No. 05-03-00604-CR
Opinion issued February 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-31792-LN. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
Opinion By Justice WHITTINGTON.
A jury convicted Timothy Lynn Calverly of possession with intent to deliver gamma hydroxybutyrate (GHB) in an amount of four grams or more but less than 200 grams. The trial judge sentenced appellant to twenty-five years confinement and assessed a $5000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On March 14, 2002, Arlington police officer Michael Weber executed a search warrant on appellant's residence located at 809 Manor Street in Grand Prairie. While tactical officers made entry into the house at 5:50 a.m., Weber provided perimeter cover. As Weber was climbing over a gate that led into the backyard, he saw appellant exit a detached garage in the backyard. Weber ordered appellant to get on the ground. Appellant went back into the garage. Weber testified appellant shut the garage door for "approximately two seconds," then came back out into the yard. Officers apprehended appellant and Dianna Summerall, who was found inside the garage. Susan Gray, appellant's common-law wife, was found inside the house in the master bedroom, and two young children were in another bedroom. Police videotaped their search of the house, garage, and vehicles in the yard. The videotape was shown to the jury. Weber testified officers found paperwork in the master bedroom that showed appellant and Gray lived together at that address, and clothing and personal items belonging to appellant were found in the bedroom. Officers found marijuana, methamphetamine, and drug paraphernalia throughout the house. Chemicals used to manufacture methamphetamine were found in the garage and in a truck registered to appellant. Officers found two opaque juice bottles filled with liquid that contained GHB in the closet in the master bedroom. Officers also found a large amount of cash in the bedroom, including $232 in Gray's purse, $150 in the headboard, and $200 in an empty check wallet. Max Courtney, lab director for Forensic Consultant Services, testified that an analysis of the two bottles showed they contained 160.8 grams and 107.2 grams of GHB. Weber testified the amount of GHB found in the bottles indicated an intent to deliver because only one capful of GHB would represent a dose. Detective Anthony Gipson testified the quantity of GHB found indicted an intent to deliver because the 268 grams of GHB found in the bottles represented 268 individual one-gram uses or 536 half-gram uses. Gipson testified the quantity of GHB indicates it was not for personal use. Appellant did not testify during the guilt/innocense phase of the trial. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The standard is the same for both direct and circumstantial evidence cases. See Edwards v. State, 813 S.W.2d 572, 575 (Tex. App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly possessed with intent to deliver GHB in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a), (d) (Vernon 2003). To do this, the State must establish an affirmative link between appellant and the contraband See Gabriel v. State, 842 S.W.2d 328, 331 (Tex. App.-Dallas 1992), aff'd, 900 S.W.721 (Tex.Crim. App. 1995). If the accused does not have exclusive possession of the place where the contraband was found, the State must affirmatively link the accused to the contraband See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: 1) the accused's proximity to and accessibility of the contraband; 2) the quantity of the contraband found; 3) whether the contraband was in plain view; 4) whether the accused owned or had the right to possess the place where the contraband was found; 5) whether the accused possessed a large amount of cash; and 6) whether the accused made incriminating statements when arrested. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.); see also Pettigrew v. State, 908 S.W.2d 563, 571 (Tex. App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband See Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except the accused's guilt. See Brown, 911 S.W.2d at 748. Discussion
Appellant argues the evidence is legally and factually insufficient to prove the element of intent to deliver. Appellant argues the evidence showed the GHB found in appellant's bedroom, along with other drugs and paraphernalia, was for personal use and not with intent to deliver The State responds the evidence is legally and factually sufficient to support the jury's guilty verdict. We agree with the State. The "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. See Taylor, 106. S.W.3d at 831. Here, the evidence showed the quantity of GHB found in two plastic bottles represented at least 268 individual doses. Two officers testified the quantity of GHB found in appellant's bedroom indicated an intent to deliver. Gipson further testified that the quantity of GHB, along with the $582 cash hidden in three places in the bedroom and other drug paraphernalia, indicated an intent to deliver. Intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Id. Having reviewed all of the evidence, we conclude it is legally and factually sufficient to support appellant's conviction. We overrule appellant's two points of error, We affirm the trial court's judgment.