Court of Appeals
Tenth Appellate District of Texas
10-25-00451-CR
Jazmin Alyna Andrade,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
13th District Court of Navarro County, Texas
Senior Judge H. D. Black Jr., presiding
Trial Court Cause No. D43030-CR
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Jazmin Alyna Andrade guilty of the offense of possession of
a controlled substance in an amount of less than one gram. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(b). The trial court assessed her punishment
at twelve months in state jail, but suspended her sentence and placed her on
community supervision for three years. In two issues on appeal, Andrade
asserts that the evidence is legally insufficient to support the jury’s implied rejection of her necessity defense and that the trial court reversibly erred by
failing to inquire under article 42.07 of the Code of Criminal Procedure
whether there existed any reason why sentence should not be pronounced. We
affirm.
Necessity Defense
In her first issue, Andrade contends that the State failed to meet its
burden of persuasion to defeat her necessity defense. We disagree.
STANDARD OF REVIEW AND RELEVANT LAW
Criminal conduct is justified if: (1) the actor reasonably believes the
conduct is immediately necessary to avoid imminent harm; (2) the desirability
and urgency of avoiding the harm clearly outweigh, according to ordinary
standards of reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and (3) a legislative purpose to exclude the
justification claimed for the conduct does not otherwise plainly appear. TEX.
PENAL CODE ANN. § 9.22.
After a defendant has introduced some evidence supporting her necessity
defense, the State bears the burden of persuasion to disprove it. See Stefanoff
v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d). This burden,
however, does not require the State to introduce evidence to disprove the
defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). In our
Jazmin Alyna Andrade v. The State of Texas Page 2 review, we must view all the evidence in the light most favorable to the
prosecution and determine (1) whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt and (2)
whether the factfinder could have found against the defendant on the necessity
issue beyond a reasonable doubt. Id. at 914.
RELEVANT FACTS
At trial, law enforcement testimony established that Andrade was pulled
over for travelling 91 miles per hour in a 75 mile per hour zone. When the
officer made contact with Andrade, she smelled the odor of burnt marijuana
coming from the vehicle. Andrade was detained in the back of the police car
while officers performed a probable cause search. During the search, officers
located one baggie containing a pink powdery substance in a white purse in
the front passenger side of the vehicle. In the back passenger floorboard,
officers located a black purse containing two baggies with a white powdery
substance and a partially-smoked “blunt.” Officers also located various drug
paraphernalia and drug-related items in the vehicle, such as cigarillos, a vape
pen, and a stuffed toy that resembled a marijuana joint. Andrade told one of
the officers that “the weed was hers,” but that her ex-boyfriend put the powdery
substances – which she believed to be cocaine – in her purse. According to the
Jazmin Alyna Andrade v. The State of Texas Page 3 testimony and written report of a forensic scientist with the Texas Department
of Public Safety crime lab, all three powdery substances contained ketamine.
Andrade testified in her own defense. She explained that on the night
she was arrested, she was driving from Houston to Dallas to escape her abusive
relationship. Andrande described her ex-boyfriend as controlling and
physically abusive. She testified that she knew her ex-boyfriend used illegal
narcotics, and that he would sometimes force her to carry his narcotics, guns,
and money in her purse. Should she refuse, Andrade testified that her exboyfriend would “manhandle” her. The night she was arrested, Andrade stated
that her ex-boyfriend had threatened her with violence, causing her to flee to
Dallas for her own safety.
On cross-examination, Andrade testified that she had been driving for
approximately three and a half hours before she was pulled over by law
enforcement. Because her ex-boyfriend had access to her location through her
cell phone, she was afraid that he might be following her. She stated that she
did not discard the narcotics at any point during her drive because she “wasn’t
aware” that they were in her purses and that she just “grabbed what [she]
could and then left.” Andrade claimed that her boyfriend had regular access
to her purse even if she was not with him, and that he did not always tell her
when he put narcotics in her purse. When asked why she did not tell the police
Jazmin Alyna Andrade v. The State of Texas Page 4 “this whole story you’re telling the Jury today[,]” Andrade responded, “The
police doesn’t care […] All they care is that it was in my possession and they
found somebody to take to jail.”
At the charge conference, Andrade requested an instruction on necessity.
The State objected, arguing that Andrade failed to meet the confession-andavoidance requirement by refusing to unequivocally admit to the culpable
mental state of knowingly possessing the controlled substance. The State also
contended that Andrade failed to present evidence of an immediate danger of
imminent harm. The trial court overruled the State’s objection and included a
necessity instruction in the jury charge.
