No. 01-06-00401-CR
Opinion issued October 18, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 981325.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Robert Earl Williams, of possession with intent to deliver cocaine weighing more than one gram and less than four grams. Appellant pleaded true to both enhancement paragraphs alleged in the indictment, and the trial court sentenced him to imprisonment for 30 years. In six points of error, appellant argues that the evidence is legally and factually insufficient to show that (1) he knowingly possessed a controlled substance (a) weighing less than one gram or (b) weighing more than one gram and less than four grams and (2) he possessed a controlled substance with intent to deliver. We affirm.
Background
In March 2004, Officer L. Byrd of the Houston Police Department ("HPD") arranged for a confidential informant to make a controlled buy of cocaine from appellant's residence in Houston, Texas. As the informant was buying the cocaine, Officer Byrd waited in his undercover car. The informant told Officer Byrd that the man who sold him the cocaine was named "Bobby," had a dark brown complexion and salt and pepper braided hair, was between 50 and 55 years of age, was 5' 6" to 5' 8" in height, and weighed 145 to 165 pounds. After the controlled buy, Officer Byrd conducted surveillance of appellant's residence and, within 48 hours of the controlled buy, obtained a search warrant for the premises. On March 19, 2004, Officer Byrd, along with his narcotics squad, executed the warrant at appellant's residence. As the police arrived at the scene, appellant, who matched the description of "Bobby" given by the informant, and five other people were sitting in a white Dodge Ram pickup truck in front of the residence. The police parked their raid van behind the vehicle. As they approached the pickup truck, they witnessed the driver, Ricky Densen, "toss an item out of the vehicle with his left hand." The item was a plastic baggie containing "drugs." The officers ordered the occupants out of the truck and patted them down, but found no weapons or contraband. The officers then proceeded to announce themselves and entered the house to execute the search warrant. While those officers were securing the residence, Officer Byrd informed appellant of his legal rights and interviewed him. When Officer Byrd asked appellant whether he had any narcotics in the house, appellant responded that "he did sell narcotics, but he was all sold out and there should not be any in the house." While Officer Byrd was interviewing appellant, an officer with a trained dog entered the residence and discovered a pill bottle bearing appellant's name located in an armoire in appellant's bedroom. The dog also found a second pill bottle that did not bear appellant's name in a cup on a shelf built into the headboard of the bed in his bedroom. Both pill bottles contained substances that field tested positive for cocaine. The substances were later taken to the HPD crime lab and tested by forensic scientist K. Carpenter, who testified that the pill bottle with appellant's name on it contained 0.4 grams of 93% pure crack cocaine and the pill bottle not bearing appellant's name contained 2.8 grams of 85% pure crack cocaine, totaling 3.2 grams. Both Officer Byrd and Sergeant R. Zaled testified that this amount of cocaine is consistent with distribution rather than personal use. Sergeant Zaled also testified that the manner in which the cocaine was packaged was consistent with distribution. In addition to finding cocaine in appellant's bedroom, the officer with the dog also found marijuana in a jacket pocket in the hall closet. The officers also found two pieces of mail that were addressed to appellant at that address. Standard of Review
When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Legal Sufficiency We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Westbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Although our analysis considers all the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. Factual Sufficiency We review the factual sufficiency of the evidence by viewing all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). Regarding the second basis for a finding of factual insufficiency, "an appellate court must . . . be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before [the court] is justified in exercising its appellate fact jurisdiction to order a new trial." Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006) (emphasis omitted). Possession Legal Sufficiency
