Opinion
No. 05-06-01031-CR
Filed May 22, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F04-53726-LR.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
A jury convicted Corey Devon Gipson of possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. The trial court assessed punishment, enhanced by one prior felony conviction, at fifteen years in prison and a $1,000 fine. In two issues, appellant contends the evidence is factually insufficient to support the conviction and the trial court erred in denying his motion to disclose the identity of a confidential informant. We affirm. In his first issue, appellant contends the evidence is factually insufficient because it is ambiguous regarding whether his affiliation with the apartment where the drugs were found was that of a user or drug dealer. He points to inconsistencies and discrepancies in the evidence as showing the great weight and preponderance of the evidence contradicts the verdict. We disagree. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Legally sufficient evidence may still be factually insufficient if the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). We accord due deference to the jury's findings, but we are able to substitute, to a very limited degree, our judgment for the jury's determinations of the credibility and weight of the evidence. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17. We may not, however, substitute our judgment for that of the jury merely because we would have reached a different result. See Watson, 204 S.W.3d at 417. Instead, the record must show some objective basis for concluding the great weight and preponderance of the evidence contradicts the jury's verdict. See id. An accused commits an offense if he knowingly possesses with intent to deliver cocaine. See Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). The State's proof must show the accused exercised care, control, and management over the cocaine and he knew the substance possessed was cocaine. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The State need not prove the accused possessed the cocaine exclusively. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). If others had access to the place where the cocaine was found, the State's evidence must include independent facts and circumstances affirmatively linking the accused to the cocaine. Id. No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylor, 106 S.W.3d at 831. The number of links is less important than the degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Id. The State's evidence shows Dallas narcotics detectives Christopher Hight and Anthony Gipson placed a suspected "crack house" apartment under surveillance. The officers observed appellant frequently around the apartment, going in and out at least twice. To determine who was inside the apartment, Officer Scott Robert Sayers knocked on the door under the ruse of investigating a disturbance. Appellant answered Sayers's knock and came outside, shutting the door quickly behind him so Sayers could not see inside. Appellant told Sayers there was no one else present. Appellant gave Sayers his driver's license and Sayers copied down his information before leaving. Sayers identified appellant in court as the person he spoke with at the apartment. A confidential informant told Hight that a man known as "Little C" possessed drugs in the apartment. The confidential informant described "Little C" as a clean-shaven, medium-complected, black male about 5'6'' tall, weighing 160 pounds, with short black hair, gold teeth, and tattoos on his chest, arms, and shoulders. Hight used the confidential informant's information to procure a search warrant for the apartment. Before the warrant could be served, Ben Childress was seen leaving the apartment and was arrested after a brief pursuit. Officers discovered Childress possessed 77 grams of crack cocaine and $2,800 in cash. Although no one was in the apartment when the warrant was served, appellant and another individual were standing a few doors down from the apartment. Officers Jaime Castro and Phillip Elliott arrested appellant and searched him incident to arrest. Appellant did not resist or attempt to flee; the other individual was released. In appellant's pocket, Castro discovered a key, $575 in small-denomination bills, and a $100 bill. Hight testified the small denominations were significant because crack cocaine is sold as rocks worth $10 and $20 each. Upon entering the apartment, officers encountered a locked metal "burglar bar cage" installed inside the doorway. Hight testified drug dealers use such cages to protect themselves from robbers while allowing their customers to enter and purchase drugs unobserved by the police. The key from appellant's pocket fit one of two locks to the burglar bar cage. In the front room of the apartment, officers observed a semiautomatic handgun with a laser sight laying on a stereo speaker. The apartment was equipped with a video surveillance system allowing the occupant to see who was approaching the front door. On a table in plain sight, officers found a small rock of crack cocaine, a loaded magazine fitting the handgun, $301 in mostly small bills, and a saucer holding a razor blade and drug residue. Hight testified drug dealers use razor blades to cut up rocks of cocaine. A larger rock of crack cocaine was wrapped up in a t-shirt under the table. The officers also discovered a digital scale, a leather