Kimberly Bradley v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00024-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KIMBERLY BRADLEY, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Kimberly Bradley appeals her conviction and the sentence she received for possession of marihuana. In five issues, she challenges the admission of her statement to the police, the legal and factual sufficiency of the evidence to support her conviction, the exclusion of the statement of another person, and the sufficiency of the evidence to support her sentence. We affirm.

Background

Late one evening, City of Tyler police officers served a search warrant on an apartment rented by Appellant and Jason Cook. Appellant and Cook were in the apartment with their two year old son. Appellant was in her night clothes. The police found nine individually wrapped bags of marihuana and a scale in a backpack in the kitchen, forty one individually wrapped bags of marihuana in a shoe box in a closet, nearly thirty grams of cocaine wrapped in plastic in the mostly empty freezer, a small quantity of marihuana in a front shirt pocket of a man s shirt hanging in a closet, marihuana in a cigar wrapper in the bedroom, and a handgun and ammunition in the bedroom closet.

The closet with the forty one bags of marihuana also contained a woman s coat and toys and Christmas gifts appropriate for Appellant s son. Appellant admitted living in the apartment at least part of the time. She told a police officer that she knew about the marihuana in the backpack, but she had nothing to do with what was going on in the apartment. Cook told the police that the marihuana in the backpack was his and that it was for his personal consumption.

A Smith County grand jury indicted Appellant for the state jail felony offense of possession of marihuana in an amount of more than four ounces but less than five pounds. A jury convicted Appellant as charged, and the trial court assessed punishment at confinement for fourteen months and a fine of one thousand dollars. This appeal followed.

Motion to Suppress Evidence

In her first issue, Appellant asserts that the trial court erred when it denied her motion to suppress her statement to the police.

Standard of Review

  We review a trial court s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Our review is bifurcated, affording almost total deference to the trial court s determination of historical facts and reviewing de novo the trial court s application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The trial court is the exclusive finder of fact in a motion to suppress hearing and may choose to believe or disbelieve any or all of a witness s testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We sustain a trial court s decision on a motion to suppress if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Applicable Law

Texas law prohibits the admission of unrecorded oral statements made as a result of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22 3 (Vernon 2005). But not every question a police officer asks is an interrogation. Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990). Interrogation refers to words, actions, or questions that the questioner should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 1689 90, 64 L. Ed. 2d 297 (1980); Jones, 795 S.W.2d at 174 & n.3.

The test is principally an objective one focusing primarily on the perceptions of the subject, but questions normally attendant to arrest, custody, or administrative booking procedure do not constitute interrogation for purposes of article 38.22 or the Fifth Amendment to the U.S. Constitution. Innis, 446 U.S. at 301, 302 n.7, 100 S. Ct. at 1690 n.7; Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990); see also Cross v. State, 144 S.W.3d 521, 524 25 & n.5 (Tex. Crim. App. 2004); Jones, 795 S.W.2d at 174 n.3. The court of criminal appeals has acknowledged that the legal distinction between questioning which amounts to interrogation and questioning which is normally attendant to arrest and custody may not always be readily apparent. McCambridge v. State, 712 S.W.2d 499, 505 06 (Tex. Crim. App. 1986). Finally, statements that are volunteered and not in response to interrogation do not implicate either the Fifth Amendment or article 38.22. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966); Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984); see also Tex. Code Crim. Proc. Ann. art. 38.22 5.

Analysis

As the police were searching the apartment, Appellant was asked a series of questions including where she lived. Appellant responded that she lived in the apartment and then volunteered that what was going on in the apartment was none of her doing. The officer was unsure of what she meant by this and so he asked, What do you mean? Appellant responded that she knew about the marihuana in the backpack but nothing else. The trial court found that these questions were the normal and customary questions attendant to arrest and allowed the statement to be admitted even though it was not recorded and Appellant had not been read her statutory or constitutional rights.

