Lamont Renard Stewart v. State

IN THE
TENTH COURT OF APPEALS

No. 10-14-00183-CR

LAMONT RENARD STEWART,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 54th District Court
McLennan County, Texas
Trial Court No. 2013-179-C2

MEMORANDUM OPINION

In four issues, appellant, Lamont Renard Stewart, challenges his conviction for

unlawful possession of a controlled substance with intent to deliver. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(a) (West 2010). Specifically, appellant argues that: (1) the

trial court erred in admitting evidence of extraneous offenses involving him selling

controlled substances to confidential informants; (2) the prejudicial effect of the

extraneous drug-offense evidence outweighed its probative value; (3) the disclosure of
the identities of the confidential informants was required; and (4) the evidence

supporting his conviction is insufficient. We affirm.

I. BACKGROUND

After receiving information that appellant was selling ecstasy, Detective David

Starr of the Waco Police Department’s narcotics unit began a five-month investigation

into appellant’s actions. During this investigation, Detective Starr conducted twelve

“controlled buys,” which involved appellant selling ecstasy pills to confidential

informants. The “controlled buys” occurred at several locations, including the apartment

of appellant’s girlfriend, Jeanetta Mozee. And on at least four of the “controlled buys,”

Mozee accompanied appellant to the location of the drug deal.

Armed with the information obtained from the “controlled buys,” Detective Starr

was able to obtain a warrant to search appellant’s house and Mozee’s apartment. On the

day of the search, investigators observed appellant leave his house in a Suburban to drive

to Mozee’s apartment. Once appellant had entered Mozee’s apartment and shut the door,

a SWAT team entered Mozee’s apartment.

After the SWAT team secured the premises, Detective Starr entered the apartment,

and on the kitchen counter, he observed appellant’s keys and a plastic bag that appellant

had carried into the apartment. These items were next to a baggie of twenty-one pills

that were in plain view on the kitchen counter. Witnesses testified that appellant was in

close proximity to the baggie of pills and that appellant had stated the following when

he was detained by the SWAT team: “I don’t know what the big deal is, it’s just 10 to 15

Ecstasy pills that I sell for, like, $3.00.” The SWAT team also found $1,211 in cash on

Stewart v. State Page 2
appellant’s person and a key to Mozee’s apartment on a keychain in appellant’s pocket.

A subsequent test of the pills contained in the baggie revealed that the baggie contained

4.67 grams of 1-(3-trifluoromethylphenyl piperazine) or TFMPP, which, as Detective Starr

testified, is similar to ecstasy.1 Later, investigators searched the center console armrest of

one of appellant’s vehicles and found digital scales that are commonly used in the drug

trade. Thereafter, appellant was charged with unlawful possession of a controlled

substance with intent to deliver. See id.

This case proceeded to trial, and at the conclusion of the evidence, the jury found

appellant guilty of the charged offense. Appellant pleaded “true” to two enhancement

paragraphs contained in the indictment referencing appellant’s prior felony convictions

for possession of a controlled substance with intent to deliver and aggravated assault. At

the conclusion of the punishment phase, the jury sentenced appellant to sixty years’

imprisonment in the Institutional Division of the Texas Department of Criminal Justice

with no fine. The trial court certified appellant’s right of appeal, and this appeal followed.

1 When asked about TFMPP, Detective Starr noted:

It’s a—it’s a drug that mimics Ecstasy, MDMA, methylenedioymethamphetamine. It’s not
the same drug, but it mimics it. It has some of the same side effects as Ecstasy. It creates
a euphoria type of experience for the drug users. Sometimes it will last—it takes 20 to 30
minutes to take affect [sic]. Sometimes it will last three to four hours.

Detective Starr later admitted that the terms Ecstasy and TFMPP are often used interchangeably and that
the drugs look alike. He also affirmed that because Ecstasy and TFMPP are so similar, “dealers often think
they have Ecstasy so they will call something Ecstasy when in fact it is TFMPP.”

