In The
Court of Appeals
For The
First District of Texas
NO. 01-07-01039-CR
DANIEL WEBSTER JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1058127
MEMORANDUM OPINION
A jury found appellant, Daniel Webster Johnson, guilty of possession of four to twenty grams of cocaine with the intent to deliver, and the trial court assessed punishment at 35 years in prison. Tex. Health & Safety Code Ann. § 481.112 (Vernon 2001); Tex. Penal Code Ann. § 12.32 (Vernon 2003). In three points of error, appellant contends that (1) the evidence was legally insufficient; (2) the evidence was factually insufficient; and (3) the State improperly commented on appellant’s failure to testify. We affirm. Background
On February 16, 2006, Houston Police Department Narcotics officers obtained a search warrant for the house located at 2801 Tierwester in Houston, Texas. According to police testimony, the search warrant described a black man of light complexion between the ages of 25 and 28. The search warrant was issued for Nino Johnson, a relative of appellant. When police executed the warrant, however, appellant was the sole occupant of the house. Police discovered 65.1 grams of cocaine in the house.
Officer Baccus testified at trial that the house was located in an area known for narcotics deliveries. He described the house as a small, wood-frame dwelling with a burglar door and screen mesh covering the front door. Officer Baccus further testified that the burglar door was locked from the inside and that the main entry door was open prior to the raid. Officer Baccus stated that, when the narcotics raid team forced open the burglar door with a pry tool, they observed an individual inside the house look out of a room and then go back inside the room after seeing police at the front door. Officer Olivarez testified that the individual , later identified as appellant, appeared surprised upon seeing the police and ran back into the room.
In the bedroom where the officers saw appellant, they found a plastic container containing a white substance (later identified as cocaine), along with a loaded revolver and some ammunition, all in plain view. Officers also saw a scale, a plate holding two knives, and more of what was later identified as cocaine. Police also found powder cocaine in small baggies. Officer Baccus testified that the small baggies in which the powder cocaine was found were similar to those normally used for drug distribution. In the back room of the house were a shotgun and a .22-caliber rifle. Officers found another 27.2 grams of cocaine in the living room. Investigators did not attempt to take fingerprint impressions from any of the cocaine containers. Appellant was found in possession of $718 at the time of his arrest. The bills were listed as 17 twenty-, 17 ten-, 36 five-, and 28 one- dollar bills. Officer Baccus testified that it was common to see drug dealers with multiple bills in small amounts. Appellant told Officer Baccus at the scene that the money was not his.
At trial, appellant’s counsel raised the possibility that appellant was legally blind. When cross-examining Officer Olivarez, appellant’s counsel asked if he was “aware of the fact that [appellant] had any blindness.” Officer Baccus testified, however, that appellant did not seem to be impaired visually because appellant moved about normally and did not use a cane, walker, or dark glasses at the time of his arrest. In addition, Officer Baccus testified that appellant appeared to be “watching” the police officers during the search of the house and his subsequent arrest. Notwithstanding the officers’ testimony, appellants’ counsel contended in her closing argument that appellant was legally blind and that was the reason officers saw him return to the room in which officers later found the cocaine. In addition, appellant’s counsel raised the possibility that at least one other person could have been in the house at the time the officers arrived.
During his closing argument, the prosecutor addressed the possibility that another person may have been in the house but escaped arrest by making the following statement:
And don’t you know if there was a missing man, Mr. Johnson would have told his attorney who it was and they could have provided him in court today? Appellant’s counsel did not object to this statement.
Sufficiency of the Evidence
In his first and second points of error, appellant contends that the evidence was legally and factually insufficient to establish that he was knowingly in possession of cocaine.
Standard of Review
In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.
In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The fact-finder alone determines the weight to be given contradictory testimonial evidence because the determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5; see also Lancon v. State, 253 S.W.3d 699, 705–07 (Tex. Crim. App. 2008).
Legal Sufficiency Analysis
To convict appellant of possession of a controlled substance with the intent to deliver, the jury had to find that appellant intentionally or knowingly exercised actual care, custody, control, or management over the substance and that he knew the matter possessed was contraband. Tex. Health & Safety Code Ann. §§ 481.002, 481.115 (Vernon 2005). Here, appellant argues that he was not in exclusive possession of the cocaine because he was merely visiting the house in which he was arrested.