In evaluating whether an interrogation has occurred, the officer s subjective intent is only partially relevant. See Innis, 446 U.S. at 301, 100 S. Ct. at 1690. In the present case, the officer s characterization of the reasons for the questioning was not entirely consistent. When the State asked the purpose of the questions, he responded: For merely one, intelligence; two for merely background intelligence, to try to figure out who the person was that was in there, who everybody was that was in there, where they lived, where they worked, just very generic questions. On the other hand, when asked if he was seeking incriminating information from Appellant, the officer stated that he was merely seeking to get the spelling of her name and determine where she lived and worked.

Objectively, the questioning was similar to the routine questioning attendant to an arrest. Appellant s statement that what was going on in the apartment was none of her doing was a volunteered response. The second, and more troubling exchange, is the officer s question What do you mean? and the answer acknowledging awareness of the marihuana. This question is closer to interrogation, and the response is less of a volunteered statement.

In general, the questions were book in questions to which Appellant spontaneously added additional information. The follow up question was not sufficiently pointed to transform the exchange into an interrogation. The trial court did not abuse its discretion to the extent that its ruling implicitly finds that the officer did not have the subjective intent to elicit an incriminating response. As to the question of whether the police officer should have known that his questions would evoke an incriminating response, we hold that the officer need not have anticipated, especially in the moment of the exchange, that his question would elicit incriminating information. The trial court did not abuse its discretion when it denied the motion to suppress. Appellant s first issue is overruled.

Sufficiency of the Evidence

In her second and third issues, Appellant argues that the evidence was legally and factually insufficient to show that she possessed the marihuana the police found in her apartment.

Standard of Review

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In reviewing factual sufficiency, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484 85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

In both legal and factual sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Applicable Law

To support a conviction for possession of marihuana, there must be evidence that (1) the accused exercised actual care, control, or custody of the marihuana; (2) she was conscious of her connection with it; and (3) she possessed a useable quantity of the marihuana knowingly or intentionally. See Tex. Health & Safety Code Ann. 481.121(a) (Vernon 2005); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Possession of any usable quantity of marihuana is an offense, but possession of more than four ounces but less than five pounds is a state jail felony. Tex. Health & Safety Code Ann. 481.121(b)(3) (Vernon 2005). The evidence used to prove these elements can be either direct or circumstantial. Brown, 911 S.W.2d at 747.

When the proof is circumstantial, the state must establish that the accused s connection to the substance was more than just fortuitous. Id. Furthermore, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).

Courts have recognized as many as seventeen nonexclusive factors that may be considered when evaluating affirmative links. The factors include 1) whether the contraband was in plain view or recovered from an enclosed place; 2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found; 3) whether the contraband was found in close proximity to the accused; 4) whether a strong residual odor of the contraband was present; 5) whether paraphernalia to use the contraband was in view or found on the accused; 6) whether the accused made incriminating statements connecting herself to the contraband; and 7) the quantity of the contraband. See Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App. Corpus Christi 2002, no pet.); see also Poindexter, 125 S.W.3d at 405 n.7.

Analysis Legal Sufficiency

Appellant did not possess marihuana on her person. Rather, the police found marihuana throughout the apartment she shared with Jason Cook. The police found marihuana in a bag near the kitchen, in a shirt pocket in a closet, in a box in a closet, and rolled into a cigar wrapper in the bedroom. They also recovered four scales and a substantial quantity of cocaine in the apartment. The police found the bulk of the marihuana in a closet near the front door that also contained clothing fitting Appellant and toys and Christmas gifts for her son. The officer testified that the smell of the marihuana was quite powerful once the door to the closet was opened.

Examining the evidence in the light most favorable to the jury s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant knowingly and intentionally possessed the marihuana in the apartment. The marihuana was found in a dwelling controlled by Appellant and was not inaccessible or completely hidden. The marihuana was in close proximity to the places Appellant would have been and in open view in some instances, there was a strong odor of the marihuana upon opening a closet that contained Appellant s clothing, and Appellant made a statement linking herself to some of the marihuana. Finally, the quantity of both the marihuana and cocaine in the apartment weighs in favor of an affirmative link. A person is not charged with knowledge of everything that happens to be in her home at every moment. But as the value of an item, especially a controlled substance, reaches into the thousands of dollars, it becomes increasingly unlikely that its presence is beyond the knowledge or the control of the person in command of the home. Such an inference is even stronger when, as here, the controlled substance is not well hidden. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict. Appellant s second issue is overruled.

