Opinion
No. 01-06-01159-CR
Opinion issued February 28, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 1053627.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
A jury convicted appellant, Deon Demeche Jones, of possession of cocaine in an amount over four grams and less than 200 grams with intent to deliver, and the trial court assessed his punishment at imprisonment for 35 years. In four issues, appellant argues that (1) the evidence was legally and factually insufficient to prove that he possessed cocaine with the intent to deliver and (2) the evidence was legally and factually insufficient to prove that he possessed more than four grams but less than 200 grams of cocaine. We affirm.
See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d) (Vernon 2003).
Background
On the night of January 12, 2006, Houston Police Department (HPD) Officer R. Corrales was working undercover with a team of officers in an area known to have heavy narcotics activity. In the course of his undercover investigation, Officer Corrales made contact with a man named Frank Ross, who told Officer Corrales that he knew where the officer could buy some cocaine. Ross got into Officer Corrales's unmarked car and directed him to a nearby residence. Officer Corrales testified that he had a good view of the front door of the residence when Ross approached the door and knocked. Officer Corrales testified that the knock was answered by a black male wearing a white T-shirt and red shorts, whom he later identified as appellant. Appellant had opened the solid inner door and Officer Corrales could see him through the closed screen door speaking with Ross. Then Officer Corrales saw appellant open the screen door, open the top of a pill bottle, and pour something into Ross's hand. Ross then immediately made his way back to Officer Corrales and gave Officer Corrales the rocks of cocaine. Officer Corrales gave Ross $40 in marked bills, and Ross took the money back to appellant. Then he walked down the street while appellant looked on from the doorway. Officer Corrales testified that Ross did not get much farther than the next house down before the rest of the HPD team moved in to make the arrest. Officer Corrales testified that the arrest team moved quickly. When the arrest team moved in to arrest Ross, Officer Corrales told them the second suspect, appellant, was still standing in the doorway. Officer Corrales testified that Officer J. McFarland then crossed the yard to arrest appellant, and Officer Corrales witnessed appellant pushing against the screen door, which had been opened by Officer McFarland, and trying to close the solid door. Officer Corrales then witnessed a "scuffle" between Officer McFarland and appellant and informed another officer that Officer McFarland needed help arresting appellant. Officer McFarland testified that as he passed the large tree in front of the residence and crossed the yard he saw appellant standing in the doorway with the screen door partially open. Officer McFarland pointed his flashlight at appellant and ordered appellant to get down on the ground, but appellant took a couple of steps back into the house. Officer McFarland testified that he could see that appellant was holding an orange pill bottle and a clear plastic bag containing a green leafy substance. Officer McFarland then saw appellant throw the bag behind him and lean back and drop the pill bottle onto a window sill behind a couch that was about a foot or a foot and a half away from the door. Officer McFarland testified that only a few seconds passed from the time he jumped out of the van until he had appellant handcuffed. After Officer McFarland handcuffed appellant, he handed appellant over to Officer P. Escobel. Officer McFarland then recovered the pill bottle from the window sill behind the couch and noted that there were three other people in the house-a Hispanic male and two females. Officer Escobel testified that, after he left the van, he handcuffed Ross and then took appellant, already handcuffed, from Officer McFarland and searched him. He testified that he recovered a white film canister from appellant's pocket. The canister contained seven small bags, which each contained a white powder substance that field-tested positive for cocaine. Officer Escobel testified that, in his experience, the cocaine was packaged in the smaller bags because it was ready to be sold and that each little bag was probably worth about $20. In appellant's other pocket, Officer Escobel found the $40 in marked bills that Officer Corrales had used to purchase the drugs. Officer Corrales testified about the various substances collected in conjunction with appellant's arrest. He identified the three rocks of cocaine he had purchased from appellant, which totaled 0.6 grams. He identified the pill bottle from which appellant had gotten the cocaine he sold to Officer Corrales and later tossed behind the sofa. The pill bottle contained 15.4 grams of cocaine in rock form. He also identified a film canister taken from appellant's pocket, which contained smaller bags with a total of two grams of powdered cocaine. Officer McFarland testified that, in his experience, the amount of