Affirmed and Memorandum Opinion filed January 25, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-00948-CR
NO. 14-05-00949-CR
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JAMES JAMEL BENTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 1009745; 1009744
M EM OR A N D U M O P I N I O N
Challenging his convictions for possession of controlled substances with intent to deliver, appellant James Jamel Benton attacks the legal and factual sufficiency of the evidence. We affirm.
I. Factual and Procedural Background
On December 8, 2004, the Harris County Sheriff=s Department received a complaint that narcotics were being sold in a trailer house at a specific location. Around 9:00 o=clock p.m., a uniformed narcotics team went to the trailer to investigate, and found the front door wide open. Deputy Jimmie Cook and Deputy Mario Quintanilla could see three men sitting in the living room. Deputy Cook testified that appellant sat on a loveseat positioned in plain view. Located on the loveseat next to appellant were two small clear plastic bags of crack cocaine. Deputy Cook also saw a large amount of crack cocaine, marijuana, pills, bottles of codeine, and cash sitting on the kitchen counter.
After entering the trailer, the police found four individuals and a considerable amount of narcotics. The narcotics team seized approximately 167 grams of crack cocaine, 17 grams of ecstacy tablets, four bottles of codeine, and marijuana. The police also collected a total of $2,297 in cash from the suspects and the kitchen counter. Appellant himself held about $320 in cash. The police immediately arrested three of the four suspects, including appellant. The officers also recovered three guns in the living room, one of which was located under the loveseat where appellant had been sitting.
Appellant was charged with two counts of possession with intent to deliver a controlled substance, namely cocaine and 3,4Bmethylenediozy methanphetemine (commonly known as ecstasy tablets). He pleaded Anot guilty@ to each offense. A jury found appellant guilty as charged on both counts. The trial court, in a separate punishment proceeding, sentenced appellant to eighteen years= confinement on each count, with the sentences to run concurrently.
II. Issues and Analysis
Appellant asserts the evidence is legally and factually insufficient to support his convictions. When reviewing the legal sufficiency of the evidence, we examine 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. Jackson v. Virginia, 443 U.S. 307, 319(1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). The standard is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not weigh the evidence, or evaluate the credibility of any witnesses, as this is the function for the trier of fact. Fuentes v. State, 991 S.W.2d. 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved any conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Id. at 417. If this court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414B17. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See id; Fuentes, 991 S.W.2d at 271. In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A. Is the evidence legally and factually sufficient to support the jury=s findings that appellant knowingly and intentionally possessed a controlled substance?
In two issues, appellant contends that the evidence is legally and factually insufficient to: (1) support the jury=s finding that appellant knowingly and intentionally possessed the controlled substances (cocaine and ecstacy), and (2) support the jury=s finding that appellant possessed these controlled substances with the intent to deliver. [1]
A person commits the offense of possession with intent to deliver a controlled substance if he knowingly or intentionally possesses a controlled substance with the intent to deliver it. Tex. Health & Safety Code Ann. ''481.112(e), 481.113(d) (Vernon Supp. 2005). To prove unlawful possession of a controlled substance, the State must prove the accused: (1) exercised care, control, custody, or management over the contraband; and (2) knew the matter was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the place where the controlled substance is found, the State must prove additional facts and circumstances that affirmatively link the accused to the contraband in such a way it can be concluded the accused had knowledge of the contraband and exercised control over it. Guiton v. State, 742 S.W.2d. 5, 8 (Tex. Crim. App. 1987).
Affirmative links are established when the evidence, direct or circumstantial, establishes Athe accused=s connection with the drug was more than just fortuitous.@ Poindexter 153 S. W.3d at 405-06 (Tex. Crim. App. 2005) (quoting Brown v. State, 874 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Courts have identified a non-exhaustive list of factors that may help to show an affirmative link to controlled substances; however, no set formula of facts necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).[2] Rather, affirmative links are established by a totality of the circumstances. Id. It is not the number of factors present that is important but, rather, the Alogical force@ they create to prove the defendant knowingly possessed the controlled substance. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).