Stewart v. State Page 3
 II. EXTRANEOUS DRUG-OFFENSE EVIDENCE

In his first two issues on appeal, appellant complains about the admission of

extraneous drug-offense evidence pertaining to the “controlled buys.” More specifically,

appellant asserts that the trial court erred in admitting evidence of the “controlled buys”

because the evidence portrayed him as a drug dealer, and because neither intent nor

knowledge were contested issues. Additionally, appellant contends that the probative

value of admitting evidence of the “controlled buys” was outweighed by its prejudicial

effect and allowed the jury to convict appellant for being a drug dealer in general, rather

than for the charged offense.

A. Standard of Review

We review the trial court’s admission of extraneous-offense evidence for an abuse

of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s

ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that: (1) an extraneous transaction is relevant to a material, non-

propensity issue; and (2) the probative value of that evidence is not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. De La Paz, 279 S.W.3d at 344. “Furthermore, if the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, it will not be disturbed even if the

trial judge gave the wrong reason for his right ruling.” Id.

Stewart v. State Page 4
B. Texas Rule of Evidence 404(b)

Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the defendant in order to show

he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the common-

law principle that a defendant should be tried only for the offense for which he is charged

and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex.

Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)

(explaining that a defendant is generally to be tried only for the offense charged, not for

any other crimes).

Extraneous-offense evidence, however, may be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)

is not exhaustive. See Prible, 175 S.W.3d at 731. For example, extraneous-offense evidence

may be admissible to demonstrate conduct by a defendant that indicates a consciousness

of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also

Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980). An extraneous offense may

also be admissible to show identity when identity is at issue in the case, or when the

defense cross examines witnesses or alleges that someone else committed the crime. See

Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996). “Whether extraneous[-]offense evidence has relevance apart

from character conformity, as required by Rule 404(b), is a question for the trial court.”

Stewart v. State Page 5
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b)

ruling admitting evidence is generally within the zone of reasonable disagreement “if

there is evidence supporting that an extraneous transaction is relevant to a material, non-

propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

Here, the State introduced evidence of appellant’s prior sales of ecstasy to show

his intent, knowledge, and possession in this case. Appellant contends that the evidence

should have been excluded because neither intent nor knowledge were contested, and

because the evidence portrayed appellant as a drug dealer. Appellant’s appellate

arguments are belied by the testimony adduced at trial.

Specifically, as acknowledged in his brief, appellant’s defense at trial was that the

pills found on Mozee’s kitchen counter were not his and instead belonged to Mozee.

Furthermore, through questioning of witnesses, appellant attempted to demonstrate that

the pills were for personal use and were not intended to be distributed. This shows that

appellant’s intent, knowledge, and possession were indeed at issue in this case. And in

any event, such a contention is without merit because the “State has the burden of

proving the essential elements of the offense beyond a reasonable doubt regardless of

whether the defendant chooses to contest any of those elements.” Payton v. State, 830

S.W.2d 722, 730 (Tex. App.—Houston [14th Dist.] 1992, no pet.).

“Knowledge (or criminal intent) is an essential element of the crime of possession

of a narcotic drug. Evidence that the accused has, in the past, sold the narcotic of which

he is now alleged to have possession is of probative value in establishing knowledge.”

Arnott v. State, 498 S.W.2d 166, 176 (Tex. Crim. App. 1973) (internal citations omitted); see

Stewart v. State Page 6
Mason v. State, 99 S.W.3d 652, 656 (Tex. App.—Eastland 2003, pet. ref’d) (finding no abuse

of discretion in admitting extraneous drug-offense evidence to show that the defendant

knowingly possessed cocaine); Payton, 830 S.W.2d at 730 (“Clearly, evidence that

appellant sold cocaine approximately two days before his arrest is relevant to whether he

possessed cocaine with intent to deliver.”); see also Banal v. State, No. 08-11-00032-CR, 2012

Tex. App. LEXIS 10661, at **10-12 (Tex. App.—El Paso Dec. 21, 2012, no pet.) (mem. op.,

not designated for publication) (concluding that the trial court did not abuse its discretion

in admitting extraneous drug-offense evidence of an undercover buy made by the

defendant the day before a search warrant was executed).