Analysis Factual Sufficiency

Under a neutral review of the evidence, we reach the same conclusion. We have reviewed the record in its entirety. We are mindful that our evaluation must not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We also recognize that there is no set formula for finding an affirmative link, but rather affirmative links are considered in the totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [14th Dist.] 2001, pet. ref d).

Given the circumstances of this case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the marihuana in question was of greater consequence than the evidence not tending to so link Appellant. There are facts that weigh against the conviction. Appellant was not found to have marihuana on her person, and she denied knowing about the bulk of the marihuana in the apartment. Additionally, her mother testified that Appellant did not live in the apartment and only signed the lease agreement so that Cook could have a place to stay.

On the other hand, facts that weigh in favor of the conviction include the large quantity of the marihuana and the fact that it was found throughout the home, the presence of other controlled substances, the fact that Appellant was listed as a lessor of the apartment and signed a letter moving out after the arrest saying that it had been nice living in the apartment, and the presence of Appellant, her child, and her clothing and personal effects in the apartment at the time the police arrived.

Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s third issue is overruled.

Admission of Evidence

Appellant complains that the trial court improperly denied her request to introduce Jason Cook s hearsay statement that the marihuana in the backpack was for his personal use.

Applicable Law

  An out of court statement offered for the truth of the matter asserted is hearsay and inadmissible. Tex. R. Evid. 801(d), 802. However, Rule 803(24) provides an exception to the hearsay rule, as follows:

A statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Whether a statement is admissible in accordance with Rule 803(24) requires a two step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999). First, the trial court must determine whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must be shown that is sufficiently convincing to clearly indicate the trustworthiness of the statement. Id.; see also Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). The burden is on the party seeking admission of the statement to make this showing, and the test is not an easy one. Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994).

We review the trial court s decision to admit or exclude evidence of a statement against interest under an abuse of discretion standard. Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994). The trial court s ruling will not be reversed as long as it is within the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Simpson v. State, 181 S.W.3d 743, 749 (Tex. App. Tyler 2005, pet. ref d).

Analysis

The State does not argue that Cook s statement did not subject him to criminal liability. Instead the State argues that the statement is unreliable and uncorroborated. The trial court did not decide this precise question because the State argued at trial that the statement was not admissible because it was made by a codefendant. On appeal, the State argues that the trial court ruling is nevertheless correct because Cook did not take responsibility for all of the controlled substances in the apartment, because Cook had a reason to shield Appellant from criminal responsibility, and because his claim of personal use is implausible.

The corroboration requirement exists to deter the admission of a fabricated confession by a third party. See Davis, 872 S.W.2d at 748. A number of factors may be considered in this inquiry, including whether the guilt of the declarant is inconsistent with the guilt of the accused, whether the declarant was so situated that he might have committed the crime, the timing of the declaration and its spontaneity, the relationship between the declarant and the party to whom the declaration was made, and the existence of independent corroborating facts. Id. at 749.

These factors weigh in favor of admissibility. Cook s declaration was spontaneous and made shortly after the police took him into custody. Cook s statement is not inconsistent with the guilt of the accused. Indeed, the State argued that both Cook and Appellant were drug dealers. Cook could have committed the crime, and there are independent facts, such as the nine bags of marihuana, that corroborate his statement. In fact, the evidence that corroborates Cook s statement of ownership is essentially the same evidence that the State argues proves Appellant s responsibility for the marihuana in the apartment.