Appellant contends that the following evidence contradicts possession: (1) when arrested, appellant did not have any drugs, or drug paraphernalia on his person; (2) the crime scene investigator did not find appellant=s fingerprints on any of the contraband or other items recovered from the trailer home; (3) the narcotics team did not find any identification, bills, or keys linking appellant to the trailer home; (4) there is no testimony showing appellant knew of the contraband on the counter or that he was in any way connected to it; and (5) appellant did not attempt to flee.
Despite appellant=s contentions, the absence of some factors that may establish an affirmative link is not evidence of innocence to be weighed against evidence connecting appellant to the narcotics. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). After receiving a tip narcotics were being sold from the trailer home, the narcotics team went to the location and found the front door of the trailer home wide open. Deputy Cook observed appellant sitting next to two clear bags of crack cocaine that were in plain view. Deputy Cook also saw other contraband in plain view, including even larger quantities of cocaine as well as codeine, ecstasy, and marijuana on the kitchen counter. The kitchen counter was in close proximity to where appellant was seated. At trial, Deputy Quintanilla stated anyone standing near the kitchen and, in fact, people standing outside could see the narcotics on the kitchen counter. See Porter v. State, 873 S.W.2d 729, 733 (Tex. App.CDallas 1994, pet. ref=d) (concluding evidence sufficient to support inference of knowing possession when 167 grams of cocaine were sitting on a table in plain view and in close proximity to the accused). Deputy Cook also testified when the officers entered the trailer home, the occupants had Aa look of uh-oh.@ In addition, appellant reached to his left and then moved to his right.[3] Deputy Quintanilla noted that the occupants, upon noticing the uniformed officers, scrambled and moved Aas if they wanted to hide or destroy the evidence.@ See Warren v. State, 971 S.W.2d 656, 661 (Tex. App.CDallas 1998, no pet.) (finding that evidence of accused=s furtive gestures and proximity to the cocaine was factually and legally sufficient to support conviction).
Appellant disputes these allegations through his own testimony, claiming the officers planted the cocaine near him. Appellant further testified he had no knowledge of the contraband recovered because it was not in plain view. Appellant claimed the narcotics were enclosed in cabinets and containers and not sitting on the kitchen counter. However, such testimony merely contradicts the officers= testimony and was a conflict for the jury to resolve. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). A reviewing court may not substitute its conclusions for that of the jury, nor may it interfere with the jury=s resolution of conflicts in evidence. See Watson, 204 S.W.3d. at 414-17. Viewing this evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have concluded appellant had knowledge of the contraband and exercised control over it. Moreover, the record shows the jury=s decision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
B. Is the evidence legally and factually sufficient to support the jury=s findings that appellant had an intent to deliver a controlled substance?
Appellant also argues the evidence is insufficient to support a conviction of possession with the intent to deliver. ADeliver@ means to transfer, actually or constructively, a controlled substance to another. Tex. Health & Safety Code Ann. ' 481.002(8) (Vernon Supp.2002). Intent to deliver a controlled substance also can be proven by circumstantial evidence, such as the quantity of narcotics possessed, and the presence of the accused on the premises. Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.CDallas 2004, no pet.). AIntent 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 contends the evidence is more consistent with the inference he possessed the narcotics for personal use rather than for delivery. Appellant claims insufficient evidence exists to support the intent-to-deliver element because: (1) no undercover activities were conducted to show appellant illegally obtained the money found in his possession; (2) the narcotics team did not recover ledgers, razor blades, or other paraphernalia associated with the sale of narcotics from the trailer home; (3) when arrested, appellant did not have any narcotics on him; (4) the narcotics team did not find identification, bills, or keys linking appellant to the trailer; (5) appellant was not combative and did not attempt to flee; (6) appellant never reached for a gun nor possessed one; and (7) there is no testimony showing appellant=s status as a narcotics dealer or a narcotics user.