In his first and third points of error, appellant argues that the evidence is legally insufficient to show that he exercised actual care, control, or management over the cocaine. Appellant was charged with the knowing possession of more than one gram but less that four grams of cocaine with intent to deliver. See Tex. Health Safety Code Ann. § 481.112 (Vernon Supp. 2003). To prove unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the substance, (2) was conscious of his connection with it, and (3) knew what it was. See id. § 481.002(38) (Vernon 2003), § 481.112; Swarb v. State, 125 S.W.3d 672, 684 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). When contraband is not found on the accused's person or when the accused is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State established a link between the accused and the contraband — i.e., independent facts and circumstances that 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); Robinson v. State, 174 S.W.3d 320, 324-25 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd); Swarb, 125 S.W.3d at 684. The link may be established through either direct or circumstantial evidence. See Brown v. State, 911 S.W.2d 744, 746-47 (Tex.Crim.App. 1995). The link terminology does not constitute a unique legal rule, but is only a shorthand way of expressing what must be proven to establish that narcotics were possessed knowingly or intentionally. Id. at 747. Texas courts have identified several factors that may help to establish a link between the accused and the contraband, including whether (1) the defendant was present when the narcotics were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the narcotics and had access to them; (4) the defendant was under the influence of narcotics when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) the odor of the narcotic found was present; (10) the defendant owned or had the right to possess the place where the narcotics were found; (11) the narcotics were found in an enclosed place; (12) the amount of narcotics found was significant; (13) the defendant possessed a weapon; and (14) the defendant possessed a large amount of cash. Swarb, 125 S.W.3d at 684. Although several factors relevant to establishing the necessary link have been identified, the number of factors supported by the evidence is not as important as the "logical force" they collectively create to prove that a crime has been committed. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (quoting Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd)). Evidence that links the accused to the narcotics must establish a connection that was more than fortuitous. Brown, 911 S.W.2d at 747. When police arrived at the residence to execute the search warrant, appellant was in a truck parked in front of the house. Police searched the residence and found two plastic pill bottles in appellant's bedroom. One contained 0.4 grams of cocaine and bore appellant's name, and a second contained 2.8 grams of cocaine, for a total of 3.2 grams. Both Officer Byrd and Sergeant Zaled testified that this amount of cocaine is consistent with distribution rather than personal use. Sergeant Zaled also testified that the manner in which the cocaine was packaged was consistent with distribution. Police also found two pieces of mail addressed to appellant at that address. Furthermore, appellant — who matched the informant's description of the man who had sold cocaine from that address only days before — told Officer Byrd that he had previously sold drugs, but that he was currently out. Despite the existence of these factors, appellant argues that there were not enough factors linking him to the cocaine. Specifically, appellant points to various factors courts have used in other cases to show an affirmative link between the accused and narcotics that are missing in the present case. As we have already stated, however, the number of existing factors supported by the evidence is not as important as the "logical force" they collectively create to prove that a crime has been committed. See Roberson, 80 S.W.3d at 735-36 ("A factor that contributes to sufficiency in one situation may be of little value under a different set of facts. We will examine all the factors possibly linking appellant to the cocaine. . . .") (citations omitted). Viewing all the foregoing evidence in the light most favorable to the verdict, we conclude that a jury could have found beyond a reasonable doubt that appellant exercised care, custody, control, or management of the cocaine. See Wesbrook, 29 S.W.3d at 111; King, 29 S.W.3d at 562. We overrule appellant's first and third points of error. Factual Sufficiency
In his second and fourth points of error, appellant argues that the evidence is factually insufficient to show that he exercised actual care, control, or management over the cocaine. More specifically, appellant contends the proof of his guilt is so weak as to undermine confidence in the jury's verdict because the State failed to establish several of the linking factors. As we have already stated, the number of existing factors supported by the evidence is not as important as the "logical force" they collectively create to prove that a crime has been committed. See Roberson, 80 S.W.3d at 735. Here, police found two plastic pill bottles, one of which bore appellant's name, containing a total of 3.2 grams of cocaine in appellant's bedroom. Two officers testified that this amount of cocaine was consistent with distribution, and one testified that the packaging was also consistent with distribution. There was no countervailing evidence. In addition, appellant matched the description of the man given by the informant who had sold cocaine from that address only days before, and he admitted to Officer Byrd that he had sold cocaine from that location in the past. Thus, despite the lack of several possible factors, we cannot say that this evidence is so weak as to undermine confidence