pouch, and a large plastic baggie containing smaller baggies used to package drugs. The aggregate weight of the cocaine recovered was 23.6 grams. In the master bedroom, Elliott discovered a rental receipt showing "Little C" had paid $500 rent and a vehicle registration renewal notice addressed to appellant at a different address. The apartment management provided the lease agreement for the apartment showing the lessee as "Corney Therman." Hight noted the similarity of "Corey" and Corney." Also, the social security number for "Therman" on the lease matched the first five digits of appellant's social security number and contained the same final four digits except two numbers were transposed and a one was substituted for a nine. Hight concluded appellant was the "Little C" selling drugs from the apartment because surveillance showed he was living there, his auto renewal form was in the apartment, he told Sayers he was alone, he is short in stature, and his first name begins with the letter "c." Hight testified that the amount of cash in appellant's pocket, and its composition as mostly small bills, indicated he was engaged in hand-to-hand drug transactions. Hight theorized appellant was selling drugs outside and putting the cash into his pocket. Hight explained that some drug dealers conduct narcotics sales where they live while others use an offsite location known as a "trap." Hight opined Childress was resupplying appellant with crack cocaine. From the quantity of cocaine present, the baggies, the scales, residue, razor blade, interior cage, and surveillance camera, Hight concluded appellant was operating a crack house and charged him with possession with intent to deliver cocaine. During his trial testimony, Gipson theorized that Childress was dropping off narcotics and appellant was using the apartment as a retail location. Gipson believed the quantity of cocaine recovered demonstrated an intent to deliver. Hight conceded during his testimony that appellant's appearance differed in some respects from the man the informant described in that appellant was dark-complected, he weighed less, and he did not have any tattoos. However, appellant's driver's license, admitted into evidence by the defense, shows he is 5'6" tall. Appellant also has gold teeth. No fingerprint or DNA evidence linked appellant to the apartment. Appellant had no cocaine residue on his hands. Hight admitted he had not checked to see if the 5'8" tall Childress had any tattoos or if any of Childress's keys fit the apartment locks. Hight did not trace the handgun's registration. Appellant concedes the apartment at issue was serving as a "crack house"but contends the evidence does not show he was the proprietor. Appellant points out officers had seen other drug users entering and leaving the apartment and no direct evidence showed that drugs were in the apartment when appellant answered Sayers's knock on the door. Furthermore, appellant suggests a drug user would likely lie to a uniformed police officer about the presence of others if he had a drug dealer in his apartment. Appellant's automobile license renewal form links him to a different address. No evidence establishes who had the key to the front door of the apartment or the key to the other lock on the burglar cage. Appellant had no drugs or paraphernalia on his person when he was arrested. Appellant contends the amount of cash he was carrying is not atypical for a law-abiding citizen. Regarding his identification, appellant argues no evidence in the record positively identifies him as "Little C." The search warrant affidavit identifies him by his name rather than as "Little C." Appellant contends someone else could have falsely provided his name to police. Appellant points to the discrepancies in the informant's description of the man who was dealing drugs and he suggests someone else with a darker complexion and tattoos was selling the drugs. Likewise, appellant contends the evidence is insufficient to show he used the alias "Corney Therman" or that there is not a real "Corney Therman." Finally, appellant suggests Childress could have been the drug dealer using the apartment. Childress left the apartment with drugs, his name begins with "c," his weight is closer than appellant's weight to the informant's description, he was carrying $2,800 in cash, he had keys that might have fit the apartment's locks, and he tried to flee from police. Despite minor discrepancies in the evidence, appellant's frequent presence in and around the apartment, the cash he was carrying, the key in his pocket, his automobile license renewal found well beyond the confines of the burglar bar cage, the signature on the lease using an alias similar to his own name, his statement to Sayers admitting his sole occupancy, and the fact that drugs, a gun, cash, and drug paraphernalia were in plain sight, suffice to affirmatively link him to the cocaine in the apartment. See Poindexter, 153 S.W.3d at 411 (defendant linked to cocaine and crack cocaine where large quantity of drugs in plain sight and in hidden location, utility bill and bail bond listed house as his address, his photograph found in house, and contraband in locked house more accessible to defendant than to general public); Hargrove v. State, 211 S.W.3d 379, 386 (Tex.App.