No. 14-06-00944-CR
Opinion Filed July 19, 2007. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1039113.
Panel consists of Justices YATES, EDELMAN, and FROST.
KEM THOMPSON FROST, Justice.
Challenging his conviction for possession with the intent to deliver at least 400 grams of cocaine, appellant Tomas Mayo Pacheco asserts that the evidence is factually insufficient to support his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Alfonso Alvarez with the Pasadena Police Department received appellant's name and telephone number from a confidential informant in connection with a narcotics investigation. Immediately thereafter, Officer Alvarez, working undercover, called appellant to inquire about the purchase of cocaine. Appellant agreed to meet Officer Alvarez in the parking lot of a pool hall later that same afternoon. At their meeting, the two men discussed both quantity and price. Officer Alvarez then asked appellant to contact him when he was ready to make the exchange. About a week later, on August 29, 2005, appellant contacted Officer Alvarez and indicated he was ready to proceed with the transaction as a load of cocaine had arrived. The undercover officer stated that he wished to purchase five kilograms of cocaine. Appellant responded that he had four kilograms with him, and suggested that they meet at an auto mechanic store in Pasadena. When Officer Alvarez arrived at the agreed location, he called appellant, who already was inside the store at the time. Appellant walked outside toward the officer's vehicle. Officer Alvarez asked appellant if he had the cocaine, and appellant indicated he did. The two men then walked toward another vehicle parked nearby. Appellant told the individual in the driver's seat of the parked vehicle to "show him [Alvarez] the stuff. Appellant and the other individual debated until appellant finally opened the back passenger door, pointed to a black bag on the back seat, and told Officer Alvarez, "[I]t's right there." At that point, Officer Alvarez signaled the officers maintaining surveillance. Appellant and the other participant were arrested. A field test of the substance in the black bag confirmed that it was cocaine. Further analysis showed that the cocaine weighed approximately 3.8 kilograms. Officer David Leal with the Pasadena Police Department met with appellant and informed him of his rights. Appellant stated that he understood his rights and agreed to waive them and make a statement. In a videotaped recording, appellant stated that Officer Alvarez contacted him about purchasing five kilograms of cocaine, but he could procure only four kilograms. Appellant stated that he was asking for $15,500.00 per kilogram of cocaine. Appellant was charged with the felony offense of possession of a controlled substance with the intent to deliver. He pleaded "not guilty." In the trial that followed, a jury found appellant guilty, and the trial court sentenced him to sixty years' confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $1,000.00. II. FACTUAL SUFFICIENCY
In two issues, appellant contends that the evidence is factually insufficient to support his conviction. In his first issue, he argues that the evidence is factually insufficient to prove that he "knowingly" possessed the cocaine. In his second issue, he contends that the evidence is factually insufficient to show that he "intended" to deliver the cocaine. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See id; Fuentes, 991 S.W.2d at 271. A. Is the evidence factually sufficient to support the jury's findings that appellant knowingly and intentionally possessed a controlled substance?
A person commits the offense of possession with intent to deliver a controlled substance if he knowingly or intentionally possesses a controlled substance with the intent to deliver it. TEX. HEALTH SAFETY CODE ANN. § 481.112(e), 481.113(d) (Vernon Supp. 2006). To prove unlawful possession of a controlled substance, the State must establish the accused: (1) exercised care, control, custody, or management over the contraband; and (2) knew the matter was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). When the accused is not in exclusive possession of the place where the controlled substance is found, the State must prove additional facts and circumstances that affirmatively link the accused to the contraband such that one could conclude that the accused had knowledge of the contraband and exercised control over it. Guiton v. State, 742 S.W.2d. 5, 8 (Tex.Crim.App. 1987). Affirmative links are established when the evidence, direct or circumstantial, shows "the accused's" connection with the drug was more than just fortuitous. Poindexter, 153 S. W.3d at 405-06 (Tex.Crim.App. 2005) (quoting Brown v. State, 874 S.W.2d 744, 747 (Tex.Crim.App. 1995)). Courts have identified a non-exhaustive list of factors that may help to show an affirmative link to controlled substances; however, no set formula of facts necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref' d). Rather, affirmative links are established by a totality of the circumstances. Id. It is not the number of factors present that is controlling but, rather, the logical force they create to prove the defendant knowingly possessed the controlled substance. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Appellant contends he had no control over the contraband, and points to the following evidence that he claims contradicts possession: (1) he was not the owner of the vehicle in which the cocaine was found, (2) he was not the driver of the vehicle or in the vehicle where the cocaine was found, (3) he was not in "direct" possession of the cocaine, (4) there was no odor of contraband in the vehicle, (5) he had no additional contraband on his person, (6) he did not possess any narcotics paraphernalia, (7) he did not make any furtive gestures, attempt to conceal or destroy evidence, or even attempt to flee, (8) neither his fingerprints nor his DNA were found on the contraband, and (9) he had no special connection to the contraband. But the absence of some factors that may tend to establish an affirmative link is not evidence of innocence to be weighed against evidence connecting appellant to the narcotics. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976). Appellant was charged both as a principal and under the law of the parties. