Opinion
Nos. 05-09-00903-CR, 05-09-00904-CR
Opinion Filed August 23, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-61125-S F06-61126-S.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Appellant Jonathan Ray Lindsey appeals his convictions for possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams, and possession of marijuana in an amount of fifty pounds or less, but more than five pounds. In two issues, appellant contends the evidence is factually insufficient to support (1) his conviction for possession with intent to deliver cocaine, and (2) the affirmative deadly weapon findings in both cases. For the following reasons, we affirm the trial court's judgments. On the morning of the offenses, Dallas police responded to a "shots fired" call at a house in the Oak Cliff area of Dallas. Officer Alexander Tarrant was the first to arrive at the scene. Tarrant approached a side door that had been kicked in and saw spent shell cases and baggies of marijuana on the ground. He backed away from the house and waited for back up. When back-up arrived, Tarrant and other officers entered the house to perform a "protective sweep." No one was present in the house, but the officers saw large amounts of marijuana in plain view throughout the house. Police obtained a search warrant. Police executed the warrant seizing about fifteen pounds of marijuana and 197 grams of crack cocaine. The cocaine was found in a back bedroom closet. Police also found several firearms, ammunition, drug packaging materials and scales commonly used to weigh narcotics. The firearms — three nine-millimeter handguns, a revolver, and a rifle — were not in plain view. While police were searching, appellant arrived at the scene. Appellant gave a voluntary statement in which he stated that he had been at the house that morning packaging marijuana when five men broke in and started firing. Appellant fled. Appellant admitted he had been selling marijuana from the house for about a month and using proceeds from the marijuana sales to help pay the rent. Appellant denied that any of the weapons in the house were his. To further connect appellant to the house, the State presented evidence that appellant and another individual sublet the house from Johnny B. Nelson. Nelson had a written lease with the owner of the house but later sublet it to appellant and the other man. According to Nelson's testimony, the men sublet the house for at least two months. There was no written agreement. The State called Sergeant Barry Ragsdale to testify as an expert witness. Ragsdale testified generally about how drug houses operate. He explained how several individuals often participate in a drug distribution enterprise, each person being responsible for a specified task. According to Ragsdale, the amount of marijuana and cocaine found in this case indicated the house was being used to sell drugs. The weapons and scales also indicated a drug delivery enterprise. Ragsdale also testified that it was not unusual for drug dealers to leave less expensive drugs like marijuana in plain view, while hiding more valuable drugs like cocaine. After hearing the evidence, the jury found appellant guilty of possession with intent to deliver cocaine and possession of the marijuana. The jury also made an affirmative finding that appellant used or exhibited a deadly weapon in both cases. This appeal followed. In his first issue, appellant contends the evidence is factually insufficient to prove he possessed the cocaine. In conducting a factual sufficiency review, we consider all the evidence in a neutral light. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We give deference to the jury's determinations concerning witness credibility and weight of the evidence, but may reverse a verdict to prevent "manifest injustice." Id. at 518, 525; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). We may conclude the evidence is factually insufficient if either (1) the supporting evidence is "too weak" to support the jury's verdict or (2) considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Laster, 275 S.W.3d at 518. To prove possession of a controlled substance, 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. See 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). 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 the contraband. See Taylor, 106 S.W.3d at 830-31. Possible affirmative links include, but are not limited to: (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 possessed other contraband or controlled substances when arrested; (5) whether the defendant made incriminating statements when arrested; (6) whether other contraband or drug paraphernalia were present; (7) whether the defendant owned or had the right to possess the place where the controlled substance was found; (8) whether the place where the controlled substance was found was enclosed; (9) whether the defendant was found with a large amount of cash; and (10) whether the conduct of the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162 n. 12. However, such links are just factors that may circumstantially establish the sufficiency of the evidence to prove a knowing "possession." 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. After reviewing the evidence in a neutral light, we conclude the evidence is factually sufficient to show appellant knowingly possessed the cocaine. The State presented evidence that appellant sublet the house where the cocaine was found in a back bedroom closet. The amount of cocaine found was large, having a street value of about $20,000. Large amounts of marijuana were also found throughout the house, including in the back bedroom. Appellant admitted being at the house on the day of the search packaging the marijuana for resale. Appellant also admitted that he had been selling marijuana out of the house for a month and helping to pay the rent with proceeds from the marijuana sales. Several firearms, with ammunition, were also found throughout the house. Finally, three scales, commonly used for weighing narcotics, were also found in the house. Given the totality of the circumstances, including appellant's connection to the house, his admission about marijuana sales from the house, the large quantity of cocaine found, the firearms, and scales, we conclude the evidence is sufficient to link appellant to the cocaine in such a manner and to such an extent as to infer knowing possession. Reviewing the evidence in a neutral light, we cannot conclude the evidence is either too weak to support the jury's determination or, considering conflicting evidence, the verdict is against the great weight and preponderance of the evidence. We resolve the first issue against appellant. In his second issue, appellant contends the evidence is factually insufficient to support the deadly weapon findings in both cases. "Used" a deadly weapon during the commission of a felony offense "means that the deadly weapon was employed or utilized in order to achieve its purpose." Smith v. State, 176 S.W.3d 907, 919 (Tex. App.-Dallas 2005, pet. ref'd). A deadly weapon may be "used" even if it is merely possessed, if that possession facilitates the associated felony offense. Id. Here, the State presented evidence that appellant sublet the house where large amounts of marijuana and cocaine were found. Appellant admitted he sold marijuana from the house. Five firearms and ammunition were found in the house. Expert testimony was presented that drug dealers commonly use firearms to protect their drugs. A rational jury could infer appellant both possessed the firearms and used them to facilitate his possession of the drugs. See Smith, 176 S.W.3d at 919-20. We cannot conclude the evidence is too weak to support the jury's finding that appellant used a deadly weapon, nor can we conclude the finding is against the great weight and preponderance of the evidence. We resolve the second issue against appellant. We affirm the trial court's judgments.