Weighing against admission of the statement is the relationship between Cook and Appellant, the fact that Cook did not accept responsibility for all of the controlled substances in the apartment, and the police officer s belief that the claim of personal use was incredible. Certainly an intimate partner might lie to protect the other from harm or legal jeopardy. But this statement does not appear to be calculated to protect Appellant from responsibility.

The fact that Cook did not confess to possessing all of the controlled substances in the apartment does not control this question. It is not clear that the police had found the rest of the controlled substances at the time, and the statement was a quick one, blurted out without questioning. The statement is not unreliable simply because Cook did not confess at once to every offense he might have committed.

Finally, Cook s statement contains an inculpatory statement, that the marihuana in the bag was his, and a self serving statement, that it was for personal use. In such a case, a court must balance declarant s competing self-serving and contrary interests to determine their predominant nature and ultimately the level of trustworthiness to be accorded. Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000). Assuming that the personal use statement was not true, the statement is still more incriminating that exonerating. This was a substantial admission to a felony offense. The statement does not lose the reliability we ascribe to statements against interest merely because Cook asserted an implausible but still illegal use for the marijuana.

The personal use statement may weigh against admission, but we do not believe it is sufficient to overcome the spontaneous nature of Cook s acceptance of responsibility for the marihuana. To be sure, Cook was trying to minimize his role, claiming that he was going to smoke the marihuana and not sell it. But this was not a statement concocted on the evening of trial to provide a defense for Appellant. Cook admitted that it was his, he did so shortly after being arrested, the statement is corroborated, and it does not appear to have been made to shield Appellant. The statement should have been admitted. See James v. State, 102 S.W.3d 162, 178 79 (Tex. App. Fort Worth 2003, pet. ref d).

Harmless Error

  The exclusion of evidence offered by a defendant can amount to a violation of the right to compel a witness in his favor, a constitutional error. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002)). However, evidentiary rulings rarely rise to the level of denying the fundamental constitutional right to present a meaningful defense. Potier, 68 S.W.3d at 663. There are two circumstances in which the improper exclusion of evidence may establish a constitutional violation: (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense or (2) when a trial court erroneously excludes relevant evidence that is a vital portion of the case and the exclusion effectively precludes the defendant from presenting a defense. Ray, 178 S.W.3d at 835; Potier, 68 S.W.3d at 659 62.

The second category is implicated here, and we must determine whether the exclusion of the evidence effectively prevented Appellant from presenting a defense. Ray, 178 S.W.3d at 835. While she did not testify, as in Ray, Appellant was able to present a defense and to argue effectively that the drugs belonged to Cook. Cook was not formally employed while Appellant worked two jobs and went to school. Additionally, some of the marihuana was found in one of Cook s shirts, and his fingerprint was found on the box that contained the larger amount of marihuana. Furthermore, Appellant s mother testified that Appellant really did not live in the apartment and was not a drug dealer. Finally, Appellant s statement that she knew about the marihuana in the backpack is consistent with Cook s owning the marihuana the thrust of Cook s statement that she sought to introduce.

Cook s statement might have improved Appellant s defense incrementally. See, e.g., Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Nevertheless, because Appellant was able to introduce other evidence that the drugs belonged to Cook, we cannot say that the exclusion of his statement prevented her from presenting her defense. Therefore, the error does not implicate Appellant s constitutional rights.

Nonconstitutional error is harmless if we are fairly assured that the error did not influence the jury or had but a slight effect after an examination of the record as a whole. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In this case, the exclusion of Cook s statement did not influence the jury or had but a slight effect. The State never asserted that Appellant s possession of the marihuana was exclusive and consistently argued that both parties were guilty of the offense. Cook s statement is not inconsistent with this position. The fact that there were copious amounts of marihuana throughout the apartment leads to the conclusion that the possession was joint and that Cook s statement would not have helped Appellant in a significant way. The case is distinguishable on the facts from Ray because the statement in this case, if believed, would not tend to exonerate Appellant completely and because the other evidence showing Appellant s possession of controlled substances is much stronger. Appellant s fourth issue is overruled.