cocaine appellant had in the pill bottle was consistent with someone who was a "street dealer" and that the approximate value of the cocaine confiscated from appellant was $1600. Officer Corrales testified that, in his experience, drug users would usually have less than a gram of cocaine, usually between two to four rocks, for personal use. He also explained that he had not been able to keep the money used to purchase the cocaine as evidence because the city had had to reuse it for other investigations. At trial, the State presented the testimony of Rosa Rodriguez, the chemist who tested the substances confiscated from appellant. Rodriguez testified that she tested each of the three rocks that Officer Corrales bought from appellant, and she identified all of them as cocaine. She also tested a sample from each of the seven plastic bags of powder from the film canister and identified them as cocaine. Regarding the orange pill bottle, Rodriguez testified that she visually examined the contents and determined that all of the rocks were the same color and texture. She then did a random sampling of some of the rocks, and she identified them as cocaine. She could not remember exactly how many of the rocks were subjected to a chemical analysis, but she said that it was probably more than four of them and maybe more than 10 of them. Rodriguez also testified that simulated substances would look different from a true controlled substance, either in color, texture, or both, and that she would have done a separate chemical analysis on any rock that seemed even slightly different. Appellant objected to the substance from the pill bottle being admitted into evidence, arguing that the State had failed to prove beyond a reasonable doubt that all 15.6 grams were cocaine. The trial court overruled the objection. At trial, appellant presented the testimony of Eteshia Pointer. Pointer testified that she was appellant's girlfriend and that she knew the power in the duplex had been turned off, so the porch light could not have been on. Her testimony was unclear, however, regarding whether the power was off to the entire duplex or only on one side. She also testified that appellant was at the residence where he was arrested only because he was buying various gardening supplies from a friend for his landscaping business. Appellant also presented the testimony of Leticia Gray, who was present in the residence when appellant was arrested. She testified that she was at the residence to buy narcotics and was watching television when Ross came to the door to buy the drugs on behalf of Officer Corrales. She testified that some other dark-skinned man dressed in a white shirt, whose name she did not know, was at the residence, that he answered the door, and that he was the one who sold Officer Corrales the cocaine. She testified that this man dropped his pill bottle and left through the back door after he sold the narcotics and that, at some point, appellant arrived to buy some marijuana. She testified that the door was closed when the police approached and that appellant was then standing in the front door. She also testified that the screen door was very dark and hard to see through. Gray did not see what happened after the police entered the residence because she got down on the ground as ordered by the officer who came into the house. The jury found appellant guilty of possession of a controlled substance weighing more than four grams and less than 200 grams and assessed his punishment at imprisonment for 35 years. This appeal followed.Analysis
In four issues, appellant argues that the evidence was legally and factually insufficient to support his conviction for possession with intent to deliver cocaine and that the evidence was legally and factually insufficient to prove that he possessed more than four grams but less than 200 grams of cocaine.Standard of Review
When an appellant challenges both legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1998, no pet.). We review the legal sufficiency of the evidence by viewing 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 crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all the evidence presented at trial, we may not re weigh the evidence and substitute our judgment for that of the fact finder. Id. Factual sufficiency analysis is broken down into two prongs. First, we must ask whether the evidence introduced to support the verdict, although legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). Second, we must ask whether, considering the conflicting evidence, the jury's verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 415. In conducting this review, we view all of the evidence in a neutral light. Id. at 414. We are also mindful that a jury has already passed on the facts and that we cannot order a new trial simply because we disagree with the verdict. Id. What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). Therefore, we must defer appropriately to the fact finder and avoid substituting our judgment for its judgment, and we may find evidence factually insufficient only when necessary to prevent manifest injustice. Id. at 407; see also Johnson, 23 S.W.3d at 12.Possession with Intent to Deliver
