Nos. 05-08-00157-CR, 05-08-00158-CR, 05-08-00159-CR
Opinion issued March 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-50045-UV, F07-50714-SV, F07-50715-SV.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice FITZGERALD.
Brandon Devone Mitchell appeals from three convictions for possession with intent to deliver cocaine and heroin. In four issues, appellant contends the trial court abused its discretion in revoking his community supervision in one case, the evidence is legally and factually insufficient to support the jury's verdicts in two cases, and the trial court's judgment should be modified to show the correct punishment assessed in one case. We modify and affirm the trial court's judgments.
Background
In cause no. 05-08-00157-CR, appellant waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for five years, and a $3500 fine. The State later moved to revoke appellant's community supervision, alleging, inter alia, appellant committed two new drug offenses. At a hearing, the trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at six years' imprisonment and a $3500 fine. In cause nos. 05-08-00158-CR and 05-08-00159-CR, a jury convicted appellant of two offenses: possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams and possession with intent to deliver heroin in an amount of four grams or more, but less than 200 grams. The trial court assessed punishment at six years' imprisonment and a $500 fine in each case. Cause Nos. 05-08-00158-CR and 05-08-00159-CR
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his convictions for possession with intent to deliver cocaine and heroin because nothing links him to those drugs, which were found in concealed containers inside a residence. Appellant asserts that because he did not live at the house where the drugs were found, was not inside the house when the drugs were found, and was not the only person at the house that day, the evidence is insufficient to link him to the drugs. The State responds that the evidence is legally and factually sufficient to link appellant to the drugs and supports the jury's verdicts. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine 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, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly possessed with intent to deliver cocaine and heroin in amounts of four grams or more, but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a), (d) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and heroin and knew they were contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). Possible links include: (1) whether the accused 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 accused, (4) whether the place where the drugs were found was owned by the accused, (5) whether the accused attempted to flee, (6) the amount of drugs found, and (7) whether the accused possessed weapons. See Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). Evidence Presented
On April 3, 2007, several Dallas narcotics officers executed a search warrant at a suspected drug house. When the officers arrived at the location, they saw appellant and a woman sitting on the front porch. After officers ordered appellant and the woman to get down on the ground, appellant fled the scene. He was apprehended by officers after a brief chase. When the officers searched the suspect house, they found cocaine, heroin, and items belonging to appellant in the front bedroom. Several members of the search warrant team went to the suspect house to execute the warrant. They arrived in a van with the word "Police" on it, and wore vests with the word "Police." Officer Paul Lapiano was the first officer to exit the van. Lapiano testified that as the van neared the suspect house, he saw appellant sitting on the porch with a woman. Lapiano exited the vehicle and immediately yelled, "[P]olice, get on the ground." The woman complied, but appellant jumped up and ran down the street. Another officer pursued appellant while Lapiano proceeded to enter the house through a side door. After checking for other suspects, he went back outside and assisted other officers. Appellant had been apprehended and brought back to the house. Officer Mark Michaels was driving the police van. Michaels testified he saw appellant sitting on the porch of the suspect house as the van approached. Appellant looked in the direction of the van as the officers exited the vehicle. Michaels heard team members order appellant to get down on the ground. Appellant immediately jumped up and ran down the street. Michaels chased appellant on foot down the street, between two houses, and over a tall wooden fence. As appellant tried to go over a second fence, appellant ran out of energy and laid down on the ground. Michaels handcuffed appellant, searched him for weapons, and took him back to the suspect house. Michaels testified appellant did not have any drugs, weapons, money, or a wallet on his person. Officer Julio Ortiz testified he employed a C.I. to purchase drugs from the house on two occasions before obtaining a search warrant. The C.I. told Ortiz he had purchased heroin from a man in a bedroom at the front of the house next to the kitchen. Ortiz followed other team members into the house and searched for other occupants. Ortiz found a woman hiding in the bathtub in a bedroom at the back of the house. The woman appeared to be homeless and was an addict. Ortiz took the woman outside to the front yard, then went back inside the house. When Ortiz went into the front bedroom, he saw a bed in the middle of the room, a small refrigerator on the right side of the bed, a night stand with a microwave oven on top on the other side of the bed, and men's clothing and tennis shoes in the bedroom's closet. Ortiz found a wallet on top of the microwave that contained a social security card in appellant's name, and a Texas identification card