No. 05-05-01657-CR
Opinion issued November 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-49609-Wim. Affirmed.
Before Justices MOSELEY, FRANCIS and MAZZANT.
Opinion By Justice MAZZANT.
Royal Jackson appeals his conviction for possession with intent to deliver cocaine. In two issues, he alleges the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
In February of 2005, Mark Harris, an officer in the Narcotics Division of the Dallas Police Department, received information from a patrol officer about possible narcotics-related activity at apartment number fifty-one, 8003 Rothington Road, in Dallas, Texas. This apartment is located in what Dallas Police officers often refer to as "the circle," a "high activity area." Based on the information he received from the patrol officer, Harris started an investigation. Harris's investigation included surveillance of the apartment and the use of a confidential informant. The informant went to the apartment and purchased drugs at the front door with unmarked currency, but she did not enter the apartment. The informant reported to Harris that the person who answered the door had a firearm. Harris conducted surveillance of the apartment three times over the course of "a couple of weeks" before applying for a search warrant. On the afternoon of February 18, 2005, a team of law enforcement officers executed a search warrant on the apartment. A "slammer" was used to gain entry. Officers also used a "distraction device," which produces a "stun flash" and loud noise. As he entered the apartment, Harris saw appellant "standing in the hallway inside the apartment." Officer David Potts recalled that appellant was located "just inside the front door between . . . the kitchen and the . . . front door." Harris saw appellant run toward the back door of the apartment. Potts detained appellant and placed him in restraints. Officers also detained two other individuals, one of whom was carrying a loaded pistol. Evidence recovered from the apartment suggested it was being used as a "drug house." Officers found a loaded assault rifle on the living room floor. When asked about this, Harris agreed it was unlikely a customer would have been allowed inside the apartment due to the presence of a loaded assault weapon in "open view inside the living room." Officers also found a loaded nine millimeter semiautomatic pistol, a revolver, and walkie-talkies . In the kitchen, officers found $225 in cash, a razor blade, a scale covered with white powder residue, a calculator, two pots with white powder residue, and powder and rock cocaine. Officers also found a video game console in the apartment and an "IOU" written in crayon to one of the arrested suspects indicating a debt in the amount of five dollars. Barry Ragsdale, a Dallas Police Department Narcotics Division officer, testified that several large "chunks" of cocaine retrieved from the apartment were part of a much larger "cookie." The items found in the apartment-including the drugs, razor blade, scale, and calculator-suggested to Ragsdale that people in the apartment were "weighing and cutting the amount of rocks and the size of rocks that people are ordering, or they're just getting ready to package it up." Ragsdale also explained that when cocaine residue is found on the balance of a scale, it is evidence that someone has been "cutting the cookie into the size blocks the individual might be selling." He agreed with the prosecutor that an apartment where, as in this case, the bathroom has no toiletries or towels and the closet does not have a wardrobe of clothing is not a house where people live but is "a crack house or a drug house" where "people could work in shifts." He claimed the firearms found in close proximity to the front door of the apartment indicated the weapons were being used to guard the apartment and the drugs. Jennifer Hight, a chemist for the Southwestern Institute of Forensic Sciences, tested the cocaine recovered from the apartment. The total weight of the cocaine she tested was 73 grams, or 95 grams with the adulterants and dilutants. Two small plastic "baggies" containing a "hard white material" and a "white powder material" were not analyzed because the weight of these substances would not have affected appellant's punishment range. Appellant's mother, Rita Jackson, and his sister, Demetria, were the only witnesses who testified for the defense. Rita testified that appellant lived with her and her daughter at their apartment at 2501 Webb Chapel Extension, in Dallas, Texas. She also explained that appellant did not have a "payroll job," but he earned "walking-around money" by cutting hair for family and friends. Demetria also claimed appellant earned "walk-around" money by cutting hair. Appellant did not own a car and often rode the bus. On the day her son was arrested, Rita was at work. She had never been to the apartment at 8003 Rothington Road and had never heard of the address. Appellant was convicted by the jury of possession with intent to deliver cocaine in the amount of four grams but less than 200 grams. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (d) (Vernon 2005). The trial court assessed punishment at eighteen years in prison . Discussion