Appellant was charged with knowingly possessing cocaine, a controlled substance listed in Penalty Group 1, with the intent to deliver. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a) (Vernon 2003 Supp. 2007). Appellant contends that the evidence was insufficient to prove that he was the person who sold the drugs to the undercover police officer, that he possessed the pill bottle containing the rocks of cocaine, and that he had the intent to distribute the cocaine. A. Legal Sufficiency To prove appellant possessed a controlled substance, the State must prove that appellant exercised care, custody, control, or management over the controlled substance, that he was conscious of his connection with it, and that he knew what it was. TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38), 481.112(a); Swarb v. State, 125 S.W.3d 672, 684 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). When contraband is not found on the accused's person or when the accused is not in exclusive control of the place where the contraband is found, the State must establish 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. Swarb, 125 S.W.3d at 684. Texas courts have identified several factors that may help to establish a link between the accused and the contraband, including whether (1) the accused was present when the controlled substance was found; (2) the controlled substance was in plain view; (3) the accused was in proximity to the controlled substance and had access to it; (4) the accused was under the influence of a controlled substance when arrested; (5) the accused possessed other contraband; (6) the accused made incriminating statements when arrested; (7) the accused attempted to flee; (8) the accused made furtive gestures; (9) the odor of the controlled substance found was present; (10) the accused owned or had the right to possess the place where the controlled substance was found; (11) the controlled substance was found in an enclosed place; (12) the amount of controlled substance found was significant; and (13) the accused possessed a large amount of cash. Id. 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 v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Evidence that links the accused to the controlled substance must establish a connection that was more than fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The State presented evidence that the film canister containing seven small bags of cocaine powder was found in appellant's pocket. See Akins v. State, 202 S.W.3d 879, 892 (Tex.App.-Fort Worth 2006, pet. ref'd) (holding that finding controlled substance in accused's pocket was "abundant evidence of his possession of [a controlled substance] from which the jury could have concluded that [accused] was in possession of [a controlled substance]"). Regarding the pill bottle containing the rocks of cocaine, sufficient evidence linked appellant to those drugs. Officer Corrales identified appellant as the suspect who had sold him the cocaine and appellant never left the doorway of the house until other officers approached to arrest him. Officer McFarland saw the pill bottle in appellant's hand as he approached to arrest him, and he also saw appellant drop the pill bottle behind a nearby couch. The pill bottle was later recovered from a window sill directly behind the couch, which was within appellant's reach. The officers also testified that they found the $40 that Officer Corrales had used to purchase the cocaine in appellant's pocket. While appellant correctly points out that the mere presence of the accused at a place where contraband is located does not make him a party to joint possession, the evidence presented by the State is of such strong logical force that a reasonable fact finder could conclude beyond a reasonable doubt that appellant knowingly possessed cocaine. See King, 29 S.W.3d at 562; Roberson, 80 S.W.3d at 735-36. In order to prove possession with intent to deliver, the State must prove that appellant: (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38), 481.112(a) (Vernon 2003 Supp. 2007); Nhem v. State, 129 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2004, no pet.). 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 courts have 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. Garcia, 218 S.W.3d at 764. Appellant had been witnessed selling cocaine to an undercover police officer just moments before his arrest, appellant still had the marked bills used to purchase the cocaine in his pocket, and he had a film canister with powdered cocaine divided into seven smaller bags, each worth about $20. When viewed in the light most favorable to the verdict, the evidence is legally sufficient to show that a rational trier of fact could have found that appellant knowingly possessed cocaine with the intent to deliver beyond a reasonable doubt. See King, 29 S.W.3d at 562; Nhem, 129 S.W.3d at 699. B. Factual sufficiency Regarding the factual sufficiency of the evidence, appellant points to several facts that conflict with the State's evidence. Appellant argues that it was not logical that he would stand in the doorway of a house watching an officer arrest