No. 14-06-00766-CR
Opinion filed October 23, 2007. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 1051152.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, Alice Yolanda Davis, appeals her conviction for possession with intent to deliver a controlled substance, namely cocaine weighing more than four grams but less than 200 grams, for which she was sentenced to 25 years in prison. In her sole point of error, appellant challenges the factual sufficiency of the evidence. We affirm.
I. BACKGROUND
On December 20, 2005, Houston Police Officer Chris Massey, in his duties as an undercover narcotics officer, met with an unidentified male in the Montrose area of Houston. Officer Massey asked the man if he knew where he could purchase $40.00 worth of crack cocaine, and the man directed him to appellant's home. Officer Massey gave the man $40.00, and the man went into appellant's residence. The man returned soon after with the requested narcotics. Officer Massey then obtained a search warrant for appellant's home. On December 21, 2005, Officer Massey and a team of officers executed the warrant. Officer Massey testified that appellant and her brother tried to close the door on the officers to prevent them from entering the residence. Appellant claimed that the door was open when the officers arrived. The officers located 56.7 grams of cocaine, along with Xanax pills and liquid codeine in a dresser drawer and night stand in appellant's bedroom. Officer Massey also located more than $3,400 in cash in appellant's closet, half in an unmarked box and half in the pocket of appellant's leather jacket. A dog trained in detecting narcotics gave a positive alert for cocaine on the money. There were seven other people present in appellant's residence at the time the warrant was executed. At some point during the search, appellant stated to police, "it's my apartment, I'll take charge of everything inside. Everything inside is mine." At trial, appellant claimed that three of the men present during the search resided in the apartment with her. Appellant testified that she shared her bedroom with her boyfriend, Namen Washington, who was not at the apartment on the day of the search. According to appellant, Washington used one of the dressers and one of the night stands in the bedroom wherein he kept many of his personal belongings. Appellant's brother also testified that Washington shared appellant's bedroom with her and had some belongings in that bedroom. However, Appellant's sixteen year old son, who also resided in appellant's apartment, testified that Washington did not live in appellant's apartment, but only slept over on occasion. Officer Massey testified that he believed the room to be solely appellant's after observing various pictures of appellant and her family, women's clothing, appellant's identification, and other documents bearing her name. The jury found appellant guilty of possession with intent to deliver a controlled substance. Appellant was on parole for a previous possession of cocaine conviction at the time of her arrest and conviction in this case. Appellant pled true to two enhancement paragraphs for three previous possession convictions, and the court assessed punishment at 25 years confinement. II. ANALYSIS
In her sole point of error, appellant challenges the factual sufficiency of the evidence supporting her conviction. When reviewing the factual sufficiency of the evidence, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust or (2) whether, considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Watson, 204 S.W.3d at 417. Nor can an appellate court declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. An appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in ordering a new trial. Id. In examining a factual sufficiency challenge, we defer to the fact-finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). In contrast to the State's theory of the case, appellant attempts to show that she did not possess the drugs and did not know that the drugs where in her apartment. As support for this contention, appellant relies on the testimony of Wilbur Parker (her brother), Melvin Pruitt, and Nathaniel Hamilton (her minor son), all of whom testified that appellant did not possess or sell cocaine from her apartment. Appellant also relies on her own testimony that she did not possess the drugs and did not have knowledge that drugs were in her apartment. Appellant further testified that she did not have exclusive possession of her bedroom: her boyfriend, Namen Washington shared the bedroom and used one of the night stands and dresser drawers where the drugs were located. Appellant contended that the drugs and money probably belonged to her boyfriend or another resident of the apartment. In this case, the State is required to show that appellant (1) knowingly or intentionally (2) possessed (3) cocaine, an illegal substance, (4) in the amount of more than four grams but less than two hundred (5) with the intent to deliver. TEX. HEALTH SAFETY CODE ANN. § 481.112 (a), (d) (Vernon 2001). In order to prove the possession element of this offense, the State is required to present evidence that appellant exercised care, control, or management over the contraband and that she knew it was contraband. See Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). According to appellant, the evidence produced by the State is insufficient to prove beyond a reasonable doubt that she possessed the cocaine because the State failed to affirmatively link the cocaine found in appellant's bedroom to her. When the accused is not in exclusive possession of the place where the contraband is found, as alleged by appellant in this case, the State must affirmatively link appellant to the contraband. Olivarez, 171 S.W.3d at 291; Cedano v. State, 245 S.W.3d 406, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The affirmative link may be shown through direct or circumstantial evidence, including the amount of contraband found, its location in relationship to the defendant's personal belongings, the defendant's relationship to other persons with access to the premises, incriminating statements, and proximity of the defendant to the contraband. See Olivarez, 171 S.W.3d at 291; Ex parte Stowe, 744 S.W.2d 615, 617-18 (Tex.App.