Initially, Pelletier only
provided his first name to the officers and refused to provide his last name or any other
information. Eventually, Briscoe identified Pelletier’s last name for the officers. Deputy
Roy testified that though Briscoe identified Pelletier as her boyfriend, she “wasn’t a
hundred percent forthcoming” in providing his name. The officers ran Pelletier’s name
through dispatch and discovered that he had an active warrant. As the officers attempted
to arrest Pelletier, he became combative, pushing the officers away, until officers
ultimately utilized a Taser to subdue him.
After Pelletier was arrested, Deputy Roy and Officer Ontiveros conducted an
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inventory search of the vehicle. On the driver’s side of the vehicle, Deputy Roy discovered
a lockbox disguised as a new English dictionary that contained approximately 3.5 grams
of methamphetamine, a digital scale, additional used baggies, and three “glass pipes that
are commonly used to smoke methamphetamine.”
“[L]ocated on the floorboard just right under the right front passenger seat,” where
Briscoe had been seated, Deputy Roy found a “black zipper pouch” holding “[a] one-by-
one [inch] baggy containing what [he] believe[d] to be crystal methamphetamine.” The
black pouch also contained a “torch lighter” which is “used to heat the bowl of [a] pipe to
make the methamphetamine go to a vapor.” According to Deputy Roy, the black pouch
was located where Briscoe’s feet would have been, and he did not need to reach under
the seat to retrieve it. Additionally, Deputy Roy stated that the baggy containing
methamphetamine in the black pouch was the same as the baggies found on the driver’s
side. Deputy Roy testified that when he exited the vehicle with the pouch, Briscoe said,
“That’s not mine,” a few times. Deputy Roy notified Deputy Tijerina of the contraband, for
which Deputy Tijerina placed Briscoe under arrest and transported her to the sheriff’s
office. Deputy Tijerina agreed that Briscoe was cooperative, respectful, and obedient
during the encounter.
Officer Ontiveros testified that Briscoe never inquired as to the contents of the
pouch, but she claimed Deputy Roy “planted” the evidence on her. Deputy Roy similarly
testified that Briscoe did not ask what the substance was upon learning that the black
pouch contained a controlled substance. On recall, Deputy Roy further testified that he
did not submit any of the evidence for fingerprint testing. Deputy Roy agreed that neither
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Briscoe nor the other individuals in the vehicle appeared intoxicated or otherwise under
the influence of any substance.
Texas Department of Public Safety forensic scientist Chandler Ferguson testified
that she weighed the various amounts of the crystalline substance and concluded that the
amount found under Briscoe’s seat weighed 0.31 grams. Ferguson further testified that
she determined the substance to be methamphetamine through laboratory testing.
Ferguson then tested 1.29 grams of the crystalline substance retrieved from the driver’s
side of the vehicle and determined the substance was also methamphetamine. Ferguson
testified that both amounts of methamphetamine were found in similar green baggies.
The jury found Briscoe guilty. During the punishment phase, Briscoe pleaded true
to the enhancement paragraph, and the jury sentenced her to twelve years’ confinement
and a $5,000 fine. This appeal followed.
II. STANDARD OF REVIEW
“The Constitution prohibits the criminal conviction of any person except upon proof
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979) (citing
In re Winship, 397 U.S. 358, 361 (1970)). When reviewing the sufficiency of the evidence,
we “view[] the evidence in the light most favorable to the prosecution,” to determine
whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319; Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (adopting the standard of review for a sufficiency challenge as set out by
Jackson). When a reviewing court views the evidence in the light most favorable to the
verdict, it “is required to defer to the jury’s credibility and weight determinations because
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the jury is the sole judge of the witnesses’ credibility and the weight to be given their
testimony.” Brooks, 323 S.W.3d at 899. “[A] factfinder may disbelieve some or all of a
witness’s testimony, even when that testimony is uncontradicted.” Hernandez v. State,
161 S.W.3d 491, 501 (Tex. Crim. App. 2005).
“Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004)). Juries may “draw multiple reasonable inferences as long
as each inference is supported by the evidence presented at trial.” Hooper, 214 S.W.3d
at 15. If the record supports conflicting inferences, we presume that the factfinder
resolved the conflict in favor of the prosecution and defer to that resolution. Garcia v.
State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 899.
“However, juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions.” Hooper, 214 S.W.3d at 15. “[A]n
inference is a conclusion reached by considering other facts and deducing a logical
consequence from them” while “[s]peculation is mere theorizing or guessing about the
possible meaning of facts and evidence presented.” Id. at 16. “[T]he mere existence of an
alternative reasonable hypothesis does not render the evidence . . . insufficient.”
