No. 14-06-00888-CR
Opinion filed February 12, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 1014042.
Panel consists of Justices ANDERSON and FROST and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
KEM THOMPSON FROST, Justice.
Appellant Kerri Lashun Livings appeals his conviction for possession with intent to deliver a controlled substance of more than four grams and less than 200 grams, claiming the evidence is legally insufficient to support his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Police officers conducted an undercover surveillance of a shopping center based on a citizen's tip concerning suspected drug activity. Officer Alvarez noticed appellant enter and exit a barber shop several times. Each time, the officer observed appellant leave the barber shop, look around to ensure no one was watching him, and then enter a vehicle that had just driven into the parking lot. The officer observed that appellant remained in the passenger's side of each vehicle for fifteen or twenty seconds before exiting and returning to the barber shop. Based on his training and experience as an undercover narcotics officer, who in the course of conducting an investigation had performed activities similar to appellant's, Officer Alvarez believed appellant was involved in a narcotics transaction. When Officer Alvarez saw appellant enter a fourth vehicle, he alerted a team of uniformed, law enforcement officers to assist. Members of this team responded and approached the vehicle. Two officers approached the passenger side of the vehicle. They saw appellant through the vehicle's passenger-side window. Officer MacFarlane observed movement within the vehicle, as if appellant were conversing with his head lowered, looking at something in his hands, and fidgeting with his hands around his waistband. Officer MacFarlane saw appellant holding a plastic bag containing a "chunky," rocky-looking substance. Officer Null also saw appellant holding the plastic bag, containing what appeared to be cocaine, and saw the driver and appellant both looking inside the bag. Appellant looked up and saw the officers outside of the vehicle. Both officers saw appellant toss the plastic bag to the driver of the vehicle, who attempted to escape, but was later apprehended. The officers arrested appellant. Officer MacFarlane later recovered a plastic bag containing 19.3 grams of crack cocaine, comprised of 45 to 50 individual crack rocks, with a street value of $800. He recalled it was the same bag he witnessed appellant tossing to the driver of the vehicle. Appellant was charged with possession with intent to deliver a controlled substance, cocaine. He pleaded "not guilty." A jury found appellant guilty as charged. The trial court sentenced appellant to fifteen years' confinement based on an enhancement paragraph for a prior felony conviction. In a single issue, appellant now appeals his conviction, claiming the evidence is legally insufficient to support his conviction. II. ANALYSIS
A person commits an offense if that person knowingly possesses with intent to deliver a controlled substance. See TEX. HEALTH SAFETY CODE ANN.' 481.112(a) (Vernon 2003). Cocaine is considered a controlled substance. See id.' 481.102 (Vernon 2003). Appellant challenges the legal sufficiency of the evidence to prove both possession and intent to deliver. When evaluating a legal-sufficiency challenge, we examine the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). The standard is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Possession
"Possession' means actual care, custody, control or management." TEX. HEALTH SAFETY CODE. ANN. 481.002(38) (Vernon 2003). To prove unlawful possession of a controlled substance, the State must establish the accused (1) exercised care, control, custody, or management over the contraband, and (2) knew the matter was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused's connection with the drug was more than fortuitous, which is considered the "affirmative links" rule. Id. Evidence must affirmatively link appellant to the offense, so that one reasonably may infer the defendant knew of the contraband's existence and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Courts have identified a non-exhaustive list of factors that may help to show an accused's affirmative links to a controlled substance, including (1) the accused's presence when a search is conducted, (2) whether the contraband was in plain view, (3) the accused's proximity to and accessibility of the narcotic, (4) whether the accused was under the influence of narcotics when arrested, (5) whether other contraband or other narcotics were found in the accused's possession, (6) any incriminating statements the defendant made when arrested, (7) whether the accused made furtive gestures or attempted to flee, (8) any odor of contraband, (9) the presence of other contraband or paraphernalia, (10) the accused's ownership or right to possess the place where the drugs were found, (11) whether the place where the drugs were found was enclosed, (12) whether the accused was found with a large amount of cash, and (13) whether the conduct of the accused indicated a consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n. 12 (Tex.Crim.App. 2006). We also have considered the presence of a large quantity of contraband as a factor affirmatively linking an appellant to the contraband. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Although no set formula of facts necessitates a finding of an affirmative link sufficient to support an inference of knowing possession, affirmative links are established by the totality of the circumstances. Hyett, 58 S.W.3d at 830. The number of factors present is not as important as the "logical force" the factors create to prove the defendant knowingly possessed the controlled substance. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Appellant chiefly complains that the only evidence supporting the element of possession was the officers' observance of appellant tossing the plastic bag to the driver when the officers approached the vehicle. Appellant complains there is no evidence indicating where the bag originated or whether the driver first tossed the bag to appellant before the officers saw appellant toss the bag to the driver. Appellant asserts that he did not possess the bag long enough to exercise care, custody, control, or management of the bag. He disputes there was a showing of a conscious connection to the bag and that he knew what the bag contained. Despite appellant's contentions, the absence of some factors that may establish an affirmative link is not evidence of innocence to be weighed against evidence connecting appellant to the narcotics. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976). In this case, Officer MacFarlane testified that as he approached the vehicle, he saw appellant conversing inside the vehicle and fidgeting with his hands around his waistband. He observed appellant with a plastic bag containing a rocky-looking substance. Officer MacFarlane testified that upon seeing the approaching uniformed police officers, appellant tossed the plastic bag to the driver as if "he hurried up and got rid of it. It was like a hot potato type deal, get it out of [appellant's] hand." See Warren v. State, 971 S.W.2d 656, 658, 661 (Tex.App.-Dallas 1998, no pet.) (concluding evidence of accused's furtive gestures and proximity to the cocaine was factually and legally sufficient to support conviction). Officer Null confirmed the same. In considering that appellant tossed the bag when police officers approached the vehicle, his conduct may be interpreted as consciousness of guilt and a furtive gesture to dispose of the narcotics. See id. Although appellant argues there is no evidence he was in possession of the bag nor did he know of its contents, we consider the following facts as evidence of possession: the large quantity of narcotics in the bag, the officers' testimony that appellant was holding the bag of cocaine, and appellant's reaction after seeing the officers outside of the vehicle. See Garrett v. State, 161 S.W.3d 664, 672 (Tex.App.-Fort Worth 2005, pet. ref'd) (providing evidence from officer who observed a defendant tossing bags of crack cocaine into a toilet sufficiently supported finding that the defendant exercised control over the substance, knew of the connection to the substance, and knew the substance was crack cocaine); Roberson, 80 S.W.3d at 740 (noting 24 grams of cocaine is not an insignificant amount and that 24 grams of cocaine is an amount small enough to be concealed on one's person). These factors, especially when combined, can be considered as evidence of possession and knowledge about the presence and nature of the contraband and would support a trier of fact's conclusion in that regard. See Evans, 202 S.W.3d at 166. Viewing the evidence in the light most favorable to the verdict, we hold a rational trier of fact could have concluded beyond a reasonable doubt that appellant had knowledge of the contraband and exercised control over it. See Moreno v. State, 195 S.W.3d 321, 326 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Intent to Deliver
Appellant also argues the evidence is insufficient to support a conviction of possession with the intent to deliver. "Deliver" means to transfer, actually or constructively, a controlled substance to another. See TEX. HEALTH SAFETY CODE ANN. 481.002(8) (Vernon 2003). Intent to deliver a controlled substance can be proven by circumstantial evidence, such as the quantity of narcotics possessed. Patterson v. State, 138 S.W.3d 643, 649 (Tex.App.-Dallas 2004, no pet.). "Intent can be inferred from the acts, words, and conduct of the accused." Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). Factors that a reviewing court may consider in determining intent to deliver include (1) the nature of the location at which the accused was arrested, (2) the presence of the accused in a drug house, (3) the manner in which the narcotic was possessed, (4) the quantity of the contraband in the accused's possession, (5) the manner of packaging, (6) the presence or lack thereof of drug paraphernalia for either use or sale, (7) amounts of cash, or (8) the accused's status as a drug user. Moreno, 195 S.W.3d at 325. The record reflects that appellant was arrested after being seen in the vehicle with a plastic bag containing approximately 20 grams of crack cocaine, which had a street value of $800. Expert testimony by experienced law enforcement officers, as in this case, may be used to establish an accused's intent to deliver. See Mack v. State, 859 S.W.2d 526, 528, 529 (Tex.App.-Houston [1st Dist.] 1993, no pet.). Officer Alvarez, a fourteen-year veteran with the Houston Police Department, testified that, based on the short time appellant spent in each vehicle, he believed appellant was conducting narcotics transactions. The neighborhood was considered by narcotics officers to be an area with high narcotics activity. Officer Alvarez also testified that in his experience, a person who carries nearly 20 grams of cocaine in their waistband is likely a "dope dealer." Officer MacFarlane testified to seeing movement within the vehicle when he first approached, and it appeared appellant was fidgeting around his waistband. Based on Officer MacFarlane's experience, the amount of crack cocaine within the bag indicated "wholesale narcotics," which he explained is an amount that one dealer sells to another dealer to sell on the streets. He testified that the amount and value of the narcotics recovered from the scene exceeds the typical amount possessed for personal consumption. See id. (holding 8.9 grams of crack cocaine, valued at $600, a sufficient amount from which to infer an intent to deliver). The record also indicates that the police officers on the scene did not find paraphernalia used to consume narcotics on appellant or in the vehicle. See Moreno, 195 S.W.3d at 326 (concluding absence of paraphernalia for consumption supports evidence to show intent to deliver); Mack, 859 S.W.2d at 528, 529 (concluding that absence of paraphernalia for smoking or using cocaine supports an intent to deliver rather than an intent to consume). Appellant complains that no evidence suggests he attempted to evade detention and that he cooperated with the arresting officers. However, Officer MacFarlane testified that appellant did not have a chance to evade detention. Furthermore, despite appellant's contentions, it is not necessary that appellant be found with large amounts of cash to show an intent to deliver. See Moreno, 195 S.W.3d at 326. Such evidence is only one factor to consider. See id. In viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have determined beyond a reasonable doubt that appellant possessed the narcotics with intent to deliver. See id. Therefore, we overrule appellant's sole issue on appeal, and having overruled appellant's sole issue, we affirm the trial court's judgment.