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2006). To prove appellant committed the offense of possession of a controlled substance as a principal actor, the State had to show that he (1) exercised actual care, custody, control, or management of the controlled substance and (2) was conscious of his connection with it and knew what it was. See TEX. HEALTH SAFETY CODE ANN. § 481.002(38) (Vernon Supp. 2006), § 481.112(a) (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). To support a conviction under the law of parties, the State had to show that appellant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 2006). Thus, to prove possession of a controlled substance as a party, the State had to establish (1) that another person possessed the contraband and (2) that appellant, with the intent that the offense be committed, solicited, encouraged, directed, aided, or attempted to aid the other's possession. See Woods v. State, 998 S.W.2d 633, 636 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Mere presence in the vicinity of a controlled substance or in a place where contraband is being used or possessed by others does not, by itself, support a finding that a person is a party to an offense. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet ref'd). For conviction of an accused either as a principal or as a party to the offense, the State must prove knowledge of the presence of cocaine. See TEX. HEALTH SAFETY CODE ANN. § 481.115(1) (Vernon 2006). The State, however, is not required to show that appellant had exclusive control over the contraband to show that he was guilty as a principal. Robinson v. State, 174 S.W.3d 320, 325 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). But when an accused is not in exclusive possession of the place where the contraband is found, a reviewing court 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, i.e., independent facts and circumstances that affirmatively link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. 1981). A[COMMENT1] n affirmative link may be established through either direct or circumstantial evidence. Id. The following evidence establishes the requisite affirmative link between appellant and the contraband: (1) appellant was in the auto store — the agreed location — at the time Officer Alvarez arrived, (2) Officer Alvarez asked appellant if he had the cocaine, and appellant indicated he did, (3) appellant and Officer Alvarez walked toward another vehicle parked nearby, (4) appellant told the occupant of the parked vehicle to "show him [Alvarez] the stuff", (5) appellant and the other individual went back forth in discussion until appellant finally opened the back passenger door, pointed at a black bag in the back seat, and told Officer Alvarez, A[I]t's right there, and (6) a field test conducted at the scene revealed that the substance in the black bag was cocaine. This direct and circumstantial evidence shows that appellant had care, custody, control, or management of the cocaine in the back seat of the vehicle. See Coleman v. State, 113 S.W.3d 496, 501 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex.Crim.App. 2004) (finding a safe in a home an enclosed space, and holding that when the contraband is found within an enclosed space it is a recognized factor in establishing an affirmative link between the accused and the contraband); Hudson v. State, 128 S.W.3d 367, 374 (Tex.App.-Texarkana 2004, no pet.) (finding trunk of car an enclosed space). It is the sole province of the jury to decide what weight is to be given to the evidence presented at trial, including contradictory testimony that turns on the jury's evaluation of credibility and demeanor of the witnesses. Cain, 958 S.W.2d at 408-09. The jury was free to believe any or all of the testimony of the State's witnesses. See id. at 409. The jury's decision will not be deemed manifestly unjust merely because it resolves conflicting views of the evidence in favor of the State. Id. at 410. As a reviewing court, we may not substitute our conclusions for those of the jury, nor may we interfere with the jury's resolution of conflicts in evidence. See Watson, 204 S.W.3d. at 414-17. Our review of the record shows the jury's decision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The evidence is factually sufficient to show that appellant knowingly possessed the cocaine. Accordingly, we overrule appellant's first issue. B. Is the evidence factually sufficient to support the jury's finding that appellant had an intent to deliver a controlled substance"
Appellant also argues the evidence is insufficient to support his conviction of possession with the intent to deliver. "Deliver" means to transfer, actually or constructively, a controlled substance to another. TEX. HEALTH SAFETY CODE ANN. § 481.002(8) (Vernon Supp. 2006). Intent to deliver a controlled substance can be proven by circumstantial evidence, such as the quantity of narcotics possessed, and the presence of the accused on the premises. Patterson v. State, 138 S.W.3d 643, 649 (Tex.App.-Dallas 2004, no pet.). "Intent can be inferred from the acts, words, and conduct of the accused". Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). Appellant asserts the evidence is factually insufficient to support the intent-to-deliver element because: (1) there is no evidence that appellant possessed any narcotics paraphernalia (such as plastic bags or scales) generally used in narcotics transactions, (2) appellant was not arrested inside a "crack" or "trap" house, (3) appellant did not have any weapons on his person, (4) there was no evidence that appellant personally consumed narcotics, (5) appellant did not try to destroy evidence or flee from the police, and (6) appellant did not own the vehicle in which the contraband was found. The evidence at trial showed that: (1) appellant agreed to exchange five kilograms of cocaine for money, (2) appellant actually possessed four kilograms of cocaine packaged for sale in a planned narcotics transaction, (3) appellant met the undercover police officer at an agreed location and at an agreed time to make the exchange, and (4) appellant admitted these facts in a subsequent statement to the police. Furthermore, the amount and value of the narcotics recovered from the vehicle exceeds the typical amount possessed for personal use. See Mack v. State, 859 S.W.2d 526, 528, 529 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (holding 8.9 grams of crack cocaine, valued at $600, a sufficient amount from which to infer an intent to deliver). Based on this evidence, we conclude the jury's decision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The evidence is factually sufficient to prove that appellant intended to deliver the cocaine. We overrule appellant's second issue. The trial court's judgment is affirmed.