Opinion
No. 05-11-00003-CR
05-23-2012
KEITHIAN LATODD BROWN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED; Opinion Filed May 23, 2012.
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F10-51419-Y
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Keithian LaTodd Brown appeals the trial court's judgment convicting him of unlawful possession with intent to deliver cocaine in the amount of four grams or more, but less than 200 grams, within 1,000 feet of a drug-free zone. The jury found Brown guilty, that he used or exhibited a deadly weapon during the offense, and assessed his punishment at ninety-nine years' imprisonment. Brown raises two issues on appeal. He contends the evidence was legally insufficient to sustain both Brown's conviction and the affirmative deadly weapon finding. We decide against Brown on both issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2009, officers of the Dallas Police Department Street Squad received complaints about the sale of drugs from a specific house and placed the house under covert surveillance. Also, police tried to infiltrate the house by making a "controlled buy" by sending a confidential informant. However, the persons inside the house refused to sell drugs to anyone they did not know. On several occasions during their surveillance, officers observed people approach the back door of the house and rub together what appeared to be two dangling doorbell wires. On each occasion, the people would then stand in front of the door without knocking. The door was opened and the people were admitted to the house. On one occasion, officers observed Brown arrive at the house in an automobile with co-defendant Procella. Officers saw a female let the pair into the house. On another occasion, a few people were standing outside the house when Brown arrived by himself in the automobile. Brown appeared to open the door with a key and let himself and others in.
On January 20, 2010, officers went to the house to execute a search warrant. However, metal bars were affixed to the front door and windows. Officers loudly yelled "police," deployed a diversionary device, and rammed the door open. At that point in time, a shot was fired from inside the house. Detective Terell McNeal broke down the door and another officer threw a diversionary device inside the house. Two individuals were found in the house, co-defendant Procella, who was found in the living room, and Brown, who was found in the bedroom. Brown and Procella were immediately arrested and removed from the house.
In the living room, the officers found a loaded firearm under a couch as well as a spent shell casing on top of one of the couch's cushions close to where Procella had been when the officers entered. Adjacent to the kitchen was a small closet. On the outside of the closet, there was a latch and padlock that could be used to safeguard the contents. Inside that closet, the officers found a dozen lighters, glass pipes typically used to smoke crack cocaine, kitchen scrubbing pads (frequently used as a filter to smoke crack cocaine), cigarettes, a small metal lockbox with $208 in cash inside, and small plastic bags of cocaine. A chemist determined the weight of the small, plastic bags to be 4.9 grams. However, the kitchen did not contain any food, cooking utensils, or napkins. In the bathroom, there were no toiletries or other indicia that the bathroom was used for its normal purposes. Instead, the wall behind the bathtub had a hole cut in it, and an officer testified that empty spaces are frequently found in "traps" to conceal narcotics. Further, the house had no electricity.
Brown was charged with possession with intent to deliver "four grams or more but less than 200 grams" of cocaine within 1,000 feet of an elementary school, a drug-free zone. He pled not guilty, asserting he knew nothing about the drugs or money and, instead, was using the house for trysts with a paramour.
During trial, Brown called Procella to testify on Brown's behalf. Procella stated that Brown was never present when Procella sold drugs out of the house. Procella also stated that he had been "good friends" with Brown for approximately three years. Procella testified he knew there were drugs, money, and drug paraphernalia in the kitchen closet. Procella stated buyers would come to the house and ask to enter by rubbing two doorbell wires together. Procella admitting to selling approximately $100 worth of crack cocaine from the house daily. Procella would allow buyers to smoke the purchased crack cocaine in the house, but he stated that Brown was never present during either the sale or consumption of the drugs. Procella admitted that the firearm found at the scene was his, that he was walking around with it at the time the officers entered the house, and that he shot at the officers.
The jury found Brown guilty as charged in the indictment, and that he used or exhibited a deadly weapon during the offense. The jury sentenced Brown to ninety-nine years' imprisonment.
II. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN CONVICTION FOR POSSESSION OF COCAINE WITH INTENT TO DELIVER
In his first issue, Brown contends the evidence is "legally insufficient" to sustain his conviction for possession with intent to deliver cocaine because Brown was not found in proximity to the contraband nor was there any indicia that Brown knew of or exercised control over it.
A. Standard of Review
The Court of Criminal Appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
B. Applicable Law
The Texas Controlled Substances Act provides that a person commits an offense if the person knowingly possesses cocaine with the intent to deliver. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (d) (West 2010). The term "possession" means actual care, custody, control, or management. Id. § 481.002(38). The State must prove the defendant: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether direct or circumstantial, the evidence must establish that the defendant's connection with the controlled substance was more than just fortuitous. See Evans, 202 S.W.3d at 161; Poindexter, 153 S.W.3d at 405. Mere presence at the location where the controlled substance was found is insufficient, by itself, to establish possession. See Evans, 202 S.W.3d at 162.
Control over a controlled substance need not be exclusive, but can be jointly exercised by more than one person. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). If the defendant was not in exclusive possession of the controlled substance, the State is required to present evidence linking him to it. See Taylor, 106 S.W.3d at 830-31.
When determining whether sufficient evidence exists to link a defendant to the contraband, an appellate court considers a variety of factors, 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 controlled substance; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband or controlled substances 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 controlled substance was found; (12) whether the place where the controlled substance was 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. See Evans, 202 S.W.3d at 162 n.12. However, these are just factors which may circumstantially establish the sufficiency of the evidence to prove a knowing "possession." See id. These factors are not a litmus test. See id. The number of links is less important than the "logical force" or degree to which the links, alone or in combination, tend to link the defendant to the controlled substance. See id. at 162; Taylor, 106 S.W.3d at 830.
