No. 05-08-00052-CR
Opinion Filed August 17, 2009. Do Not Publish. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F07-48634-I.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Tarrent Stewart of unlawful possession with intent to deliver a controlled substance in the amount of four grams or more but less than two hundred grams, enhanced. The trial court sentenced appellant to confinement for twenty years and a $1000 fine. On appeal, appellant argues that the evidence is legally and factually insufficient to support the conviction and that the trial court erred by admitting extraneous offense evidence. We affirm.
Background
On February 8, 2007, Detective Keith Tyler and his partner, Detective Gerardo Huante, were conducting an undercover investigation into complaints of drug activity in and around a house located at 5003 West University in Dallas. They saw a man (John Doe) walking on the sidewalk and stopped to ask him if he knew where they could find some "hard" (crack cocaine). Doe told them he did. He got in the car with the undercover detectives and directed them to the house at 5003 West University. Doe asked the detectives to park down the street, away from the house, because "he don't like people coming to the house, especially people they don't know." The detectives gave Doe $40 in marked money to purchase drugs. Doe walked to the house and went in the side door. After a while, the detectives began to think they were going to be "ripped" (Doe was going to steal their money), so they went to the house and knocked on the side door. Appellant answered the door and asked, "What do you want?" Detective Tyler told him to "tell the guy to come out. He has my money." Appellant walked back into the house and said, "Hey, you need to come out and handle this. I told you, I don't want people at the house." Appellant then sat at a small table in the corner, broke off a piece of a crack cocaine "cookie," and gave it to Doe. According to Detective Huante, the cocaine was arranged on the table like "he's selling 5's, 10's, 20's, 50's." Detective Huante also saw a pistol on the table. Doe gave the detectives the drugs. When the detectives left, Doe followed them, wanting a "tip" for arranging the drug transaction. They refused to tip Doe. The detectives returned to their offices and conducted a field test on the product they had just bought. When it tested positive for cocaine, they obtained a search warrant. The next day, Detective Huante and sixteen other officers executed the warrant at the house. As they arrived at the house, Detective Huante saw appellant standing outside the house with the door open. He thought appellant saw them, so they "address[ed] him" and appellant went back in the house and closed the door. The police officers immediately entered the house to execute the warrant. They found seven people in the house: four people lying on the couch, an elderly lady lying in a bed, the owner of the house near the kitchen and the living area; and appellant outside the bathroom. Detective Huante testified that the crack cocaine was laid out on the table the same way he saw it the day before-"in a row in increments of the crack cocaine." He also found a plastic bag containing marijuana and crack cocaine in the toilet, which was still cycling. The bag was too large to flush. Detective Huante testified that appellant was the only occupant of the house that was near the bathroom where the cocaine was found in the toilet. And he said the search warrant teams entered the house so fast that there was no way anyone other than appellant could have been in the bathroom since the toilet was still cycling. He also said appellant was the only one near the cocaine on the table, and that the four people lying on the couch were "users" with no links to the house or the cocaine. The elderly lady in the bed told the officers she was grateful they had come. When the officers searched appellant, they found over $500 in cash rolled up in his pocket. He had one $100 bill, one $50 bill, eleven $20 bills, five $10 bills, fifty $5 bills, and thirty-one $1 bills. Detective Huante testified that these denominations were "pretty consistent with the drug trade." Appellant did not have the marked $40 the detectives had given Doe the day before, but the detective testified that he did not expect it to still be there. During the search, the officers found cocaine on the table and in the toilet. The State offered evidence that the weight of the crack cocaine from the undercover drug buy was .29 grams, and the weight of the cocaine seized during the search was 16 grams. The officers also seized an ecstasy pill and marijuana during the search. Appellant did not present any witnesses or evidence. Legal and Factual Insufficiency of the Evidence