Villarreal Lopez v. State, 267 S.W.3d 85, 98 (Tex. App.—Corpus Christi–Edinburg 2008,
no pet.) (quoting Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.—Dallas 1998, no
pet.)); see Jenkins v. State, 493 S.W.3d 583, 601 n.36 (Tex. Crim. App. 2016) (quoting
Geesa v. State, 820 S.W.2d 154, 157–61 (Tex. Crim. App. 1991), overruled on other
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grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000)) (“[W]e will not
usurp the role of the fact[]finder by factoring into our sufficiency analysis an alternative
‘hypothesis inconsistent with the guilt of the accused.’”).
Sufficiency of the evidence is measured against the elements of the criminal
offense as defined by state law. Fuller v. State, 73 S.W.3d 250, 252–53 (Tex. Crim. App.
2002) (citing Jackson, 443 U.S. at 324 n.16). However, review of the “[s]ufficiency of the
evidence should be measured by the elements of the offense as defined by the
hypothetically correct jury charge for the case.” Garcia, 367 S.W.3d at 687 (quoting Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury
charge “accurately sets out the law and adequately describes the offense for which the
defendant was tried without increasing the State’s burden of proof or restricting the State’s
theories of liability.” Hooper, 214 S.W.3d at 14 (citing Malik, 953 S.W.2d at 240).
III. APPLICABLE LAW
The elements of the offense of possession of a controlled substance as charged
are (1) the defendant; (2) knowingly or intentionally; (3) possessed; (4) at least one gram
but less than four grams of a controlled substance. TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a), (c); Allen v. State, 249 S.W.3d 680, 689 (Tex. App.—Austin 2008, no pet.).
“‘Possession’ means actual care, custody, control, or management.” TEX. PENAL CODE
ANN. § 1.07(a)(39). Thus, “[t]o support a defendant’s conviction as a principal actor, the
State had to prove the defendant ‘knowingly possessed’ the contraband, which requires
proof that the defendant (1) exercised ‘actual care, custody, control, or management’ over
the substance and (2) knew the substance was contraband.” Espino-Cruz v. State, 586
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S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (citing TEX. HEALTH &
SAFETY CODE ANN. § 481.002(38)); see also Romero v. State, No. 13-20-00103-CR, 2021
WL 1045804, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 18, 2021, no pet.) (mem.
op., not designated for publication).
The State must prove that the defendant’s connection with the contraband “was
more than fortuitous”; in other words, “[m]ere presence at the location where drugs are
found is . . . insufficient, by itself, to establish actual care, custody, or control of those
drugs.” Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Further, the
defendant’s knowledge of the presence of the contraband is not sufficient to establish
joint possession without other links. Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.—
Corpus Christi–Edinburg 2002, pet. ref’d) (citing Oaks v. State, 642 S.W.2d 174, 177
(Tex. Crim. App. 1982)). “[E]vidence which affirmatively links [the defendant] to [the
contraband] suffices for proof that [she] possessed it knowingly.” Barbosa v. State, 537
S.W.3d 640, 645 (Tex. App.—San Antonio 2017, no pet.); see also Romero, 2021 WL
1045804, at *4.
The defendant does not need to be in exclusive possession of the contraband—a
factfinder may otherwise infer that the defendant knowingly or intentionally possessed the
contraband if sufficient facts and circumstances support the inference of possession. Tate
v. State, 500 S.W.3d 410, 413–414 (Tex. Crim. App. 2016). The Texas Court of Criminal
Appeals has compiled a non-exhaustive list of factors which may indicate a link
connecting the defendant to the knowing possession of contraband:
(1) the defendant’s presence when a search is conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the
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accessibility of the narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed
other contraband or narcotics when arrested; (6) whether the defendant
made incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made furtive gestures;
(9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant
owned or had the right to possess the place where the drugs were found;
(12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of
guilt.
Id. at 414 (quoting Evans, 202 S.W.3d at 162 n.12). “Although these factors can help
guide a court’s analysis, ultimately the inquiry remains that set forth in Jackson . . . .” Id.(citing Jackson, 443 U.S. at 318–19). Further, it is “not the number of links that is
dispositive, but rather the logical force of all of the evidence, direct and circumstantial.”
Evans, 202 S.W.3d at 162. “[J]uries trump both trial and appellate judges on weight-of-
evidence determinations.” Id. at 164 (citing Jackson, 443 U.S. at 326).