in the jury's verdict. Appellant further argues that while no narcotics were found on his person, the driver of the vehicle, Densen, who had access to his home, was caught throwing narcotics out of the window of the pickup truck in which they were both seated. Appellant was not indicted for possession of these narcotics, however, and the fact that Densen had some unidentified drugs in his possession in close proximity to appellant is no evidence that appellant did not possess crack cocaine with the intent to deliver it. Thus, after neutrally examining all the evidence, we hold that the proof of guilt was not so weak that the verdict is clearly wrong and manifestly unjust; nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 10-11. We overrule appellant second and fourth points of error. Intent to Deliver
Legal Sufficiency In his fifth point of error, appellant argues that the evidence is legally insufficient to show that he possessed the cocaine with intent to deliver. To prove the offense of possession of a controlled substance with intent to deliver, the State must prove, in addition to possession, that the accused intended to "transfer, actually or constructively, to another a controlled substance. . . ." Tex. Health Safety Code Ann. §§ 481.002(8), 481.112(a). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence regarding an accused's possession of the contraband. Mack v. State, 859 S.W.2d 526, 528 (Tex.App.-Houston [1st Dist.] 1993, no pet.). An oral expression of intent is not required. Robinson, 174 S.W.3d at 331. Additional factors that courts have considered in determining whether the accused had the intent to deliver include (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused's possession; (3) the manner of packaging; (4) the presence, or lack thereof, of narcotic paraphernalia for either use or sale; (5) the accused's possession of large amounts of cash; and (6) the accused's status as a narcotic user. Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Expert testimony by experienced law enforcement officers may also be used to establish an accused's intent to deliver. See Mack, 859 S.W.3d at 529 (relying, in part, on police officer's testimony "that circumstances logically indicated appellant's intent to deal, rather than use, the crack cocaine he possessed"). Police recovered two plastic pill bottles, one of which bore appellant's name, containing a total of 3.2 grams of cocaine from appellant's bedroom. Both Officer Byrd and Sergeant Zaled testified that this amount of cocaine is consistent with distribution rather than personal use. Sergeant Zaled also testified that the manner in which the cocaine was packaged was consistent with distribution. Appellant matched the description of the man who had sold cocaine from that address only days before, and he admitted to Officer Byrd that he had sold cocaine in the past. Viewing all the foregoing evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant intended to deliver the cocaine. See Wesbrook, 29 S.W.3d at 111; King, 29 S.W.3d at 562; see, e.g., Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.) (holding evidence sufficient for possession with intent to deliver where police recovered 1.3 grams of crack cocaine, an amount consistent with approximately thirteen individual uses, and officer testified that "because of the cost and nature of the narcotic, it would be `very uncommon' for someone to purchase thirteen individual uses of crack cocaine and not have intent to sell at least a portion of those uses"); Bryant v. State, 997 S.W.2d 673, 675 (Tex.App.-Texarkana 1999, no pet.) (holding evidence sufficient to prove intent to deliver where police recovered 8.42 grams of cocaine and officer testified that, based on his experience, the cocaine was intended for sale and distribution); Mack, 859 S.W.2d at 528 (holding that 8.9 grams of crack cocaine in 29 rocks in a known drug-dealing area without paraphernalia for smoking or otherwise using cocaine was sufficient to show intent to deliver). We overrule appellant's fifth point of error. Factual Sufficiency
In his sixth point of error, appellant argues that the evidence is factually insufficient to show that he possessed cocaine with the intent to deliver. Again, appellant points out the lack of existing factors that courts normally consider in determining whether the accused intended to deliver contraband. Specifically, appellant argues that: (1) he was not attempting to transport narcotics at the time of arrest, (2) he did not have narcotics or narcotic paraphernalia on his person at the time of seizure, (3) he did not possess large amounts of cash at the time of arrest, and (4) he was not under the influence of a controlled substance at the time of arrest. The record, however, indicates that the amount and packaging of the cocaine seized were consistent with delivery and that a man matching appellant's description had sold cocaine from that location only days before, and appellant admitted that he had sold narcotics from that location in the past. Thus, after neutrally examining all the evidence, we find that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 10-11. We overrule appellant's sixth point of error. Conclusion
We affirm the judgment of the trial court.