Detective Starr testified that he observed twelve “controlled buys” between

appellant and confidential informants and that the pills found on the kitchen counter in

Mozee’s apartment are similar to and are often confused with appellant’s drug of

choice—ecstasy. We conclude that this extraneous drug-offense evidence was relevant

to show that appellant had knowledge of the pills found on the kitchen counter of

Mozee’s apartment and that he possessed them with intent to deliver.2 See TEX. R. EVID.

2 Appellant also argues that the complained-of extraneous drug-offense evidence constitutes
improper propensity evidence. We are not persuaded by this argument, especially in light of Arnott, Mason,
Payton, and Banal—all of which allow for the admission of extraneous drug-offense evidence to show intent,
knowledge, and possession. See Arnott v. State, 498 S.W.2d 166, 176-77 (Tex. Crim. App. 1973); Mason v.
State, 99 S.W.3d 652, 656 (Tex. App.—Eastland, pet ref’d); Payton v. State, 830 S.W.2d 722, 730 (Tex. App.—
Houston [14th Dist.] 1992, no pet.); see also Banal v. State, No. 08-11-00032-CR, 2012 Tex. App. LEXIS 10661,
at **10-12 (Tex. App.—El Paso Dec. 21, 2012, no pet.) (mem. op., not designated for publication). And as
we describe later, we are not convinced that the complained-of extraneous drug-offense evidence confused
or distracted the jury or suggested a decision on an improper basis. See TEX. R. EVID. 403; see also Newton v.
State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d).

Stewart v. State Page 7
404(b); Arnott, 498 S.W.2d at 176-77; Mason, 99 S.W.3d at 656; Payton, 830 S.W.2d at 730;

see also Banal, 2012 Tex. App. LEXIS 10661, at **11-12.

C. Texas Rule of Evidence 403

Evidence, though relevant, can nonetheless be excluded when its probative value

is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Once

a trial court determines that extraneous-offense evidence is admissible under Rule 404(b),

the trial court must, on proper objection by the opponent of the evidence, weigh the

probative value of the evidence against its potential for unfair prejudice. Montgomery v.

State, 810 S.W.2d 377, 389 (Tex. Crim. App. 1990); see TEX. R. EVID. 403. Rule 403 favors

admissibility of relevant evidence, and the presumption is that generally, relevant

evidence will be more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at

389. Unfair prejudice does not mean the evidence injures the opponent’s case—“the

central point of offering evidence.” Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App.

1999). “Rather[,] it refers to ‘an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.’” Id. (quoting Cohn v. State, 849

S.W.2d 817, 820 (Tex. Crim. App. 1993)).

Although not limited to the following enumerated factors, courts should balance

the following factors under a Rule 403 analysis: (1) the probative value of the evidence;

(2) the potential of the evidence to impress the jury in some irrational, yet indelible, way;

(3) the time needed to develop the evidence; and (4) the proponent’s need for the

evidence. Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted the

Stewart v. State Page 8
proper balancing test if it overrules a 403 objection, regardless of whether it conducted

the test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).

As stated earlier, appellant’s defense was that the pills were Mozee’s and that,

based on the quantity, the pills were for personal use, not for distribution. As such,

appellant’s intent, knowledge, and possession were clearly at issue in this case. The State

had a need for the complained-of extraneous drug-offense evidence because it was

probative on the issue of appellant’s intent, knowledge, and possession of the pills.

Specifically, the complained-of evidence was used to prove the State’s possession-with-

intent-to-deliver case and refute appellant’s defensive theory. Furthermore, although

some time was spent developing the complained-of drug-offense evidence, the testimony

was limited to Detective Starr and a few questions of Mozee. Nevertheless, based on our

review of the record, we do not believe that the complained-of evidence caused the jury

to be confused or distracted or caused the jury to give the evidence undue weight,

especially because, as we conclude later, the evidence affirmatively links appellant to the

pills.

Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the complained-of evidence

and its probative value. See id.; see also Conner, 67 S.W.3d at 202. Thus, we cannot

conclude that the trial court abused its discretion in admitting the complained-of

Stewart v. State Page 9
evidence over appellant’s Rule 403 and 404(b) objections. See TEX. R. EVID. 403, 404(b); see

also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule appellant’s first

two issues.