When the contraband is not found on the accused’s person or it is not in the exclusive possession of the accused, additional independent facts and circumstances must link him to the knowing possession of the contraband. Roberson v. State, 80 S.W.3d 730, 735 Tex. App—Houston [1st Dist.] 2002, pet. ref’d). This requirement of additional facts is “designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.” Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). “This rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.” Id. There is no established or set formula of factors that would dictate a finding of a link to support a reasonable inference of knowing possession of contraband. Wingfield v. State, 197 S.W.3d 922, 928 (Tex. App.—Dallas 2006, no pet.) (citing Porter v. State, 873 S.W.2d 729, 732 (Tex. App.—Dallas 1994, pet. ref’d)). It is the “logical force” or degree of the factors, not the number of factors present, that tend to affirmatively link the defendant to the contraband. Id. (citing Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.)). The Court of Criminal Appeals has identified several factors that may help to establish a link between a defendant and the contraband, including whether (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the place where the contraband was found was enclosed; (5) paraphernalia to use the contraband was found in view of or on the accused; and (6) conduct by the accused indicated a consciousness of guilt. Cole v. State, 194 S.W.3d 538, 548–49 (Tex. App—Houston [1st Dist.] 2006, pet. ref’d (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)). Courts have also considered whether traces of the contraband or a large sum of money were found on the accused; the amount of contraband found; whether the accused attempted to flee; and whether the accused was observed in a suspicious area under suspicious circumstances. Id. (citing Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d); Roberson, 80 S.W.3d at 740–42; Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d); Lassaint v. State, 79 S.W.3d 736, 741 (Tex. App.—Corpus Christi 2002, no pet.)).
In this case, several links support a finding that appellant knowingly possessed cocaine: (1) cocaine was found in plain view on a plate and along the floor in one of the bedrooms of the house; (2) appellant was found with a large amount of cash in multiple small bills at the time of his arrest, and Officer Baccus testified that it was common for drug dealers to carry large amounts of cash in small bills; (3) the cocaine was conveniently accessible to appellant, as it was on the pool table and along the floor in the bedroom into which appellant was seen going at the time of the raid; (4) Officer Oliveraz testified that appellant appeared surprised upon noticing that the police were at the front door and ran back into the room where the cocaine was found, thus indicating a consciousness of guilt; (5) the quantity of the cocaine was significant; (6) appellant was the sole occupant in the house at the time of the raid; and (7) he was found in the presence of two knives, a loaded revolver, a shotgun, .22-caliber rifle, and ammunition—weapons that are typically used by sellers of narcotics. Based upon the logical force of these facts and circumstances, we find that the jury could have made further reasonable inferences that appellant knowingly possessed a controlled substance with the intent to deliver. Cole, 194 S.W.3d at 548–49 (Tex. App.—Houston [1st Dist.] 2006 (citing Gilbert, 874 at 298).
Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. Johnson, 23 S.W.3d at 7. We overrule appellant’s first point of error.
Factual Sufficiency Analysis
In his second point of error, appellant contends that the evidence is factually insufficient to support his conviction. Appellant argues that he was neither the person whom the police expected to find in the house nor the individual described in the search warrant. Therefore, appellant contends, he was merely in the vicinity of a controlled substance, which does not by itself support a finding that a person is a party to an offense. Appellant also contends that the controlled substance was not in his control because he was never seen touching, handling, or even looking at the cocaine. However, as noted previously, our analysis of whether the evidence linked appellant to the cocaine does not require a showing that appellant was seen handling or looking at the cocaine. Instead, we simply examine the logical force of the links that are present. Wingfield, 197 S.W.3d at 928 (citing Taylor, 106 S.W.3d at 831). Among the many facts linking appellant to the cocaine found in the house are the following: (1) cocaine was found in plain view on a plate and along the floor in one of the bedrooms of the house; (2) appellant was found with a large amount of cash in multiple small bills at the time of his arrest, and Officer Baccus testified that it was common for drug dealers to carry large amounts of cash in small bills; (3) the cocaine was conveniently accessible to appellant, as it was on the pool table and along the floor in the bedroom into which appellant was seen going at the time of the raid; (4) Officer Oliveraz testified that appellant appeared surprised upon noticing that the police were at the front door and ran back into the room where the cocaine was found, thus indicating a consciousness of guilt; (5) the quantity of the cocaine was significant; (6) appellant was the sole occupant in the house at the time of the raid; and (7) he was found in the presence of two knives, a loaded revolver, a shotgun, .22-caliber rifle, and ammunition, which are weapons that could be used by sellers of narcotics.
We note that appellant’s brief appears to imply that he is legally blind and therefore could not have known he was in the vicinity of contraband. However, appellant did not introduce any evidence of blindness. On the other hand, Officer Oliveraz testified that appellant appeared surprised upon noticing that the police were at the front door of the house and then ran back into the room where cocaine was discovered. In addition, Officer Baccus testified that appellant did not seem to be impaired visually at the time of his arrest because appellant moved about normally and did not use a cane, walker, or glasses.
Viewing the evidence in a neutral light, we conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the proof of guilt is not against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. We overrule appellant’s second point of error.
Prosecutor’s Comment in Closing Argument
In his third point of error, appellant contends that the State, in its closing argument, improperly commented on his exercise of his right to remain silent. The statement to which appellant objects, however, is merely a comment on appellant’s failure to produce evidence that anyone else was in the house prior to or during the raid. Because appellant did not object to the statement at the time it was made, appellant has failed to preserve this point for our review. Tex. R. App. P. 33.1. We overrule appellant’s third point of error.
Conclusion
We affirm the trial court’s judgment.
George C. Hanks, Jr.
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).