Evidence to Support Sentence

In her fifth issue, Appellant asserts that her sentence should have been suspended and she should have been placed on community supervision because she possessed less than a pound of marihuana.

Applicable Law

Possession of marihuana in an amount of more than four ounces and less than five pounds is a state jail felony with a punishment range from 180 days to two years in state jail. Tex. Health & Safety Code Ann. 481.121(b)(3), Tex. Pen. Code Ann. 12.35(a) (Vernon 2005). However, article 42.12, section 15(a)(1) of the Texas Code of Criminal Procedure provides that the trial court must place a defendant on community supervision if the defendant has no prior felony convictions and possessed less than one pound of marihuana.

Analysis

The total amount of marihuana in this case was about three pounds. The largest holdings were divided into the backpack, which contained about six ounces, and the box in the closet, which contained nearly two and a half pounds. The guilty verdict does not resolve whether Appellant possessed more than a pound because the marihuana in the backpack weighed more than four ounces, enough for the conviction, but less than a pound.

At the sentencing hearing, Appellant asked the trial court to find that she did not possess more than a pound of marihuana and to suspend her sentence. The trial court declined and sentenced her to confinement for fourteen months. This appears to be an issue of first impression, and we perceive it to be a challenge to the legal and factual sufficiency of the implicit finding that Appellant possessed more than a pound of marihuana.1

Generally, in the absence of statutory direction, there is no burden of proof for sentencing issues. McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S. Ct. 2411, 2419, 91 L. Ed. 2d 67 (1986) ( Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all. ); Fields v. State, 1 S.W.3d 687, 688 n.3 (Tex. Crim. App. 1999); In re C.J.H., 79 S.W.3d 698, 703 (Tex. App. Fort Worth 2002, no pet.). As the court of criminal appeals noted in Fields, a burden of proof is not required by the constitution for sentencing issues because each element of the offense has already been found beyond a reasonable doubt. Fields, 1 S.W.3d at 688. This situation is different because the jury did not specifically find that Appellant possessed more than a pound of marihuana. The issue is analogous to proof of eligibility for probation or a sentencing issue such as voluntary release in the context of an aggravated kidnapping offense, both of which must be demonstrated at punishment. In those instances, the burden is placed on the defendant by statute. See Tex. Code Crim. Proc. Ann. art. 42.12, 4(d)(3), (e); Tex. Pen. Code Ann. 20.04(d) (Vernon 2005). On the other hand, this issue is also analogous to the proof the state must make to obtain a penalty of death or to enhance a sentence. Again, in each of those instances, the burden of proof is established by statute or case law. See Tex. Code Crim. Proc. Ann. art. 37.071(c) (Vernon 2005); Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984).

Neither the statute nor case law establishes a burden of proof on this issue. However, we need not decide who bears the burden of proof or the precise contours of the appropriate review because the evidence is legally and factually sufficient to support the finding beyond a reasonable doubt that Appellant possessed more than a pound of marihuana. Appellant is correct that the evidence that she possessed the marihuana in the backpack was stronger than the evidence that she possessed the marihuana in the closet because she admitted that she knew about the marihuana in the backpack. But Appellant also admitted that she knew about the other activities in the apartment, and there was marihuana in most of the rooms in the apartment. The trial court was in a position to evaluate the evidence and did not act unreasonably when it implicitly found that Appellant possessed more than a pound of marihuana nor is its finding a manifest injustice. We overrule Appellant s fifth issue.

Conclusion

The evidence is legally and factually sufficient to support both the verdict and the finding that Appellant possessed more than a pound of marihuana. Any error in the exclusion of a hearsay statement by the father of Appellant s child was harmless, and the trial court properly admitted Appellant s statement to the police. We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered May 24, 2006.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)

1 Appellant believed that a jury could not assess community supervision in a state jail felony case and so elected to have the trial court assess punishment. See Goodrich v. State, 156 S.W.3d 141, 148 49 (Tex. App. Dallas 2005, pet. ref d). Therefore, the jury was never asked if she possessed more than a pound of marihuana.