Tiffany Yvonne Conley v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-25-00447-CR Tiffany Yvonne Conley, Appellant v. The State of Texas, Appellee On appeal from the 278th District Court of Walker County, Texas Judge Tracy Sorensen, presiding Trial Court Cause No. 31481 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Tiffany Yvonne Conley guilty of possessing less than one gram of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b). After Conley pleaded true to two enhancement allegations, the trial court assessed her punishment at five years’ confinement in the penitentiary. See TEX. PENAL CODE ANN. § 12.425(a). Conley raises two issues on appeal regarding (1) the admission of prior convictions and (2) sufficiency of the evidence. We affirm. A. Background Sergeant Ringo of the Walker County Sheriff ’s Office obtained a warrant to search a three-story residence in Huntsville. The warrant focused on the owner, Amber Vanriper, whom Ringo had known to have sold narcotics to a confidential informant from the residence on two occasions. Officers executed the warrant early in the morning on July 28, 2023. After knocking and announcing without a response, they breached the front door. In the ensuing commotion, Vanriper came down from the third floor, where her bedroom was located, and was detained. Officers found methamphetamine in Vanriper’s bedroom. While clearing the house, officers found Conley asleep in bed in a second-floor bedroom. Conley was also detained. A nightstand stood beside the bed in which Conley had been sleeping. Inside the nightstand’s drawer, officers found two glass pipes that Ringo identified, based on the black residue in their bulbs, as pipes “commonly used to smoke methamphetamine,” a glass dish containing loose, crystal-like shards, a pipe commonly used to smoke marihuana, a marihuana grinder, and a jar of marihuana cigarette butts. A Department of Public Safety chemist later determined that the shards in the dish were 0.27 grams of a substance Conley v. State Page 2 containing methamphetamine. Underneath the nightstand was a black bag containing Conley’s wallet, her driver’s license, and a bag of marihuana. On top of the nightstand were cigarettes and a lighter. Conley was arrested for possession of marihuana and possession of a controlled substance in an amount of less than one gram. B. Issue One In her first issue, Conley contends that the trial court erred by admitting, over her objection under Rule of Evidence 404(b), two judgments reflecting her prior convictions for possession of methamphetamine. 1. Authority To preserve a complaint for appellate review, a party must make a timely and specific objection and obtain a ruling. TEX. R. APP. P. 33.1(a). “When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.” TEX. R. EVID. 103(b). However, a later statement of “no objection” when the evidence is offered ordinarily forfeits the earlier-preserved objection. Thomas v. State, 408 S.W.3d 877, 881–82 (Tex. Crim. App. 2013). The rule is “context-dependent.” Id. at 885. “If the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his ‘no objection’ statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal, then the appellate court Conley v. State Page 3 should not regard the claim as ‘waived,’ but should resolve it on the merits.” Id. But “if from the record as a whole the appellate court simply cannot tell whether an abandonment was intended or understood, then, consistent with prior case law, it should regard the ‘no objection’ statement to be a waiver of the earlier-preserved error.” Id. at 885–86. 2. Discussion During defense counsel’s cross-examination, Ringo acknowledged that nothing in the drawer bore Conley’s name, that officers did not test the dish or the pipes for fingerprints or DNA, and that no officer questioned Conley about the items. He agreed that, other than finding Conley asleep in the bed and finding the marihuana in the bag with her wallet, law enforcement did nothing to connect her to the methamphetamine or the paraphernalia. After Ringo and a DPS chemist testified and outside the presence of the jury, the State announced its intention to offer evidence of Conley’s prior convictions, arguing that defense counsel’s cross-examination of Ringo had opened the door under Rule 404(b) to proof of knowledge and absence of mistake or accident. Defense counsel objected that his questions had focused on what Ringo failed to do in collecting evidence of possession, that they had not opened the door, and that Rule 404(b) is not “a catchall if a defendant has prior crimes.” The trial court ruled that it would admit the evidence “for the limited purpose of . . . proving knowledge, absence of mistake, or lack of Conley v. State Page 4 accident,” and, when defense counsel asked the court to “note my objection,” stated, “Your objection is overruled.” The jury returned, and the State called an investigator with the district attorney’s office who had run Conley’s criminal history. When the State offered two certified judgments for possession of methamphetamine defense counsel asked to approach and told the trial court that Conley’s criminal history included “arrests that involv[e] possession of drugs, but there’s also other arrests that involve other things that have nothing to do with the possession of drugs.” The trial court directed counsel to “look at what they’re offering.” Defense counsel responded, “That would help, wouldn’t it?” and the bench conference ended. Before the jury, the trial court asked, “Any objections to State’s 13 or 14?” Defense counsel answered, “No, your Honor.” “Preservation of error is a systemic requirement,” and a court of appeals may not reverse a conviction without first addressing it, “regardless of whether the issue is raised by either of the parties.” Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016); see Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) (A court of appeals should review preservation of error on its own motion.). Defense counsel’s reply when asked if he had any objections was an affirmative representation that the defense had no objection to the exhibits, made after defense counsel had examined them and minutes after the trial Conley v. State Page 5 court had ruled on the Rule 404(b) objection. Nothing in the record indicates that defense counsel intended to preserve the earlier objection when defense counsel stated “no objection” to the very exhibits subject to the prior objection; the only concern defense counsel voiced at the bench was that the criminal history contained unrelated arrests, and that concern was resolved when defense counsel saw that the exhibits were limited to the two methamphetamine convictions. Nor does anything indicate that the trial court understood the earlier objection to persist. Unlike the trial court in Thomas, which admonished the defendant that she could appeal the suppression ruling and described that ruling as a “close call,” the trial court here simply admitted the exhibits. See Thomas, 408 S.W.3d at 886. Even when read most favorably to Conley, the record does not make clear whether an abandonment was intended or understood. Under Thomas, the “no objection” statement is then regarded as a waiver of the earlier complaint. See id. at 885–86. We therefore conclude that Conley’s complaint was not preserved. See TEX. R. APP. P. 33.1(a). We overrule Conley’s first issue. C. Issue Two In her second issue, Conley challenges the sufficiency of the evidence to support her conviction. She contends that nothing in the record shows that she knew what the nightstand drawer contained, that the paraphernalia and Conley v. State Page 6 drugs inside it belonged to someone else, and that her presence in the room established no more than proximity. The State responds that the circumstantial evidence, considered together, affirmatively links Conley to the methamphetamine and supports the jury’s finding of knowing possession. 1. Standard of Review The Court of Criminal Appeals has expressed the standard of review of sufficiency issues as follows: When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re- weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. Conley v. State Page 7  App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13. We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665. Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018). 2. Authority Texas Health and Safety Code subsection 481.115(a) provides that a person commits an offense if “the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). Methamphetamine is listed as a Penalty Group 1 controlled substance. Id. § 481.102(6). “Possession” means “actual care, custody, control, or management.” Id. § 481.002(38); TEX. PENAL CODE ANN. § 1.07(a)(39). To establish unlawful possession, the State must prove that “(1) the accused exercised control, management, or care over the substance; and (2) Conley v. State Page 8 the accused knew the matter possessed was contraband.” Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The evidence, whether direct or circumstantial, “must establish that the defendant’s connection with the drug was more than fortuitous.” Id. This requirement, historically called the “affirmative links” rule, “protects the innocent bystander—a relative, friend, or even stranger to the actual possessor—from conviction merely because of his fortuitous proximity to someone else’s drugs.” Id. at 161–62. “Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.” Id. at 162. “However, presence or proximity, when combined with other evidence, either direct or circumstantial . . . may well be sufficient to establish that element beyond a reasonable doubt.” Id. Accordingly, “[w]hen 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), overruled on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); see Mixon v. State, 481 S.W.3d 318, 323 (Tex. App.—Amarillo 2015, pet. ref ’d). Conley v. State Page 9  Courts have identified a number of non-exclusive factors that may link an accused to contraband, including: (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 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. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at 162 n.12; Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). These factors are not a checklist. “It is not the number of links that is dispositive; rather, it is the logical force of all the evidence.” Mixon, 481 S.W.3d at 324; see Evans, 202 S.W.3d at 162, 166. Nor does the absence of some factors weigh against the verdict: the “absence of various links does not constitute evidence of innocence to be weighed against the links present.” Williams v. State, 313 S.W.3d 393, 398 (Tex. App.