III. IDENTITY OF THE CONFIDENTIAL INFORMANTS

In his third issue, appellant asserts that the disclosure of the identity of the

confidential informants was necessary for a fair determination of guilt because, though

not directly involved in the charged offense, the informants were an integral part of the

State’s case.

A. Standard of Review

We review a trial court’s ruling on a defendant’s motion to disclose the identity of

a confidential informant for an abuse of discretion. See Taylor v. State, 604 S.W.2d 175, 179

(Tex. Crim. App. 1980); see also Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.—Houston

[14th Dist.] 2013, pet. ref’d) (citing Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d)). Under this standard, a trial court’s decision will not be

disturbed on appeal unless it falls outside the “zone of reasonable disagreement.”

Haggerty, 429 S.W.3d at 8. We do not substitute out judgment for that of the trial court,

but instead, determine whether the trial court’s decision was arbitrary or unreasonable.

Portillo v. State, 117 S.W.3d 924, 928 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

B. Discussion

The State has the “privilege to refuse to disclose the identity of a person who has

furnished information relating to or assisting in an investigation of a possible violation of

a law to a law enforcement officer . . . conducting an investigation.” TEX. R. EVID. 508(a).

Stewart v. State Page 10
There are three exceptions to this privilege, one of which appellant claims is applicable

here. See id. at R. 508(c).

The “Testimony of Merits” exception requires disclosure of an informant’s identity

if it appears from the evidence in the case or from other showing by a party that the

informant may be able to give testimony necessary to a fair determination of a material

issue on guilt or innocence in a criminal case. TEX. R. EVID. 508(c)(2). The burden is on

the defendant to show that the informant’s testimony may be necessary to a fair

determination of guilt or innocence; mere conjecture or supposition about possible

relevancy is insufficient. See Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991);

see also Rust v. State, No. 12-13-00157-CR, 2014 Tex. App. LEXIS 8532, at *4 (Tex. App.—

Tyler Aug. 6, 2014, no pet.) (mem. op., not designated for publication). As stated in Bodin,

the informant’s testimony must “significantly aid the defendant.” 807 S.W.2d at 318.

However, courts have recognized that because the defendant actually may not know the

nature of the informant’s testimony, he is required to make only a “plausible showing of

how the [informant’s] information may be important.” Id.; see, e.g., Rust, 2014 Tex. App.

LEXIS 8532, at *4.

The defendant has the initial burden of demonstrating that the informant’s

identity must be disclosed. Blake v. State, 125 S.W.3d 717, 728 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). If the defendant meets his burden, the trial court must hold an in-

camera hearing to provide the State with an opportunity to present facts that rebut the

defendant’s preliminary showing. See Bodin, 807 S.W.2d at 319.

Stewart v. State Page 11
 In response to appellant’s request for the State to disclose the identities of the

informants used in the “controlled buys,” the trial court asked how the disclosure of the

informants’ identities was necessary to a fair determination of guilt or innocence, and

appellant argued the following:

Well, my theory is it is highly prejudicial and it’s going to inflame the jury.
It’s going to—it’s an attempt by the State to bolster their case by extraneous
evidence. And—and, you know, they’re trying to show, well, Mr. Stewart
is a drug dealer, therefore, you know, he was there and these pills were
there, so he had to know they were there. I don’t think that it—I agree with
you. I don’t think that it does have any direct bearing on whether or not he
possessed these pills on December the 7th. But the prejudicial effect and
the fact that it just bolsters the case against my client, that’s what I believe
is—is—is the detriment here.

Later, the trial court asked appellant “if you have any other ideas on how it would be

plausible or what would make a plausible showing, let me know now.” Appellant

responded,

Judge, I—without more information, I have no idea what I could be—what
could be developed as far as a plausible showing of a—of any evidence that
might be beneficial to the defense. Because I—I don’t—I mean—you know,
this is a circular argument. I realize that. But without knowing who they
are, I can’t—I can’t—I can’t tell you that I—that there may be a—you know,
some evidence that would be beneficial to the defendant to the defense in
this case. I don’t know how to put it any other way.