ANALYSIS
We conclude that a rational factfinder could have found the essential
elements of the offense beyond a reasonable doubt. In this case, the State was
required to prove that Andrade intentionally or knowingly possessed ketamine
in an amount of less than one gram. Three baggies of substances containing
ketamine with a combined weight of 0.68 grams were found inside of two of
Andrade’s purses in the vehicle, along with other drug paraphernalia. She
admitted that she was aware that her ex-boyfriend sometimes stored illegal
narcotics in her purse. The purses contained other items belonging to Andrade,
such as her makeup. Although she claimed she was unaware that those
Jazmin Alyna Andrade v. The State of Texas Page 5 specific substances were in her purses at that time, the jury was free to
disbelieve that testimony.
Viewing the evidence in the appropriate light, we also conclude that the
evidence was sufficient to support the jury’s implied rejection of Andrade’s
necessity defense. Evidence related to Andrade’s necessity defense was
dependent upon the jury’s assessment of her credibility. The factfinder is the
sole judge of the weight and credibility of the evidence and may choose to
disbelieve a witness even when her testimony is uncontroverted. See TEX.
CODE CRIM. PROC. ANN. art. 38.04; Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013); Gibson v. State, 233 S.W.3d 447, 452 (Tex. App.—Waco 2007,
no pet.). When performing an evidentiary sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). The jury was free to disbelieve any or all of Andrade’s
testimony that she had to possess the ketamine to avoid being abused by her
ex-boyfriend.
Furthermore, the jury could have reasonably found that Andrade failed
to meet the first prong of the necessity defense. Andrade had over three hours
to dispose of the narcotics before she was stopped, during which time she was
physically separated from her ex-boyfriend. This undercuts her claim that
Jazmin Alyna Andrade v. The State of Texas Page 6 possessing the drugs was “immediately necessary” to avoid harm. Moreover,
“imminent” harm means something that is immediate, something that is at the
point of happening and not about to happen. See Pennington v. State, 54
S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref'd). Andrade testified to
a specific fear of violence that prompted her to quickly separate from her exboyfriend. However, any imminence faded with the three-hour passage of time
and physical separation. Additionally, more than a generalized fear of harm
is required. Stefanoff, 78 S.W.3d at 501. While Andrade expressed concern
that her ex-boyfriend could access to her location through her cell phone, she
offered no evidence that he had actually accessed her location, was attempting
to access her location, or was actively following or pursuing her.
We overrule Andrade’s first issue.
Article 42.07 – Code of Criminal Procedure
In her second issue, Andrade asserts that she is entitled to a new
punishment hearing because the trial court failed to inquire pursuant to article
42.07 of the Code of Criminal Procedure whether there was any reason that
sentence should not be pronounced against her. We disagree.
ANALYSIS
Article 42.07 of the Code of Criminal Procedure, entitled “Reasons to
prevent sentence,” provides as follows:
Jazmin Alyna Andrade v. The State of Texas Page 7
Before pronouncing sentence, the defendant shall be asked
whether he has anything to say why the sentence should not be
pronounced against him. The only reasons which can be shown, on
account of which sentence cannot be pronounced, are:
1. That the defendant has received a pardon from the proper
authority, on the presentation of which, legally authenticated, he
shall be discharged.
2. That the defendant is incompetent to stand trial; and if evidence
be shown to support a finding of incompetency to stand trial, no
sentence shall be pronounced, and the court shall proceed under
Chapter 46B; and
3. When a person who has been convicted escapes after conviction
and before sentence and an individual supposed to be the same has
been arrested he may before sentence is pronounced, deny that he
is the person convicted, and an issue be accordingly tried before a
jury, or before the court if a jury is waived, as to his identity.
TEX. CODE CRIM. PROC. ANN. art. 42.07. A complaint that the trial court failed
to comply with article 42.07 must be preserved for appellate review. See TEX.
R. APP. P. 33.1; Eisen v. State, 40 S.W.3d 628, 636-37 (Tex. App.—Waco 2001,
pet. ref’d). Here, as Andrade acknowledges on appeal, she did not object to the
trial court’s failure to comply with article 42.07 or raise any contention in bar
of sentence prior to pronouncement.
Moreover, Andrade does not claim on appeal that any of the reasons set
out in article 42.07 apply in her case or otherwise explain how she was harmed
by the trial court’s failure. See Reyes v. State, 774 S.W.2d 670, 672 (Tex. App.—
Jazmin Alyna Andrade v. The State of Texas Page 8 Houston [14th Dist.] 1989, no pet.); Hernandez v. State, 628 S.W.2d 145, 147
(Tex. App.—Beaumont 1982, no pet.).
Accordingly, we overrule Andrade’s second issue.
Conclusion
Having overruled all of Andrade’s issues on appeal, we affirm the
judgment of the trial court.
STEVE SMITH
Justice
OPINION DELIVERED and FILED: June 25, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CR25
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