In his first and second issues, appellant claims the evidence is legally and factually insufficient to support his conviction for possession with intent to deliver cocaine. Appellant argues the State did not demonstrate sufficient "affirmative links" connecting him to the cocaine. We disagree. Standards of Review We apply familiar standards when reviewing challenges to the legal and factual sufficiency of the evidence. In a legal sufficiency review, we examine all the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In a factual sufficiency review, we consider 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, 2006 WL 2956272, *7 (Tex.Crim.App. Oct. 18, 2006). Applicable Law To establish the unlawful possession of a controlled substance with intent to deliver, the State must prove the accused exercised care, control, and management over the contraband and knew that the matter possessed was cocaine. Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2005); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The State need not prove exclusive possession of the contraband for conviction. Poindexter, 153 S.W.3d at 406. When the accused is not in exclusive possession of the place where the contraband is found, however, we cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes an "affirmative link" between the accused and the contraband. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. 1981). In other words, the State must establish that the accused's connection with the substance was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). In determining whether sufficient affirmative links exist, we examine factors such as: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia; (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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Id. at 831. It is the "logical force" of the factors, not the number of factors present, that determines whether the elements of the offense have been established. Id.; see also Smith v. State, 176 S.W.3d 907, 916 (Tex.App.-Dallas 2005, pet. ref'd). Analysis In the present case, appellant argues that the evidence is insufficient to link him to the cocaine because he did not reside at the apartment where the drugs were found, nor was he in exclusive control of the location. To support this argument, he points to his mother's testimony that he resided with her at the time of his arrest. Appellant also argues there was no evidence he possessed a weapon or had a large amount of cash in his possession. In addition, he points to the absence of evidence he made any furtive gestures, and he argues that he "only attempted to flee from a very large overbearing 6' 6" police officer." Appellant also claims he was not in close proximity to the drugs; he was not under the influence of drugs at the time of his arrest; he did not make any incriminating statements; and he did not possess other contraband. Moreover, he points out that Harris admitted appellant's physical description is different from the two suspects described in the search and arrest warrant, and there is no evidence appellant sold drugs. After examining the record, however, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant knowingly possessed the contraband found inside the apartment. Although appellant was not alone in the apartment and did not have exclusive control over the premises, the record shows the presence of enough "affirmative links" to establish that his connection to the controlled substances was more than fortuitous. To begin with, he was present when the search was executed. The record shows appellant was inside the apartment when officers entered, and the door was locked. Law enforcement officers found controlled substances in plain view, as well as in enclosed places. Appellant was in close proximity to this contraband and could have accessed it through the open passage to the kitchen from his location in the front hall area of the apartment. Furthermore, immediately after officers entered the apartment, appellant attempted to flee toward the rear of the apartment. The State also provided evidence indicating it was unlikely appellant was a casual visitor to the apartment or a "customer." Potts and Ragsdale testified that customers are usually not allowed into places where contraband is kept because of the presence of large amounts of money and weapons. When we examine the evidence in the light most favorable to the verdict, we believe a rational jury could have found that these facts sufficiently linked appellant to the contraband found inside the apartment. Accordingly, we conclude that the evidence is legally sufficient to support the conviction. Appellant's first issue is overruled. Appellant also claims the evidence is factually insufficient. As the factfinder in this case, the jury was free to reject the testimony of appellant's mother and sister. The jury was also free to believe appellant attempted to flee not because he was intimidated by the physical appearance of one police officer but because he was involved in the possession and distribution of illegal narcotics. Moreover, the lack of firearms, large amounts of cash, or other contraband on appellant's person, and the lack of evidence appellant made any furtive gestures or incriminating statements, does not undermine the jury's verdict. As previously noted, it is not the number of factors present that is important but rather the "logical force" that they create to prove that the defendant knowingly possessed the controlled substance. See Smith, 176 S.W.3d at 916; Taylor, 106 S.W.3d at 831. Giving appropriate deference to the jury's assessment of the evidence and its resolution of the evidentiary conflicts, and considering all of the evidence in a neutral light, we conclude the evidence is factually sufficient to support the conviction. Appellant's second issue is overruled. We affirm the trial court's judgment.