— Houston [1st Dist.] 2009, pet. ref ’d); see Mixon, 481 S.W.3d at 324. Conley v. State Page 10 3. Discussion Conley does not dispute that the substance in the dish was methamphetamine or that it was found in the drawer of the nightstand beside the bed in which she was sleeping. She concedes that her proximity to the drawer while sleeping, together with the placement of her bag beneath it, showed that she had the ability to exercise control over the drawer’s contents “if desired.” Her complaint is directed to the knowledge element: she contends that nothing showed she knew the nightstand drawer contained a controlled substance, and that the items in it, including broken pipes, smoked marihuana cigarettes, and other odds and ends, were presumably her host’s or another unnamed guest’s. She notes that the methamphetamine was not in plain view and that the only property in the room unquestionably established to be hers was her purse, with its wallet and marihuana, and her cigarettes and lighter. On this record, she argues, her connection to the methamphetamine was merely fortuitous, and the affirmative-links rule exists precisely to protect a person in her position. See Evans, 202 S.W.3d at 161–62. She adds that the State filled the gap in its proof with the evidence of her prior convictions. The rule she invokes is settled: proximity to hidden contraband, without more, will not sustain a conviction. See Hernandez v. State, 517 S.W.2d 782, 785 (Tex. Crim. App. 1975); Allen v. State, 249 S.W.3d 680, 694–95 (Tex. App.—Austin 2008, pet. ref ’d) (“Where the contraband is hidden or secreted, the State, in a Conley v. State Page 11 possession of contraband case, must address whether the accused knew of the existence of the secreted place and its contents.”). Conley testified in her own defense. She said that she had been renting the second-floor room from Vanriper for $100 a week for “[t]wo, three months, maybe,” after losing her prior residence, and that she had known Vanriper for about a week before moving into Vanriper’s spare bedroom. She worked weekdays as the activities director of a nursing home in Willis, “stayed up at [her] boyfriend’s a lot,” and kept her clothes in a rolling suitcase. She described her use of the room this way: “[I] put my purse under the nightstand in that hole right there and lay down and go to sleep.” She testified that the bed, sheets, and comforter belonged to Vanriper; “everything in there was hers,” Conley said, “[e]xcept for my purse and my bag.” Conley acknowledged that the black bag was her purse, that the marihuana inside it was hers, that she was smoking marihuana in 2023, and that the cigarettes and lighter on top of the nightstand were hers, but she denied that the contents of the drawer were hers. Asked whether she ever opened the drawer, she answered, “I’m not nosy like that.” She agreed that she had “a history with methamphetamine,” testified that she quit using it after her 2020 arrest, and agreed that she knew what a methamphetamine pipe looks like and could see methamphetamine pipes in the photograph of the open drawer. She testified that she had not seen them before and “would not have been okay with that.” Conley v. State Page 12  On cross-examination, Conley testified that she “definitely didn’t use the drawer” but she “didn’t say never.” She then testified that “out of all of the time that I spent there, I’m sure I opened the drawer once or twice,” without seeing pipes or drugs. She suggested that others stayed in the room while she was at her boyfriend’s house and could have used the drawer, but she did not identify anyone. She again acknowledged that she had been convicted of possessing methamphetamine on at least two prior occasions, most recently in 2020. We agree with Conley that the State could not rest on her presence in the room and her proximity to the drawer alone. See Evans, 202 S.W.3d at 162. But the record contains considerably more, and we must consider it in combination rather than one link at a time. See id. at 166. First, Conley had the right to possess the place where the methamphetamine was found, and she had exercised that right for an extended period. By her own account, she had rented the room from Vanriper for $100 a week for two to three months, and it was where she slept with some regularity. Ringo agreed that the room appeared to be one “that somebody was living in full-time” and distinguished it from the rest of the house, stating it was “quite cleaner than Ms. Vanriper’s room.” This is not the situation in Allen, where the accused lived elsewhere, was present for a few hours as a Conley v. State Page 13 babysitter in another person’s apartment, and left nothing of hers in the rooms where the contraband was hidden. Allen, 249 S.W.3d at 687. Second, the contraband was not hidden somewhere in the house at large; it was in the drawer of the one piece of furniture that Conley admittedly used and around which her belongings were arranged. She was found in the bed beside it, within reach. She kept her cigarettes and lighter on top of it and her purse beneath it. The drawer was enclosed within the nightstand that Conley treated as hers to use, and she ultimately conceded that she had opened the drawer “once or twice.” A rational jury could infer that a tenant who slept beside that nightstand for months, kept her belongings on top of it and beneath it, and opened its drawer knew what the drawer contained. See also Hoover v. State, No. 10-19-00048-CR, 2021 WL 4595805, at *4 (Tex. App.