IV. ANALYSIS
Briscoe challenges her conviction by asserting (1) that the evidence was
insufficient to support a finding that she knowingly or intentionally possessed any
methamphetamine; and (2) if the evidence was sufficient to support knowing or intentional
possession, the evidence was insufficient to establish that she possessed more than one
gram of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(4),
481.115(c).
We begin by noting that the cumulative force of the evidence could have clearly
led a rational juror to believe that the 0.31 grams of methamphetamine found in the black
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pouch belonged to Briscoe. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912.
Briscoe was not merely present where the black pouch was found—she was in close
proximity to it as it was found by the seat she occupied. See Tate, 500 S.W.3d at 414(assessing the appellant’s proximity to and accessibility of the contraband as a factor).
More precisely, Deputy Roy testified that the pouch was directly under Briscoe’s feet, and
he did not need to reach under the seat to access it. See id. Although Briscoe denied
ownership of the pouch, when notified that it contained a controlled substance, she did
not inquire into what the substance was. Thus, a rational jury could have disbelieved
Briscoe’s denial of ownership and concluded that she was aware and in control of the
contraband inside the pouch. See Hernandez, 161 S.W.3d at 501 (“[A] factfinder may
disbelieve some or all of a witness’s testimony, even when that testimony is
uncontradicted.”). “[T]he mere existence of an alternative reasonable hypothesis,” that
the pouch and contraband belonged to the driver, Beene, “does not render the
evidence . . . insufficient.” See Villarreal Lopez, 267 S.W.3d at 98; Jenkins, 493 S.W.3d
at 601 n.36; see also Espino-Cruz, 586 S.W.3d at 543 (observing that “[c]ontrol over the
contraband may be exercised by more than one person”).
Furthermore, several factors support finding an affirmative link between Briscoe
and the methamphetamine: she was present when the search was conducted, was in
close proximity to the remainder of the contraband and where additional contraband and
paraphernalia were located, such as the three glass pipes, and her assertion that Deputy
Roy planted the lesser amount of methamphetamine could be construed as an indication
of a consciousness of guilt. See Tate, 500 S.W.3d at 414. The presence of three glass
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pipes commonly used to smoke methamphetamine, several baggies of
methamphetamine, and additional used baggies where three individuals were present
supports an inference that the group had smoked or intended to smoke the
methamphetamine together. See Hooper, 214 S.W.3d at 15. Additionally, the fact that
both amounts of methamphetamine were found in similar green baggies supports an
inference that the two amounts shared common ownership. See id.Although Briscoe contends that the methamphetamine was not in plain view, no
one appeared to be under the influence of narcotics, she did not make any incriminating
statements, and she was not found with a lot of cash, “the absence of certain links do[es]
not weigh against those that are present.” See Ferguson v. State, 313 S.W.3d 419, 426
(Tex. App.—Houston [1st Dist.] 2009, no pet.); see also Maldonado v. State, No. 13-12-
00586-CR, 2015 WL 4381067, at *4 (Tex. App.—Corpus Christi–Edinburg July 16, 2015,
no pet.) (mem. op., not designated for publication) (“[I]t is well established that the
absence of certain links do[es] not weigh against those that are present.”); Davenport v.
State, No. 13-17-00363-CR, 2019 WL 613275, at *6 (Tex. App.—Corpus Christi–
Edinburg Feb. 14, 2019, pet. ref’d) (mem. op., not designated for publication) (concluding
sufficient affirmative links present despite several missing links and drugs being found
inside another passenger’s genitals); Larios v. State, No. 13-15-00022-CR, 2015 WL
9487107, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2015, no pet.) (mem. op.,
not designated for publication) (holding the jury could have concluded the absence of
some affirmative links was attributed to the appellant being “careful and collected in the
way she pursued her task”).
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We are limited to determining whether under the evidence presented, viewed in a
light most favorable to the prosecution, any reasonable juror could have concluded that
Briscoe knowingly or intentionally exercised actual care, custody, or control, over the
aggregate amount of methamphetamine. See Jackson, 443 U.S. at 326; Espino-Cruz,
586 S.W.3d at 543; TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c); TEX. PENAL CODE
ANN. § 1.07(a)(39). When measured by the elements of a hypothetically correct jury
charge, the evidence was legally sufficient such that a rational juror could have concluded
that Briscoe knowingly or intentionally possessed at least one gram of methamphetamine.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c); TEX. PENAL CODE ANN.
§ 1.07(a)(39); Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. Briscoe’s sole issue
is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
10th day of March, 2022.
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