-Houston [1st Dist.] 1987, no pet.) It is not the number of links that is dispositive; rather, it is the logical force of all of the evidence, direct and circumstantial. Olivarez, 171 S.W.3d at 291. At trial, the State presented evidence tending to link appellant to the contraband. First, appellant claimed ownership of the apartment to the officers at the time of the search and admitted to residing in the bedroom where the drugs were found. Id. (defendant's ownership of place where contraband found affirmatively links defendant to contraband). Although appellant testified that Washington also lived in that bedroom (a fact clearly tending to assist her defense), appellant's son testified that Washington did not permanently reside at appellant's apartment, but rather occasionally stayed overnight. Second, the officers found appellant's photographs, identification, and papers bearing her name in her bedroom during the search. No similar evidence was found by the officers showing that Washington lived in the bedroom. Officer Massey also testified that a "cookie" of crack cocaine was found in an enclosed drawer filled with female clothing. See Stowe, 744 S.W.2d at 617 (affirmative link established where contraband found in male defendant's closet containing men's clothing). It is undisputed that appellant was the only female residing in the apartment. Third, a large amount of cocaine, 56.7 grams, was located in appellant's bedroom. Id. at 617-18 (finding that a large amount of drugs discovered in defendant's house was an affirmative link between defendant and the contraband). Fourth, a large amount of cash, over $3,400, was found in appellant's jacket and in an unmarked box in appellant's closet. Id. (finding that a large amount of cash discovered in the pocket of defendant's clothing in closet where contraband was hidden was an affirmative link between defendant and contraband). Moreover, a trained narcotics canine detected the presence of cocaine on the money found in these two locations. Fifth, the officers located Xanax pills and liquid codeine in the dresser drawer where the cocaine was found. See Olivarez, 171 S.W.3d at 291 (other drugs found with contraband affirmatively links defendant to contraband). Sixth, Officer Massey testified that appellant and her brother attempted to close the door on the search team to prevent them from entering the house. Id. (finding an affirmative link where appellant exercised control over the house by claiming he rented it and by excluding officers when they asked for consent to search). Lastly, Officer Massey testified that during the search appellant stated "it's my apartment, I'll take charge of everything inside. Everything inside is mine." Olivarez, 171 S.W.3d at 291. (defendant's incriminating statements made at the time of the arrest, ownership of place where contraband found and claiming he exercised control over the apartment because he rented the home affirmatively links defendant to contraband). We find that this evidence was not so weak as to render the verdict clearly wrong and manifestly unjust. As detailed above, appellant offered many plausible inferences from the testimony in opposition of the State's evidence, all leading to the suggestion that she did not knowingly possess the drugs and that her boyfriend or another resident of the apartment owned the drugs. She also presented witnesses who refuted the criminal allegations and testified herself. The jury was free to disbelieve all or part of any testimony in support of appellant's defense, and a jury decision is not manifestly unjust merely because it resolved conflicting testimony in favor of the State. Our role is not to substitute our judgment for the fact-finder and determine which inference is more plausible. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) ("Although our analysis considers all evidence presented at trial we may not re-weigh the evidence and substitute our judgment for that of the jury."). Instead, our duty is to determine whether the evidence supporting the conviction (and inferences therefrom) is so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether the evidence supporting the jury's determination (and inferences therefrom) is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d at 11. We find that the evidence supporting appellant's conviction is not so weak that the jury's determination was clearly wrong or manifestly unjust. Furthermore, after reviewing all the evidence presented and considering all inferences flowing from that evidence, we find that the evidence supporting the conviction is not against the great weight and preponderance of the evidence. We therefore find the evidence to be factually sufficient to support appellant's conviction for possession of controlled substances and overrule appellant's sole point of error. We affirm the trial court's judgment.