No. 14-03-00251-CR.
Opinion filed May 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 893,252. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Willie Hurtado Campaz, appeals a conviction for possession with intent to deliver cocaine. In five issues, he contends the evidence is legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
BACKGROUND
During surveillance of a townhouse, several officers of the Houston Police Department's Narcotics Division saw a man drive out of the townhouse garage. Some of the officers followed him and pulled him over for a traffic violation. He gave the officers permission to search his car and the townhouse. When the officers entered the townhouse garage, Luis Chia-Ochoa was standing in the garage, and appellant was standing in the doorway leading from the garage into the kitchen area. When Chia-Ochoa saw the officers, he took a baggie of cocaine from his pocket and threw it on the ground. While Chia-Ochoa was being detained, appellant ran into the kitchen, and officers heard a slam from that area. An officer ordered appellant out of the townhouse, and he was arrested. Appellant's arms and hands were very wet, as was a counter in the kitchen. No other people were in the townhouse. The officers searched the townhouse where they found two kilos of cocaine in a boiler pan under the stove. They also found balloons, a large amount of duct tape, a tin can containing crack cocaine, and a digital scale in the kitchen drawers. Kilo presses, hydraulic jacks, powder cocaine, and more duct tape and balloons were found throughout the townhouse. The townhouse was very sparsely furnished, and there was little indication that it was being used as someone's residence. DISCUSSION
A person commits an offense if he knowingly possesses cocaine with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon 2003). To establish the unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, control, or custody over the substance, and (2) was conscious of his connection with it and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Evidence which affirmatively links the accused to the contraband suffices as proof that he possessed it knowingly. Id. This evidence can be either direct or circumstantial. Id. In either case, the evidence must establish that the accused's connection with the drugs was more than just fortuitous. Id. However, the evidence need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt. Id. at 748. Affirmative links may include (1) appellant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant's proximity to and accessibility of the narcotic; (4) whether appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor from the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). However, there is no set formula of facts necessary to support an inference of knowing possession. Id. Rather, affirmative links are established by a totality of the circumstances. Id. The number of affirmative links is not as important as the logical force they have in establishing the offense. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Additionally, the quantity of the contraband may also be considered as an affirmative link. Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). LEGAL AND FACTUAL SUFFICIENCY
Appellant claims the evidence is legally and factually insufficient to support his conviction because the State failed to prove an affirmative link showing he had knowledge of the cocaine and exercised care, control, or custody over it. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. 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). In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if "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." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Although we may disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid our substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Appellant claims the State proved only that he was present at the place where the cocaine was found, which is not a sufficient affirmative link. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). However, the State's evidence indicates the townhouse was not used as a residence. Instead it was used solely as a "stash house" to package and distribute drugs. A kilo press, hydraulic jacks, balloons, and a large amount of duct tape, all used for packaging cocaine, were in plain view in the garage. Additionally, another hydraulic jack was being used to prop open the door leading from the garage to the kitchen area. More cocaine and packaging materials were found throughout the townhouse. The quantity of cocaine found in the kitchen, two kilos, had a "street value" of $200,000. Appellant was present when the officers found the cocaine, and he had access to it. He was standing next to the kitchen when officers first saw him. Further, he fled from the police into the kitchen where the two kilos of cocaine were located. The officers heard a "slam" come from the kitchen, and appellant's arms and hands, as well as a kitchen counter, were very wet as though appellant had been cleaning. Appellant contends the lack of certain evidence supports his challenge to the sufficiency of the evidence. For example, he points out that there were no fingerprints on the cocaine container and no controlled substances or large amounts of cash on appellant's person, he was not under the influence of drugs, and he made no incriminating statement. However, 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 cocaine. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976). Appellant also claims his movement into the kitchen when the officers entered the garage was not evidence of his guilt because the officers were in plain clothes, and at least one had his gun drawn. However, we note that at least one of the officers in plain clothes was wearing a "Raid" jacket, and at least one uniformed officer was present to alert anyone inside the townhouse that they were police. Therefore, there is evidence that appellant fled because police officers entered the townhouse. Viewing all the evidence in the light most favorable to the verdict, it is sufficient to affirmatively link appellant to the cocaine. Additionally, the jury's finding that appellant knowingly possessed cocaine was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant's five issues. Accordingly, the judgment of the trial court is affirmed.