The record reflects appellant was arrested in a trailer home containing approximately 167 grams of crack cocaine, 17 grams of ecstacy tablets, four bottles of codeine, and marijuana. Deputy Cook testified the contraband found in the trailer home had a street value of more than $8,000.00. The amount and value of the narcotics recovered from the trailer home exceeds the typical amount possessed for personal use. See Mack v. State, 859 S.W.2d 526, 528, 529 (Tex. App.CHouston [1st Dist.] 1993, no pet.) (holding 8.9 grams of crack cocaine, valued at $600, a sufficient amount from which to infer an intent to deliver). The record also indicates the police did not find paraphernalia used to consume narcotics on appellant or in the trailer home. See id. (concluding that absence of paraphernalia for smoking or using cocaine supports an intent to deliver rather than a intent to consume). In addition to the large quantity of contraband, the narcotics team collected cash totaling $2,297, with appellant holding $320 of that amount. Furthermore, Deputy Cook recovered one of the three weapons from the loveseat where appellant had been sitting. See Austin v. State, Nos. 14-00-01389-CR, 14-00-1390-CR, 2002 WL 3700045, at *3 (Tex. App.CHouston[14th Dist.] Mar 07, 2002, no pet.) (not designated for publication) (concluding that visible handguns combined with narcotics and large amounts of cash support an inference that the guns were used to facilitate narcotics activity). Expert testimony by experienced law enforcement officers also may be used to establish an accused=s intent to deliver. See Mack, 859 S.W.2d at 529. Deputy Quintanilla, a fourteen-year veteran with the Harris County Sheriff=s Department, testified based on the guns, money, large quantity of narcotics, and the fact no narcotics paraphernalia was recovered, he believed narcotics were being sold out of the trailer home.
Appellant testified he was not aware of weapons or the narcotics because they were not in plain view when he arrived at the trailer home. But contradictions or conflicts between the witnesses= testimony do not destroy the sufficiency of the evidence; rather, they relate to the weight of the evidence and the credibility the jury assigns the witnesses. Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d). As the trier of fact, the jury is the sole judge of the of the credibility of witnesses and is free to accept or reject all or part of the witnesses= testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
After viewing this evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have determined that appellant possessed the narcotics with the intent to deliver. Likewise, we conclude the jury=s decision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
III. Conclusion
A rational jury could have found appellant possessed the cocaine and ecstacy because appellant was present at the trailer home where a large quantity of narcotics were found in plain view. Appellant=s close proximity and accessibility to the narcotics combined with his furtive gestures support the jury=s findings that appellant knowingly and intentionally possessed the controlled substances. A rational jury could have found appellant had an intent to deliver based on the evidence that narcotics, cash, and weapons were recovered from the trailer home, and the officers did not find narcotics paraphernalia used for personal consumption. Accordingly, having found the evidence legally and factually sufficient to support appellant=s convictions, we overrule his two issues and affirm the trial court=s judgments.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed January 25, 2007.
Panel consists of Justices Fowler, Edelman, and Frost.
Do not publish C Tex. R. App. P. 47.2(b).
[1] Because appellant makes specific challenges to the legal and factual sufficiency of the evidence, we address his specific arguments separately.
[2] This court recently summarized a non-exclusive list of possible affirmative links Texas courts have recognized as sufficient, either singly or in combination, to establish a person=s possession of contraband. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (citing Washington v. State, 902 S.W.2d 649, 652 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d). The list includes the accused=s presence when a search is conducted, whether the contraband was in plain view, the accused=s proximity to and the accessibility of the narcotic, whether other contraband or drug paraphernalia were present, whether the accused made furtive gestures, whether the accused was found with a large amount of cash, and whether the conduct of the accused indicated a consciousness of guilt. Id. at 291.
[3] Deputy Cook testified that two bags of cocaine were sitting to appellant=s left. Deputy Cook also testified that he helped prepare state=s exhibit number three, which was a diagram of the living room. The exhibit was a fair and accurate representation of the scene, although it was not drawn to scale. Based on this information, a rational jury could have determined a gun was located under the loveseat on appellant=s right.