At this point, the trial court sustained the State’s objection to the disclosure of the

identities of the informants.

A review of the record reveals that appellant admits that the identities of the

informants do not have any bearing on whether appellant possessed the drugs on the

date in question. Compare Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991)

(“Whenever it is shown that an informant was an eyewitness to an alleged offense then

Stewart v. State Page 12
certainly that informant can in fact give testimony ‘necessary to a fair determination of

the issues of guilt, innocence.’ Thus, we hold that appellant was entitled to disclosure of

the informant’s identity and the trial court erred in failing to instruct the officer to disclose

such or to proceed with the procedures delineated in Rule 508(c)(2).”), with Long v. State,

137 S.W.3d 726, 732-33 (Tex. App.—Waco 2004, pet. ref’d) (concluding that an informant

who supplied information establishing probable cause for the issuance of a search

warrant was not a material witness in a controlled-substance case that arose from the

execution of the warrant because the informant was not present during the search, and

because the evidence supporting the conviction was supplied by the officer who

conducted the search). Moreover, appellant only proffers speculation and conjecture as

to the potential relevancy of the identities of the informants. See Bodin, 807 S.W.2d at 318;

see also Rust, 2014 Tex. App. LEXIS 8532, at *4. In other words, appellant was not able to

articulate any plausible showing to the trial court when specifically asked how the

disclosure of the informants’ identities would be necessary to a fair determination of guilt

or innocence. See TEX. R. EVID. 508(c)(2); Bodin, 807 S.W.2d at 318; see also Rust, 2014 Tex.

App. LEXIS 8532, at *4. Accordingly, we cannot say that appellant has met his burden of

demonstrating that the informants’ identities must be disclosed. See Blake, 125 S.W.3d at

728. We overrule appellant’s third issue.

IV. EVIDENTIARY SUFFICIENCY

In his fourth issue, appellant complains that the evidence supporting his

conviction is insufficient. More specifically, appellant argues that the evidence is

Stewart v. State Page 13
insufficient to prove possession because the controlled substance was found in Mozee’s

apartment, and because Mozee claimed possession.

A. Standard of Review

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally: “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

Stewart v. State Page 14
is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

The elements for possession of a controlled substance with intent to deliver are

that the defendant: (1) possessed a controlled substance in the amount charged; (2)

intended to deliver the controlled substance to another; and (3) knew that the substance

in his possession was a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. §§

481.002(38) (West Supp. 2014), 481.112(a); see also Erskine v. State, 191 S.W.3d 374, 379 (Tex.

App.—Waco 2006, no pet.) (citing Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—

Houston [1st Dist.] 2004, no pet.)). When the defendant is not in exclusive possession of

the place where the controlled substance is found, the State must also show that the

defendant is affirmatively linked to the controlled substance. Haggerty, 429 S.W.3d at 5.

B. Discussion

It is undisputed that this is an affirmative-links case. An affirmative link generates

a reasonable inference that the defendant knew of the contraband’s existence and

Stewart v. State Page 15
exercised control over it. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston

[14th Dist.] 2005, no pet.). Courts have identified the following factors that may help to

show a defendant’s affirmative links to a controlled substance: (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 was under the influence of a controlled substance when arrested; (5)

whether the defendant possessed other contraband or controlled substances when

arrested; (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 contraband; (10) whether other contraband or

drug paraphernalia were present; (11) whether the defendant owned or had the right to

possess the place whether the controlled substances was found; (12) where the location

of the controlled substance was enclosed; (13) whether the defendant was found with a

large amount of cash; and (14) whether the conduct of the defendant indicated a

consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).

No set formula necessitates a finding of an affirmative link sufficient to support an

inference of knowing possession. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d). Affirmative links are established by the totality of

the circumstances. See Wootton v. State, 132 S.W.3d 80, 87 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref’d). The number of factors present is not as important as the logical

force the factors create to prove the defendant knowingly possessed the controlled

Stewart v. State Page 16
substance. See Black v. State, 411 S.W.3d 25, 28-29 (Tex. App.—Houston [14th Dist.] 2013,

no pet.).