—Waco Oct. 6, 2021, no pet.) (mem. op., not designated for publication) (concluding that contraband “effectively hidden” inside a wallet within the defendant’s reach supported the knowledge element when combined with other links). Cf. Allen, 249 S.W.3d at 695 (finding no link where “[t]here was no evidence that appellant ever opened the doors or had any need to do so”). Third, Conley possessed other contraband, and the drawer contained paraphernalia connected to it. At trial, Conley admitted that the marihuana in the purse under the nightstand was hers and that she was smoking marihuana in 2023. The drawer directly above her purse contained a Conley v. State Page 14 marihuana pipe, a marihuana grinder, and a jar of marihuana cigarette butts alongside the two methamphetamine pipes and the dish of methamphetamine. A rational jury could infer that the marihuana paraphernalia in the drawer belonged to the person whose marihuana was beneath it, and that the person who kept her marihuana paraphernalia in the drawer knew what else was kept there. See Mixon, 481 S.W.3d at 324 (relying on paraphernalia “present throughout the house and the shed” and on the defendant’s status as “primary resident”). Fourth, the evidence supports the finding that Conley knew the substance in the dish was contraband. She acknowledged her history of methamphetamine use, agreed that she knew what a methamphetamine pipe looks like, and, looking at the photograph of the open drawer, identified the pipes in it as methamphetamine pipes. See id. (noting that the defendant “was familiar with and admitted using methamphetamine at various points in the past”). The jury also had before it the two prior judgments for possession of methamphetamine. Conley argues that those judgments should not count because they were improperly admitted, but a reviewing court asks only whether a rational trier of fact could have found the essential elements “based on all of the evidence admitted at trial.” Poindexter, 153 S.W.3d at 406–07. Here, the knowledge finding does not depend solely on the judgments; Conley’s Conley v. State Page 15 own testimony established her familiarity with methamphetamine and its paraphernalia. Fifth, Conley’s account shifted in ways the jury was entitled to weigh against her. On direct examination she explained that she had not looked in the drawer because “I’m not nosy like that.” On cross-examination she testified that she “definitely didn’t use the drawer” but that she “didn’t say never” about touching it. When pressed, she stated, “I am saying that out of all of the time that I spent there, I’m sure I opened the drawer once or twice. I mean, but did I use it? No. Are those my things in it? No.” Asked whether, on the occasions she opened the drawer, she ever saw “any kind of pipes or drugs or something else in there,” she answered, “Nothing.” The jury could weigh that answer against Ringo’s description of the drawer’s contents, her earlier statements, and the photograph of the open drawer, in which Conley herself identified methamphetamine pipes. She suggested that unnamed others slept in the room and used the nightstand while she was away, although she had earlier testified that everything in the room was either hers or Vanriper’s. The Austin court in Allen identified “conflicting statements, or an implausible account of events” as the kinds of additional circumstances that can supply the knowledge element when contraband is secreted. Allen, 249 S.W.3d at 694. A rational jury could find both here. The jury was not required to accept Conley’s denial. Her testimony that the drawer’s contents were not hers was uncontradicted, Conley v. State Page 16 but uncontradicted testimony from an interested witness is not an undisputed fact, and “[t]he jury was entitled to believe this evidence, but it was not required to do so.” Evans, 202 S.W.3d at 165. Conley emphasizes links that are missing from this record. But the absence of some links is not evidence of innocence to be weighed against the links that are present. See Mixon, 481 S.W.3d at 324. In Hernandez, the Court of Criminal Appeals listed the absence of fingerprints among the many missing circumstances in a record that otherwise showed only a one-night guest sleeping near another person’s paraphernalia; it did not hold that forensic proof is required. Hernandez, 517 S.W.2d at 785. Nor does it matter that Vanriper, too, had access to the room or that more methamphetamine was found in her bedroom. “The mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that [s]he, too, knew of the drugs and constructively possessed them.” Poindexter, 153 S.W.3d at 412; see Mixon, 481 S.W.3d at 324–25. Conley’s argument that her connection to the methamphetamine was “fortuitous” asks us to view each circumstance in isolation. That is the approach the Court of Criminal Appeals rejected in Evans. Evans, 202 S.W.3d at 166. Conley rented and slept in the room for months, used the nightstand Conley v. State Page 17 for her own belongings, admittedly opened its drawer, kept her marihuana beneath a drawer holding marihuana paraphernalia beside the methamphetamine, knew what methamphetamine and its paraphernalia look like, and gave an account of the drawer that changed under cross-examination. Based on the combined and cumulative force of that evidence and the reasonable inferences from it, the jury was rationally justified in finding beyond a reasonable doubt that Conley knew of the methamphetamine and exercised actual care, custody, control, or management over it. See Tate, 500 S.W.3d at 414; Evans, 202 S.W.3d at 166. We overrule Conley’s second issue. D. Conclusion Having overruled both of Conley’s issues, we affirm the judgment of the trial court. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: October 29, 2026 Before Chief Justice Johnson, Justice Harris, and Justice Westerfeld Affirmed Do not publish CR25 Conley v. State Page 18