-San Antonio 2006, pet. ref'd) (evidence was legally and factually sufficient to link defendant to marijuana found in home where he was present and alone, marijuana was easily accessible, digital scales were visible, numerous firearms and a bullet-proof vest were present, defendant had key to house, mortgage was in defendant's name, defendant paid some bills, and utility bill in house was addressed to defendant). The jury could reasonably infer that the 5'6" appellant was the "Little C" who paid rent on the apartment and operated the "crack house," and that Childress was his cocaine supplier. The quantity of cocaine present and the presence of packaging materials, a scale, and a razor blade establishes his intent to deliver the cocaine. See Poindexter, 153 S.W.3d at 412. The jury had the opportunity to consider the conflicting evidence appellant cites and it chose to resolve the issues of his identity and purpose for occupying the apartment against him. We conclude the jury's determination to convict appellant was not clearly wrong or manifestly unjust, nor was it against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625. Accordingly, we overrule appellant's first issue. In his second issue, appellant contends the trial court erred by denying his motion to disclose the identity of the confidential informant. Appellant contends the informant is a material witness and the informant's testimony is necessary to determine his guilt or innocence because only the informant can testify regarding whether he is "Little C" and address the discrepancies between his appearance and the description the informant provided to Hight. Appellant further contends the trial court erred in denying his motion without first holding an in-camera hearing on the disclosure issue. Appellant contends the error harmed him because the confidential informant was the key witness against him and he was deprived of the opportunity to cross-examine the informant. The State responds that the trial court did not err because the confidential informant was not a fact witness, but merely provided probable cause for the issuance of the search warrant. We agree with the State. Rule of evidence 508 provides a privilege for the State to withhold a confidential informant's identity. See Tex. R. Evid. 508(a). Among several exceptions, the confidential informant's identity must be disclosed if the informant's testimony is necessary to fairly determine the accused's guilt or innocence. See Tex. R. Evid. 508(c)(2). The accused bears the burden to establish a "plausible showing" that the confidential informant's testimony is necessary for a fair determination of guilt or innocence. See Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991) (en banc); Long v. State, 137 S.W.3d 726, 732 (Tex.App.-Waco 2004, pet. ref'd). To meet his burden, the accused must provide more than mere conjecture or speculation. Bodin, 807 S.W.2d at 318. The accused must show the informant's testimony would significantly aid the jury in determining guilt or innocence. Id. If the accused meets his burden, the trial court must review the testimony in-camera to allow the State to rebut the accused's plausible showing. Long, 137 S.W.3d at 732. We review the trial court's determination to deny appellant's motion for an abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Hight did not arrest and charge "Little C" for the possession offense witnessed by the confidential informant. Rather, appellant was arrested and charged for possessing with intent to deliver the cocaine discovered during the later search of the apartment. During trial, Hight testified that he obtained a search warrant rather than an arrest warrant because he did not want to produce his confidential informant. Hight testified he was concerned about the possibility of retaliation against the informant and his ability to use the informant in future investigations. Undisputed evidence shows the confidential informant was not present when the search warrant was executed. Whether appellant possessed and sold drugs to the informant or others at other times or on different dates has no bearing upon whether he possessed cocaine with the intent to deliver at the time of the search. Thus, we reject appellant's contention that the confidential informant is a material witness. Compare Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991) (informant who accompanied undercover officer and witnessed drug offense at issue was material witness) with Long, 137 S.W.3d at 732-33 (informant who supplied information establishing probable cause for issuance of search warrant not material witness in methamphetamine manufacture prosecution arising from execution of the warrant where informant was not present during search and evidence supporting conviction supplied by officer who conducted the search). Gipson identified appellant as the man present at the apartment during surveillance. Sayers identified appellant as the occupant of the apartment with whom he spoke. The informant's description, although not perfect, does accurately describe appellant's race, height, and gold teeth. Most importantly, appellant was in the vicinity of the apartment with a key to the locked burglar cage when the officers arrived to search the premises. We conclude appellant did not carry his burden to plausibly show that the confidential informant is a material witness or that the informant's testimony is necessary to fairly determine his guilt or innocence. Because the trial court did not abuse its discretion, we overrule appellant's second issue. We affirm the trial court's judgment.