Opinion issued June 10, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01–09–00857–CR
DERRICK EUGENE McCOWAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1174635
MEMORANDUM OPINION
A jury found appellant, Derrick Eugene McCowan, guilty of the first-degree-felony offense of possession with intent to deliver a controlled substance, weighing four or more grams but less than two hundred grams. See Tex. Health & Safety Code Ann. §§ 481.102, 481.112(d) (Vernon Supp. 2009). The jury assessed punishment at 15 years’ confinement. The trial court entered an affirmative finding on the use or exhibition of a deadly weapon.
In his sole issue, appellant challenges the legal sufficiency of the evidence to support his conviction.
We affirm.
Background
On July 14, 2008, Officer J. Castro and J. Zielonka of the Houston Police Department (HPD) were on patrol when they saw two men standing in a driveway behind a house located at 3207 Lee Street. Officer Castro testified that, from his prior training and experience, he recognized that the men were conducting a “hand-to-hand” transaction, that is, an exchange of money for drugs. Officer Castro testified that the area was a well-known haven for narcotics sales and that he recognized one of the men as Willy Sims, a known drug user, and the other as appellant.
Officer Castro testified that he stopped the patrol car, that he and Officer Zielonka stepped out, and that appellant turned and began walking toward the house. Officer Castro said, “Police, stop!” Sims obeyed and remained with Officer Zielonka. Appellant began to run.
Officer Castro chased appellant inside the back door of the house, through the kitchen, and into the living room, where appellant got down onto the floor and Officer Castro apprehended him. After securing Sims, Officer Zielonka ran into the house to assist. Both officers testified that they saw on the living room table two scales, a plate, a razor blade, a roll of money, a semi-automatic pistol and ammunition, several clear baggies of marijuana, and a plastic container of a rock-like substance packaged in colored baggies. Officer Castro testified that there were 91 baggies of marijuana and that the rock-like substance field-tested positive for cocaine.
Officer Castro testified that, while performing a protective sweep of the house, he saw a picture of appellant on the wall of a bedroom. The picture was admitted into evidence without objection. Officer Castro also saw letters addressed to appellant and appellant’s birth certificate. The letters were not admitted into evidence, but the defense stipulated that there were letters addressed to appellant. Appellant’s birth certificate was admitted. There was nobody else in the house.
Officer Castro found a cellular telephone and a set of keys on appellant’s person. As they were leaving the house, appellant asked, “Can you lock my house for me?” Officer Castro locked the back door with one of appellant’s keys.
A neighbor, Patricia Cole, testified that she had known appellant for 20 years and that she had never known him to live at 3207 Lee Street. She also testified that she did not know who lived at the house and that people were always coming and going.
Appellant’s girlfriend, Ashley Jacobs, testified that she had been staying at the house with appellant for two days prior to the incident at issue. She testified that, on the night of the incident, she had seen crack cocaine and a small plate of powder cocaine on the table. She said that she heard the police knocking at the front door and that she ran out the back door. She testified that there had been two other men there and that they ran out with her, but that appellant had stayed behind. Jacobs said that the pistol recovered from the table in the living room belonged to her, but that she did not know who owned the house.
A. Barker, of the HPD crime lab, testified that the baggies recovered from the scene contained cocaine weighing 4.6 grams.
Legal Sufficiency
Appellant contends that the evidence is legally insufficient to support his conviction and asks this court to render judgment that he be acquitted. Specifically, appellant contends that the State failed to offer legally sufficient evidence that he possessed the cocaine.
A. Standards of Review and Applicable Legal Principles
We review the legal sufficiency of the evidence by considering all of 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 offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Parker v. State, 192 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We “may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.” Williams, 235 S.W.3d at 750. We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Our duty is to ensure that the evidence presented actually supports a conclusion that the defendant committed the offense. Id.
A person commits the offense of possession of a controlled substance, namely cocaine, weighing at least 4 grams but less than 200 grams, if he intentionally or knowingly possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.102, 481.112(d). To prove unlawful possession of a controlled substance, the State must prove that (1) the accused exercised control, management, or care over the substance and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2009). When determining whether the defendant knew that he possessed narcotics, the jury is allowed to infer the defendant’s knowledge from his acts, conduct, remarks, and from the surrounding circumstances. Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
If a defendant was not in exclusive possession of the place where the contraband is found, then additional independent facts and circumstances must affirmatively link the defendant to the contraband in such a way that it can be concluded that he had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). An affirmative link is one that generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. Id. Proof of an affirmative link between the defendant and the contraband is primarily needed to establish intent or knowledge. Id. Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the defendant’s connection with the drug was more than simply fortuitous. Poindexter, 153 S.W.3d at 405-06.
Possible links include, but are not limited to, the following: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant’s proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs; (5) whether the defendant possessed other contraband or drugs when arrested; (6) whether the defendant made any 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 drugs; (10) whether other contraband or other drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place the drugs were found 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. Evans v. State, 202 S.W.3d 158, 162 & n.12 (Tex. Crim. App. 2006); Beall v. State, 237 S.W.3d 841, 850 (Tex. App.—Fort Worth 2007, no pet.).
In determining whether the evidence is sufficient to link a defendant to contraband, the factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. No formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). It is the logical force of the evidence, and not the number of links, that supports a factfinder’s verdict. Evans, 202 S.W.3d at 166.
B. Analysis
Appellant contends that the State failed to affirmatively link him to the cocaine found on the living room table. Appellant points out that no contraband or money was found on either of the men and that appellant was never established as the owner of the residence.
The State presented evidence of the following links between appellant and the cocaine: Officers Castro and Zielonka witnessed appellant conducting a drug transaction in the driveway of the house; appellant attempted to flee; appellant ran into the house and into the living room; the cocaine was found on a table in the living room in plain view, separated into color-coded baggies; 91 bags of marijuana, 2 scales, a plate, a razor blade, a roll of money, a pistol and ammunition were also found in plain view on the same table; Jacobs testified that the pistol found on the living room table belonged to her, that she often visited appellant at the house, and that she had been staying there with him on the night of the incident; Officer Castro testified that, in one of the bedrooms, he found a picture of appellant taped to the wall, letters to appellant, and appellant’s birth certificate; and, as they were leaving the house, appellant asked Officer Castro, “Can you lock my house for me?” and Officer Castro successfully locked the back door with one of appellant’s keys.
This evidence, when viewed in combination, constitutes amply sufficient evidence to connect appellant to the actual care, custody, control, or management of the cocaine such that a jury could reasonably infer that appellant possessed it. See Evans, 202 S.W.3d at 166. Appellant directs us to the testimony of Patricia Cole, a neighbor, who said that she has known appellant for 20 years and did not know him to live at the house. Cole also testified that she did not know who lived at the house and that a number of people were always coming and going. The factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. Although appellant points out factors on which the State failed to present evidence and points to other evidence that weighs in his favor, we consider “the logical force of the circumstantial evidence, not the number of links, that support[] [the] jury’s verdict.” See Evans, 202 S.W.3d at 166. We hold that the evidence is legally sufficient to support the conviction.
Accordingly, we overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).