Opinion issued January 10, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00951-CR
__________
DERICK DEON HOWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1064973
MEMORANDUM OPINION
A jury convicted appellant, Derick Deon Howard, of possession with intent to deliver a controlled substance, namely, cocaine, weighing more than four grams and less than two hundred grams[1] and assessed punishment at ten years’ confinement and
class=Section2>a $1,500 fine. In four points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. We affirm.
BACKGROUND
On the evening of April 12, 2006, Sergeant K. Richards of the West Side Divisional Tactical Unit was conducting surveillance from his unmarked pickup truck, which was parked in the parking lot of an apartment complex. The surrounding area had been considered a high crime area, or “hot spot,” by the Houston Police Department. Sergeant Richards saw a four-door maroon Buick enter the parking lot and back into a parking space about four spaces away from his location. Richards saw appellant and a two-year-old toddler in the parked car. Approximately two minutes after the Buick was parked, a man walked through an apartment gate and got into the Buick from the rear, passenger-side door. Richards saw appellant turning and reaching toward the backseat, conducting some type of transaction. Moments later, the man in the rear of the car got out, scanned the surroundings, and sprinted back into the apartment complex.
Then, appellant drove the Buick out of the apartment complex parking lot, followed by unmarked police cars. A traffic stop was initiated by a uniformed officer, Sergeant Cashdollar, for violations of a cracked rear tail light and failing to properly restrain a child. After Cashdollar learned appellant was driving without a valid Texas
driver’s license, also a violation of Texas law, he arrested appellant. Id. Appellant was searched incident to his arrest, and the police officer recovered $1,255 in cash. The Buick appellant was driving was also searched, and the officers recovered a plastic baggie containing 4.2 grams of crack cocaine from a hidden dashboard compartment, which was located a few inches to the left of the steering column.
SUFFICIENCY OF THE EVIDENCE
In his first and second points of error, appellant argues that the evidence was legally insufficient to support his conviction for possession of a controlled substance with the intent to deliver. Appellant also challenges the factual sufficiency of the evidence in his third and fourth points of error for review. When both the legal and factual sufficiency of the evidence are challenged, we must first review the evidence under the legal sufficiency standard. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc opinion); see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App.1996).
I. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); see also Roberson v. State, 80 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King, 29 S.W.3d at 562; Roberson, 80 S.W.3d at 734.
To establish unlawful possession with the intent to deliver a controlled substance, the State must show that a defendant (1) exercised actual care, custody, control, or management over the controlled substance; (2) knew that he possessed a controlled substance; and (3) had the intent to deliver the controlled substance. Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003), § 481.002(38) (Vernon Supp. 2007), § 481.112(a) (Vernon 2003); see also Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). One need not have exclusive possession of the drug. Harvey v. State, 487 S.W.2d 75,77 (Tex. Crim. App. 1972).
A. Possession of a Controlled Substance
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 establishes a link[2] 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.[3] Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Robinson v. State, 174 S.W.3d 320, 325 (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 v. State, 125 S.W.3d 672, 684 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). 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, 80 S.W.3d at 735 (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.
In this case, the evidence shows that appellant had multiple links to the cocaine. Appellant was the sole adult occupant of the vehicle in which the cocaine was found. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14 th Dist.] 2001, pet. ref’d) (stating that the appellant’s sole occupancy of vehicle in which cocaine was found affirmatively linked him to cocaine). Appellant also claimed to own the vehicle. Gilbert v. State 874 S.W.2d 290. Appellant had convenient accessability next to the steering column where the drugs were kept. See Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (stating that the term “conveniently accessible” means that contraband is within close vicinity of accused and easily accessible while in vehicle so as to suggest accused had knowledge of contraband and exercised control over it). Also, the police discovered the cocaine on the same side of the car as where the accused was sitting. Gilbert, 874 S.W.2d at 298. An experienced police officer witnessed appellant engaged in an activity believed to be a drug deal which would indicate appellant’s consciousness of the drugs.
Viewing the evidence in the light most favorable to the verdict, we hold that there were sufficient links between appellant and the contraband to conclude that appellant knowingly possessed the cocaine.