In the instant case, the evidence showed that the twenty-one pills were found in

plain view on Mozee’s kitchen counter and within ten feet from where appellant was

detained by the SWAT team. Investigators also testified that the keys to appellant’s

vehicle and a plastic bag that appellant had carried into the apartment were found on the

counter next to the pills. Additionally, two baggies of marihuana were found in plain

view in the kitchen and in close proximity to appellant. Moreover, when detained,

appellant made incriminating statements to investigators. Specifically, appellant stated:

“I don’t know what the big deal is, it’s just 10 to 15 Ecstasy pills that I sell for, like, $3.00.”

Investigators also found a large amount of cash on appellant’s person—$1,211—and a

key to Mozee’s apartment on a keychain contained in appellant’s pocket. Furthermore,

Detective Starr testified that he observed appellant use the key to gain access to Mozee’s

apartment on multiple occasions during the five-month investigation into appellant’s

drug dealing. Investigators also found that appellant had digital scales—commonly used

in the drug trade—in one of his vehicles and that appellant had communicated with

people via text message about drug deals.3 And finally, Detective Starr recounted the

twelve “controlled buys” that appellant had made with informants.

State’s Exhibit 10 showed the following exchange, as it appeared on his cell phone, that appellant
3

had with an unknown source:

Incoming: Yu got tabs bro . . .

Outgoing: Yeah, how many

Stewart v. State Page 17
 Based on the foregoing evidence, we cannot say that appellant’s connection to the

seized pills was merely fortuitous. See Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.

Crim. App. 2005) (noting that the State “must establish, to the requisite level of

confidence, that the accused’s connection with the drug was more than just fortuitous.

This is the whole of the so-called ‘affirmative links’ rule”). The foregoing evidence

demonstrates appellant’s involvement with drugs. See Evans, 202 S.W.3d at 162 (stating

that, among other things, mere presence at the location where drugs are found is

insufficient, by itself, to establish actual care, custody, or control of those drugs);

Poindexter, 153 S.W.3d at 405; see also Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.

1995) (noting that evidence which links the defendant to the controlled substance suffices

for proof that he possessed it knowingly). As such, we conclude that the evidence links

appellant to the seized pills. See Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 405;

Brown, 911 S.W.2d at 747; see also Black, 411 S.W.3d at 28-29.

Nevertheless, appellant emphasizes on appeal that he did not exercise care,

custody, or control over the pills because Mozee stated that the pills were hers. However,

a review of the testimony shows that Mozee initially told investigators that she did not

know anything about the pills and denied that they were hers. She later changed her

story to contradict her initial statement. In any event, we note that it is within the

province of the factfinder, the jury here, to judge the credibility of the witnesses. See

Incoming: Prolly three . . . gone have to meet yu in bout a hour.

Outgoing: K just call[.] I’m ready.

Stewart v. State Page 18
Chambers, 805 S.W.2d at 461. This means that the jury was entitled to believe all, some,

or none of the testimony presented by the parties. See id. And because it is within the

province of the jury, we are to defer to the jury’s resolution of conflicts in the evidence.

See Jackson, 443 U.S. at 329, 99 S. Ct. at 2792-93; see also Lancon v. State, 253 S.W.3d 699, 706

(Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet.

ref’d) (“An appellate court must give deference to a jury’s decision regarding what

weight to give contradictory testimonial evidence because the decision is most likely

based on an evaluation of credibility and demeanor, which the jury is in a better position

to judge.”). With its guilty verdict, the jury resolved any conflicts in Mozee’s statements

in favor of the prosecution.

Accordingly, viewing the evidence in the light most favorable to the jury’s verdict,

we cannot say that the evidence is legally insufficient to support appellant’s conviction.

See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); see also Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Lucio, 351 S.W.3d at 894. We overrule appellant’s fourth issue.

V. CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.

AL SCOGGINS
Justice

Stewart v. State Page 19
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 18, 2015
Do not publish
[CRPM]

Stewart v. State Page 20