with appellant's name and picture on it, but with an address different from that of the suspect house. Ortiz also found a rental application in appellant's name with the address of the suspect house listed on the line that said "current address." The social security number listed on the application matched the social security card in appellant's name found inside the wallet. Ortiz testified he found a silver lockbox and a black safe next to the bed. The lockbox contained cash in various denominations, including two $100-bills, forty $20-bills, twenty $10-bills, sixty-one $5-bills, and two-hundred $1-bills. After prying open the safe, Ortiz found over a hundred small baggies containing crack cocaine. Inside the refrigerator, Ortiz found 190 capsules of heroin. Lab analysis on sixty-three of the capsules showed they contained 6.1 grams of heroin. Analysis of the contents of 103 small baggies showed they contained 46 grams of cocaine that was ninety-one percent pure and nine percent bulk. Ortiz testified there was no furniture in the house except for the front bedroom. The back bedroom appeared to be a "smoking room," which is where buyers would go to use their purchases. Ortiz found crack pipes smashed on the floor in the back bedroom and empty baggies and capsules. Ortiz testified they did not arrest either woman found at the house because the women did not have any drugs or paraphernalia on them when searched, did not have any warrants, and there was no indication that a woman was living in the house. Only men's clothing and shoes were found inside the house. The women were allowed to leave the scene. Detective Kurt Carroll testified as a expert in narcotics and drug trafficking. Carroll told the jury cocaine is usually sold in individual dosage units packaged as "rocks" for sale. One dose of cocaine is equivalent to about one-tenth of a gram, and would sell for between five and twenty dollars per dose. Forty-six grams of cocaine would represent 460 individual dosage units that would sell for between $2300 and $9200. Heroin can be packaged in capsules, paper "bindles," a small piece of tin foil, or a small baggie. One capsule of heroin equals one dosage unit, and it sells for between seven and fifteen dollars per capsule. One-hundred-ninety capsules of heroin would represent 190 individual dosage units that would sell for between $1340 and $2850. Carroll testified the quantity of cocaine and heroin found in this case would not be for personal use. Appellant did not present any evidence at trial. Discussion
Appellant argues nothing links him to the cocaine and heroin because he was not inside the house when Ortiz found the drugs, there were other individuals at the house, and he did not live at the house. The evidence presented shows appellant was at the house when police officers executed a search warrant on the premises. Appellant fled the scene, but was apprehended a short time later. The cocaine and heroin were found in the same bedroom where appellant's wallet, identification card, social security card, and a rental application in appellant's name were also found. Although there were two women found at the house, the officers determined they were not living in the house based upon the facts the women had no drugs or paraphernalia on them when searched, no outstanding warrants, and there was only men's clothing found inside the house. It was the jury's function to resolve the conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing all of the evidence under the proper standard, we conclude it is legally and factually sufficient to support appellant's convictions. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Porter, 873 S.W.2d at 732. We resolve appellant's first and second issues against him. Cause No. 05-08-00157-CR
In his third issue, appellant contends the trial court abused its discretion in revoking his community supervision because the State failed to prove, by a preponderance of the evidence, that he violated a condition of his community supervision. Appellant argues the State failed to link him to the drugs found concealed in closed containers inside a residence. The State responds that the trial court did not abuse its discretion in revoking appellant's community supervision. We have already concluded the evidence is legally and factually sufficient to support appellant's convictions for two new cases of possession with intent to deliver cocaine and heroin. By committing two new offenses, appellant violated the conditions of community supervision. Thus, the trial court did not abuse its discretion in revoking appellant's community supervision. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006) (appellate review of an order revoking probation is limited to determining whether trial court abused its discretion); see also Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.-Fort Worth 2005, pet. ref'd.) (a finding of a single violation of community supervision is sufficient to support revocation). We resolve appellant's third issue against him. Modify Judgment
In his fourth issue, appellant contends the trial court's judgment in cause no. 05-08-00158-CR should be modified to show the punishment assessed is six years' imprisonment. The State agrees that the judgment should be modified to show the trial court imposed a sentence of six years. The record shows the trial court sentenced appellant to six years' imprisonment and a $500 fine. However, the written judgment incorrectly recites the sentence as seven years' imprisonment. We sustain appellant's issue. We modify the trial court's judgment to show the sentence imposed is six years imprisonment. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Conclusion
In cause nos. 05-08-00157-CR and 05-08-00159-CR, we affirm the trial court's judgments. In cause no. 05-08-00158, we affirm the trial court's judgment as modified.