In reviewing a legal insufficiency challenge, we examine 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In reviewing a factual insufficiency challenge, we view the evidence in a neutral light, favoring neither party, to determine whether the verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence supporting the conviction, although legally sufficient, is factually insufficient when it is so weak that the verdict seems clearly wrong and manifestly unjust, or when it is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. We must defer to the jury's determination concerning the weight to be given to contradictory testimony unless the record clearly reveals a different result is appropriate. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). To sustain its burden, the State had to show that appellant knowingly possessed with intent to deliver a controlled substance, cocaine, in an amount by aggregate weight, including adulterants and dilutants, of four grams or more but less than two hundred grams. Tex. Health Safety Code § 481.112 (Vernon 2003). To establish that appellant had knowing possession of a controlled substance, the State had to prove appellant exercised actual care, custody, control, or management over the drugs and that he knew the substances were contraband. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). The evidence "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Id. (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)); Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). In determining whether sufficient evidence links the appellant to the contraband, we may consider a variety of factors, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made 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 contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where 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, 202 S.W.3d at 162 n. 12. Circumstantial evidence may establish sufficient links. See Frierson v. State, 839 S.W.2d 841, 849 (Tex. App.-Dallas 1992, pet. ref'd). And possession may be joint. See Smith v. State, 176 S.W.3d 907, 916 (Tex. App.-Dallas 2005, pet. ref'd). Appellant argues that the evidence is legally insufficient because ten of the fourteen factors favor him and because he was merely present at the location where the cocaine was found. We cannot agree. The number of factors linking a defendant to contraband is not as important as the degree to which the factors establish that the defendant's connection to the contraband is more than fortuitous. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd.) In this case, the evidence showed that the cocaine was in plain view and that appellant was the only one in close proximity to it. A large quantity of cocaine was found in the toilet, and appellant was the only occupant of the house found near the bathroom. In addition to the cocaine, the officers also seized marijuana and ecstasy. The officers seized sixteen blue ziplock-type baggies containing cocaine. They also seized razor blades used for cutting the cocaine. Although appellant did not own the house, one of the detectives testified that appellant was "controlling the house." Detective Tyler testified that appellant answered the door when they knocked the day before the search and told Doe that he did not want people at the house. The detectives personally saw appellant the day before sitting at the table where the cocaine was lined up in varying quantities. And they personally observed appellant cut a piece of the cocaine cookie for Doe to give to them in exchange for the $40. The evidence showed that the four people lying on the couch were only users. And the owner of the house was not found near the cocaine and was never observed in close proximity to the cocaine. Appellant had a large amount of cash, over $500, rolled up in his pocket when he was arrested. The cash was in denominations consistent with the drug trade. We conclude that this evidence is legally sufficient to link appellant to the cocaine. We resolve appellant's first issue against him. Appellant also argues that the evidence is factually insufficient to link him to the cocaine because the evidence shows, at most, that he was in the same house where the cocaine was found and mere presence is insufficient to establish care, custody, or control of the drugs. He also contends that we should not consider evidence of the undercover drug buy the day before. Appellant does not cite any authority for the proposition that we do not consider all evidence, whether properly admitted or not, in a factual insufficiency review. It is well settled that we consider all evidence in reviewing a factual insufficiency challenge. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). Appellant points out that the evidence showed that he did not own or lease the house, there were numerous people at the house, no one saw appellant attempt to flush the cocaine down the toilet, he did not make any incriminating statements, furtive gestures, or attempt to flee, and he was not under the influence of drugs at the time of the arrest. Having reviewed all the evidence in a neutral light, we cannot conclude that the evidence contrary to the verdict is so overwhelming as to render the verdict clearly wrong or manifestly unjust. We conclude that the evidence is factually sufficient to support the verdict. We resolve appellant's second issue against him. Admission of Extraneous Offense Evidence