B. Intent to Deliver
To prove the offense of possession of a controlled substance with the 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) (Vernon 2003 & Supp. 2007), § 481.112(a) (Vernon 2003). 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.). Additional factors that this Court has 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 drug paraphernalia for either use or sale; (5) the accused’s possession of large amounts of cash; and (6) the accused’s status as a drug 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.2d at 529. An oral expression of intent is not required; 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 was arrested in a “hot spot,” which was known for robberies and narcotics transactions. The police had seen appellant participate in what appeared to be a drug transaction. Officer Novak testified that the amount of cocaine possessed by appellant—4.2 grams—was more than a usable amount of narcotics that a person would possess for recreational use. Appellant was in possession of a large sum of cash, $1,225, when arrested. Officer Novak testified that he also found the manner in which appellant’s cash was folded to be indicative of someone involved in narcotics transactions. Of the $1,225 in cash, $500 had been separated, marked “$500,” and inserted inside the larger amount of cash. Officer Novak testified that this type of currency separation is fairly common in narcotics transactions so that one could easily identify smaller amounts of cash when carrying a larger amount. Finally, no drug paraphernalia for the use of cocaine was found in the vehicle or on appellant’s person. See Mack, 859 S.W.2d at 529 (finding that absence of paraphernalia for smoking or using cocaine supports inference that accused intended to deliver, rather than consume, contraband). Viewing the evidence in a light most favorable to the verdict, the evidence is sufficient to show possession with intent to deliver cocaine.
After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found, beyond a reasonable doubt, that appellant was guilty of possession of a controlled substance, namely cocaine, with the intent to deliver.
We overrule appellant’s first and second points of error.
II. Factual Sufficiency
In his third and fourth points of error, appellant contends the evidence was factually insufficient to support his conviction for possession of a controlled substance with the intent to deliver.
In a factual-sufficiency review, we view all the evidence, both for and against the finding, in a neutral light and set aside the verdict only if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, i.e., the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We will reverse a jury’s verdict only if the record clearly shows that a different result is required to prevent a manifest injustice. See id. at 416–17; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury is free to accept or to reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); see Cleveland v. State, 177 S.W.3d 374, 380 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
A. Possession of a Controlled Substance
In support of his third point of error, appellant argues that the contraband was not in plain view; there was no odor of contraband in the vehicle; there was no contraband or paraphernalia on appellant’s person; appellant was not under the influence of narcotics; appellant did not attempt to flee, indicate a consciousness of guilt, or make any furtive gestures; the amount of contraband was not an inordinate amount; appellant made no incriminating statements connecting himself to the contraband; appellant had no special connection to the contraband; and there were no fingerprints or DNA of appellant found on the contraband.
Although these circumstances support appellant’s position, other facts point to his guilt. While conducting surveillance in a hot spot, Sergeant Richards saw what he described as a narcotics transaction take place inside the Buick. After Officer Chaffin arrived in the parking lot, also in an unmarked vehicle, both Richards and Chaffin saw a man get out of appellant’s car and sprint back inside the apartment complex. The officers described this behavior as a common conclusion to a drug transaction.
Although appellant was not the registered owner of the car, he was in sole possession of the car at the time of the surveillance and the traffic stop. The car was in his aunt’s name, and appellant stated that he was the owner of the Buick when interviewed by the Harris County Pre-Trial Services Department. Appellant was the only adult inside of the vehicle at the time of his arrest. The contraband was hidden in a compartment underneath the dashboard, which was easily accessible to the driver. The gap in the dashboard, under which the cocaine was hidden, was clearly visible to the driver. Moreover, appellant had $1,255.00 dollars in his pocket, with five hundred dollars folded and marked separately.
Viewing the evidence neutrally, we conclude that the evidence is not so obviously weak such that the verdict is clearly wrong and manifestly unjust, nor was the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence is factually sufficient to establish that appellant knowingly possessed the cocaine.
B. Intent to Deliver
To support appellant’s fourth point of error, he specifically relies on the amount of cocaine recovered (4.2 grams), the manner of packaging, the lack of items used in drug sales or transactions, the area and location in which appellant was arrested, the lack of weapons in the vehicle, the lack of evidence as to appellant’s drug use, and the lack of evasive maneuvers exhibited by appellant upon detention and arrest.
Other evidence, however, points to appellant’s guilt for intent to deliver cocaine. Sergeant Richards testified that appellant’s observed activities were very consistent with those associated with a narcotics transaction. Officer Chaffin testified that the amount of narcotics indicated that it was more than a usable, recreational amount. Appellant was carrying a large amount of cash when arrested. Finally, Sergeant Richards testified that the lack of drug paraphernalia found in the vehicle is consistent for narcotics dealers, not users.
After neutrally examining all the evidence, we conclude that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination, nor was the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met, that appellant intended to deliver the cocaine.
We overrule appellant’s third and fourth points of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
1 See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003).
2 Although the necessary connection between the accused and the contraband was once referred to as an “affirmative link,” we now simply refer to it as a “link.” See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006).
3 This rule serves to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs; it restates the common-sense notion that even if a person jointly possesses property, such as a house or a car, he may not necessarily jointly possess contraband found in that house or car. Robinson v. State, 174 S.W.3d 320, 325 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005)).