C. Application of Law to Facts
Brown concedes there is evidence of the following links: (1) he was present when the search was conducted; and (2) he had the right to possess the place where the contraband was found. He claims these factors are the only evidence linking him to the cocaine. Brown argues the cocaine was not found in plain view, he was not found in "close proximity" to the cocaine, there was no evidence that Brown was under the influence of narcotics when arrested, nor was he found in possession of other narcotics or drug paraphernalia. Further, Brown argues he did not attempt to flee nor did he make furtive gestures or incriminating statements. Brown argues no cash was found on him personally and no other conduct by him indicated consciousness of guilt. While Brown was seen entering and leaving the house while under surveillance, he argues there was no evidence that linked him to the contraband. We disagree with Brown's contentions.
The record contains evidence showing the following links: (1) the police received complaints from an anonymous tipline that drugs were being sold from the house; (2) the door and windows to the house were fortified with metal bars; (3) the house was a "trap" used for the purpose of selling drugs and no one lived in the house; (4) several plastic bags of cocaine were found in the kitchen along with cash and glass pipes for smoking crack cocaine; (5) although Brown was found in a different room than the firearm or drugs, there was no door nor wall separating the living room from the bedroom in which he was found; (6) on at least one occasion, it appeared Brown had keys to the house; (7) Brown drove Procella to the house on at least one occasion; (8) Brown pushed two dangling wires together on the side of the house, as an apparent signal to tell persons inside the house to let him in; (9) there were no cooking utensils or other indicia that the kitchen was used for its normal purposes; (10) there were no toiletries or other indicia that the bathroom was used for its normal purposes; (11) there was a hole cut in the wall of the bathroom, which could be used to store or hide items; (12) Procella admitted to habitually selling and using crack cocaine at the house, generating approximately $100 in gross revenue daily; (13) Procella admitted to firing a shot at the officers as they were in the process of breaking down the door; and (14) Procella testified that he knew Brown for approximately three years prior to the execution of the search warrant. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to link Brown to the cocaine to prove a knowing possession. We decide Brown's first issue against him. III. LEGAL SUFFICIENCY TO SUSTAIN DEADLY WEAPON FINDING
In his second issue, Brown contends the evidence is "legally insufficient" to sustain the deadly weapon finding and asks this Court to delete that finding.
A. Applicable Law
Article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure permits the entry of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon, or he was a party to the offense and knew that a deadly weapon would be used or exhibited. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West 2012). "In determining whether the accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101 (1986). In the context of a deadly weapon finding, the term "use" means any employment of a deadly weapon, even simple possession, if that possession facilitates the associated felony. Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). However, the term "exhibit" requires a weapon to be consciously shown, displayed or presented to be viewed. Coleman, 145 S.W.3d at 652; Patterson, 769 S.W.2d at 941.
When reviewing the sufficiency of the evidence to support a deadly weapon finding, the real question for review is whether the weapon was found to have facilitated the defendant's possession and intended distribution of the drugs. See Coleman, 145 S.W.3d at 655. The defendant's proximity to the gun at the time of the search is not dispositive. Id. at 654. The focus is on the proximity of the gun to the drugs, not the proximity of the gun to the defendant. See id. at 654-55 (discussing Gale v. State, 998 S.W.2d 221, 226 (Tex. Crim. App. 1999)). Also, ownership is not necessary for a finding that a defendant used a deadly weapon in violation of article 42.12, section 3g, of the Texas Code of Criminal Procedure. Smith v. State, 176 S.W.3d 907, 919 (Tex. App.-Dallas 2005, pet. ref'd). Courts must determine whether the cumulative effect of the factors could have allowed a rational jury to determine that the defendant used the weapons to protect the drugs and the proceeds therefrom. Coleman, 145 S.W.3d at 655. If a court of appeals determines the State failed to show a defendant used a deadly weapon in the commission of an offense, the court of appeals may delete the deadly weapon finding. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2006).
B. Application of Law to Facts
Brown concedes that the firearms found in the "trap" are deadly weapons, but argues he was not a party to the offense nor was any evidence offered that Brown knew that a deadly weapon would be used or exhibited. We have clearly determined Brown was a party to the offense. The record reflects Procella admitted to firing a shot from the inside of the house at police officers as they entered the house. The weapon was discovered under a couch. Procella testified that he sold and used crack cocaine in the house daily. Finally, officers observed Brown enter and exit the house on multiple occasions, using a key on at least one occasion and the loose wires to signal for entry on others.
In determining whether Brown knew that a deadly weapon would be used or exhibited, the real question is whether the weapon was found to have facilitated the possession and intended distribution of drugs. See Coleman, 145 S.W.3d at 655. In this case, officers testified that peddlers of drugs typically have firearms to protect themselves, their drugs, and the proceeds from the sale of drugs. Procella admitted to possessing the loaded firearm as well as firing a shot at officers as they executed a search warrant on the house. Procella testified that he kept the firearm in close proximity to his person in order to facilitate the possession and sale of drugs kept in the house.
We conclude a rational jury could have determined that Brown and Procella, working together, used the firearm in question to protect the drugs and proceeds therefrom. After reviewing all of the evidence under the appropriate standard of review, we conclude the evidence is sufficient to support the affirmative deadly weapon finding. Brown's second issue is decided against him.
IV. CONCLUSION
We conclude the evidence is sufficient to support the jury's verdict. The trial court's judgment is affirmed.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110003F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITHIAN LATODD BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00003-CR
Appeal from the Criminal District Court No. 7 of Dallas County, Texas. (Tr.Ct.No. F10- 51419-Y).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 23, 2012.
DOUGLAS S. LANG
JUSTICE