NO. 07-09-0057-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A FEBRUARY 18, 2010

__________________ ____________ TAMMY DIANE RYALS, APPELLANT V. STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 223 rd DISTRICT COURT OF GRAY COUNTY; NO. 7152; HONORABLE LEE WATERS, JUDGE

__________________ _____________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Tammy Diane Ryals, was charg ed by indictment wit h the third degree felony offense of possessing a prohibited substance in a correctional facility. 1 A jury found her guilty and assessed s entence at three years confinement. By one issue,

1 Tex. Penal Code Ann. ' 38.11(d)(1) (Vernon Supp. 2009).2 Appellant contests the legal sufficiency of the evidence to sustain the conviction. We affirm. Background On January 26, 2005, Appellant was being detained in a general holding cell at the Gray County jail. While taking holding cell inmates out of the cell one at a time for the purpose of allowing them to make te lephone calls, Jamie Schlabs, an employee of the Gray County Sheriff's Department, wa s handed a note reading "Tammy Ryals has crack." She was also verbally informed that the crack was in a styrofoam cup. Schlabs returned the inmate to the holding cell and i mmediately collected all the styrofoam cups. Schlabs testified that as she picked up the cups, Appellant's demeanor changed and she became "fidgety." An examination of the cups revealed that one cup contained a folded piece of pink paper, which was iden tified as paperwork coming from Appellant's arraignment. Inside that paperwork, Schlab s found a wad of tissue paper, and inside that tissue paper she found a whit e powder, later chemically identified as cocaine. When asked what the substance was, Appella nt responded that it "was aspirin for her teeth." Appellant was subs equently charged and convict ed of possessing a prohibited substance, to-wit: cocaine, in a correctional facility.3 Standard of Review Appellant contends the evidence was legally insufficient to establish that she knew the substance was cocaine. Evidence is legally insu fficient if, when viewed in a light most favorable to the prosecution, any rational trier of fact could not have found each element of the offens e beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Laster v. State , 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). This st andard is the same in both direct and circumstantial evidence cases. Id. 275 S.W.3d at 517-18. Legal sufficiency of the evidence to sustain a conviction is measured by the elements of the offense as defined by a hypot hetically correct jury charge. Malik v. State , 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). This is done by considering all the evidence that was before the jury

C whether proper or improper

C so that we can make an assessment from t he jury's perspective. Miles v. State , 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). As an appellate court, we sit as a final, due process safeguard, ensuring only the rationality of the factfi nder, and we must uphold the jury's verdict unless it is found to be irrational or unsupported by more than a A mere modicum @ of evidence. Moreno v. State , 755 S.W.2d 866, 867 (Tex .Crim.App. 1988).4 Analysis As per the indictment in this case, the State was required to prove that Appellant knowingly or intentionally possessed a controlled subst ance, namely cocaine, in a correctional facility, namely the Gray County Jail. To prove possession, the State was required to show that Appellant (1) exercised A actual care, custody, control, or management @ of the substance and (2) knew t he matter possessed was contraband. See ' 481.002(38). See also Tex. Penal Code Ann. ' 1.07(39) (Vernon Supp. 2009); Poindexter v. State, 153 S.W.3d 402, 405-06 (T ex.Crim.App. 2005). Knowledge that the matter possessed wa s contraband may be inferred from the acts, words, or conduct of the accused. Grant v. State, 989 S.W.2d 429, 433 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Links used to establish care, custody, control or management of the matter can likewise be used to est ablish knowledge of the nature of the substance. When, as here, the accus ed does not have actual ph ysical possession of the controlled substance when seized, it c annot be concluded or presumed that the accused had possession over the substanc e unless there are independent facts or circumstances that tend to connect or link 2 the accused to the knowing possession of the contraband. Evans v. State, 202 S.W.3d 158, 161-62 (T ex.Crim.App. 2006). Numerous nonexclusive factor s have been recognized as contributing to an evaluation

2 The Court of Criminal Appeals has recognized t hat the term "affirmative" adds nothing to the plain meaning of "link" and now uses only the wo rd "link" to evaluate evidence of possession. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006).5 of whether an accused is linked to the contraband. See Triplett v. State, 292 S.W.3d 205 (Tex.App.--Amarillo 2009, pet. ref'd). Those factors include: (1) whether the contraband was recovered from a place or thing under the control of the accused; (2) whether the contraband was co nveniently accessible to the accused; (3) whether the conduct of the accused indicated conscious ness of guilt; and (4) whether the accused made any incriminat ing statements. Id. at 209. Here, several factors tended to link Appellant to the knowing care, custody, control, or management of t he contraband. First, the note and verbal information given to Schlabs established that the note-writer was aware the substance was not only present, but that it was cocaine. From this evidence, a reasonable factfinder could presume that the note-writer learned this information from Appellant. Secondly, the contraband was discovered in a styrofoam cup, wrapped in tissue paper, and placed inside Appellant's folded-up arraignment papers. The secretion of a substance can be circumstantial evidence that the person who placed the subs tance in that location was attempting to avoid its discove ry and was, therefore, awar e of its illegal nature. Furthermore, upon being asked to identify t he substance, Appellant acknowledged not only consciousness of its presence but also contro l by stating that it was for her teeth. Finally, the fact that Appellant became fidgety is some evidence of her consciousness of the illegal nature of the substance.6 Based upon these facts, viewing the eviden ce in the light most favorable to the verdict, we conclude the evidence is legally su fficient to support the ju ry's implied finding that Appellant exercised "actual care, custody, control, or management" of the substance and knew the matter possessed was contraband. Appel lant's issue is overruled.

Conclusion Accordingly, the trial cour t's judgment is affirmed.

Patrick A. Pirtle Justice Do not publish.