In his third issue, appellant argues that the trial court erroneously admitted evidence of the undercover drug buy the day before the warrant was executed. At trial, appellant objected to the evidence on two grounds: that the evidence was not relevant under rule 404(b) and that its prejudicial effect outweighs any probative value under rule 403. On appeal, appellant challenges only the trial court's ruling under rule 404(b). We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will not overturn the trial court's ruling as long as it is within the zone of reasonable disagreement. Id. If the ruling is reasonably supported by the record and is correct under any applicable theory of law, we must uphold it. Trevino v. State, 991 S.W.2d 849, 855 (Tex. Crim. App. 1999). Evidence of extraneous offenses is generally not admissible. Tex. R. Evid. 404(a). See Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997); Carter v. State, 145 S.W.3d 702, 706-11 (Tex. App.-Dallas 2004, pet. ref'd). However, rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Tex. R. Evid. 404(b). An extraneous offense has noncharacter-conformity relevance when it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex. R. Evid. 401; Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Tex. R. Evid. 404(b); Santellan, 939 S.W.2d at 168. Appellant argues that none of the exceptions in rule 404(b) apply to allow admission of evidence of the undercover drug buy. He contends that the evidence was not admissible (1) to show knowledge because the cocaine was in plain view; (2) to show intent because the quantity of cocaine seized was sufficient to infer intent to distribute; (3) to show identity because there was no doubt that appellant was the one arrested and charged with possession on the day the search warrant was executed; (4) to show probable cause for the warrant because he did not contest the search; or (5) to show absence of mistake or accident because these were never defensive issues. We disagree. The State's burden is to prove the essential elements of the offense beyond a reasonable doubt regardless of whether the defendant chooses to contest any of those elements. Payton v. State, 830 S.W.2d 722, 730 (Tex. App.-Houston [14th Dist.] 1992, no pet.). Additionally, during closing argument, appellant argued that the police could have been mistaken about their identification of him as the same person who was there the day before during the undercover drug buy, that there were numerous other people in the house to whom the drugs could have belonged, that he did not have the $40 from the undercover drug buy when he was arrested, and the police did not run any fingerprint or DNA analysis on any of the seized drugs and packages to show that he had possessed any of the drugs. The evidence of the undercover drug buy showed that, the day before the warrant was executed, appellant answered the door at the same house that was searched the next day, appellant told Doe he did not like people coming to the house, appellant sat down at a table where cocaine was lined up by quantity, and appellant cut off a piece of a cocaine cookie and gave it to Doe to give to the detectives. On the day of the search, the cocaine was found on the same table where the detectives had seen it the day before, and Detective Huante testified that the cocaine cookie seized during execution of the search warrant was the same cocaine cookie he saw appellant with the day before. The evidence of the undercover buy served to make a fact of consequence-appellant's care, custody, and control of the contraband with intent to distribute-more or less probable than without the evidence, rendering it relevant and admissible under rule 404(b). Powell, 63 S.W.3d at 438; Payton, 830 S.W.2d at 730. Evidence that appellant sold cocaine one day before his arrest is relevant to whether he possessed cocaine with intent to deliver. And evidence of the amount of a controlled substance seized only raises an inference about appellant's intent. Payton, 830 S.W.2d at 730 (citing Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. [Panel Op.] 1981) and Earvin v. State, 632 S.W.2d 920, 924 (Tex. App.-Dallas 1982, pet. ref'd)). Further, the court instructed the jury that it could consider the evidence of the undercover drug buy only if it believed beyond a reasonable doubt that appellant committed the offense and only then for the purpose of "determining the proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense on trial and for no other purpose." This shows that the court admitted the evidence for its noncharacter-conformity purpose of determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant. See Tex. R. Evid. 105(a) (providing for limiting instruction when evidence admissible for one purpose but not admissible for another). We conclude that the trial court did not abuse its discretion by admitting the extraneous offense evidence to show that appellant knowingly possessed the cocaine with intent to distribute it. We resolve appellant's third issue against him. Conclusion
We affirm the trial court's judgment.