a man to whom he had just sold drugs without attempting to escape. He also argues that the officers could not have clearly identified him because the porch was poorly lit he was standing behind a screen door. Appellant also claims that the State did not meet its burden of proof because it failed to produce the marked bills used to purchase the drugs from appellant. Appellant also points to Gray's testimony that appellant was not the person who sold the drugs to Officer Corrales. Gray testified that another man sold the cocaine and then left through the back door moments after the sale. However, Officer Corrales testified that the marked bills were not available for use at trial because it was being reused in other cases. He also testified that a streetlight, a porch light, and a small amount of light from inside the house provided enough light for him to see the porch. Officer McFarland testified that he used his flashlight to light the area when he moved in to arrest appellant. Regarding appellant's argument that he would have tried to escape if he had been guilty of selling cocaine, the State points out that appellant did try to escape once Officer McFarland approached the front porch to arrest him. Officer Corrales testified that he saw appellant remain standing in the doorway for the very short amount of time between the sale and Ross's and appellant's arrests. The jury was permitted to find the testimony of the HPD officers credible despite the testimony of appellant's witnesses. See Cain, 958 S.W.2d at 408-09. Thus, after examining all of the evidence, we determine that the evidence supporting the verdict is neither so weak that the jury's verdict seems clearly wrong or manifestly unjust, nor is the conflicting evidence so strong that the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. We overrule appellant's first and second issues.Possession of Cocaine Weighing Between Four and 200 Grams
In his third and fourth issues, appellant argues that the State's evidence was legally and factually insufficient to prove that he possessed cocaine weighing more than four grams and less than 200 grams. Specifically, he argues that the State failed to show that each individual rock of cocaine found in the orange pill bottle tested positive for cocaine. A. Legal sufficiency The State must show that the cocaine possessed by appellant weighed at least four grams in the aggregate-it is not required to separate the cocaine from adulterants and dilutants. TEX. HEALTH SAFETY CODE ANN. § 481.112(d) (Vernon 2003). A sampling of each distinct parcel of a substance alleged to be narcotics is enough to satisfy this burden. Zone v. State, 118 S.W.3d 776, 777 (Tex.Crim.App. 2003); see also Melton v. State, 120 S.W.3d 339, 343-44 (Tex.Crim.App. 2003) (holding that it was unnecessary for State to test each rock to determine whether it contained cocaine when rocks were all found in same bag and were visually examined to establish that they all had same color and texture, and State did conduct random sampling of some rocks). The State produced Rodriguez's testimony regarding the procedure she used to establish that the substances confiscated during appellant's arrest were cocaine. She took a sample of the powdered substance from each of the seven individual bags found in the film canister and determined that they were all cocaine. We conclude that the State presented legally sufficient evidence that all of the powder found in the canister, totaling two grams, was cocaine. See Zone, 118 S.W.3d at 777. She also tested each of the three rocks sold to Officer Corrales and determined that they were all cocaine. We conclude that the State presented legally sufficient evidence that all 0.6 grams of the rocks sold to Office Corrales were cocaine. See id. Finally, she testified that she visually inspected all of the rocks in the orange pill bottle and determined that they were of similar color and texture. She then randomly selected at least four of the rocks to test and determined that they were cocaine. We conclude that the State presented legally sufficient evidence that all 15.4 grams of the rocks found in the orange pill bottle were cocaine. See Melton, 120 S.W.3d at 343-44. B. Factual Sufficiency Appellant did not present any conflicting evidence or attempt to test the substances himself in order to establish that the rocks in the pill bottle were not cocaine. See Gabriel v. State, 900 S.W.2d 721, 722 (Tex.Crim.App. 1995) (holding that evidence was sufficient when the State tested only five of 54 bags containing cocaine and noting that "appellant could have conducted independent chemical tests on all fifty-four [bags] to show they did not contain the same substance") (citing TEX. CODE CRIM. PROC. ANN. art. 39.14 (Vernon Supp. 2007)). Therefore, the evidence, when viewed in a neutral light, shows that the jury's verdict neither was against the great weight and preponderance of the evidence nor seems clearly wrong or manifestly unjust. Watson, 204 S.W.3d at 414-15. We conclude that the State presented factually sufficient evidence that appellant possessed cocaine weighing between four and 200 grams.We overrule appellant's third and fourth issues.