TERRY LYNN DAVIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 13, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00527-CR
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TERRY LYNN DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 23110-422
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OPINION
Before Justices FitzGerald, Richter, and Francis
Opinion By Justice FitzGerald
        A jury convicted Terry Lynn Davis of possession of four grams or more but less than 200 grams of cocaine; it assessed his punishment, after enhancement, at life in prison. Davis appeals, arguing the evidence was both legally and factually insufficient to support his conviction, the trial court failed to apply the law of parties to the facts in the jury charge, and the State engaged in improper argument regarding application of parole laws to Davis. We affirm the judgment of the trial court.
Sufficiency of the Evidence
        In his first two issues, Davis argues the evidence is both legally and factually insufficient to support the jury's finding that he actually possessed the cocaine discovered at the time of his arrest. Instead, Davis avers, he was merely present when others possessed and sold the cocaine. In a legal sufficiency review, we view all of 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In any event, the fact finder 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.).
        To establish possession, the State was required to prove that Davis exercised care, control, or management over the cocaine and knew it was contraband. See Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987); see also Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). In this case, police officers obtained a search warrant for the property located at 207 Eason Street in Terrell, Texas, based on a videotaped drug buy by a confidential informant at the residence at that address. The video showed the informant purchasing cocaine from a man later identified as Keith Alexander. The video also showed appellant Davis sitting next to Alexander, although Davis did not hand the informant drugs or take money from her.
        Police executed the warrant, and the officers who were first through the front door saw three men running toward and through the back door of the house. Officers assigned to the outside perimeter of the property watched the men run outside from the house and head toward the chain link fence separating the back yard from a wooded area. One man, Brandon Hartfield, managed to jump the fence, but was apprehended by police nearby. Alexander and Davis were apprehended in the back yard. Alexander was attempting to climb the fence when police caught up with him. When Davis was five to ten feet from the fence, he lay down and surrendered after an officer in the back yard-who had his gun drawn-ordered Davis to stop and give up. The police discovered more than $700 in cash, in small denominations, on Davis's person. (Alexander was carrying approximately $200; Hartfield carried no cash at the time of his arrest.)
        When police searched the premises, they discovered bags of cocaine on the ground outside the back door and just on the other side of the fence. Officers testified the cocaine by the fence was within tossing distance of each of the men. The cocaine was cut into rocks for sale; taken together, it weighed more than seventeen grams. Police also found a shoebox full of marijuana, also portioned for sale, in a bedroom closet inside the house.
        Davis gave police the 207 Eason address as his residence after he was arrested. There was testimony that other individuals could have lived at the address as well.
        Because Davis did not have exclusive possession of the house or the property outside the house where the cocaine was found, the State must affirmatively link him to the cocaine. See Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). This Court has looked to a nonexclusive list of possible affirmative links: (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 when arrested; (5) whether the defendant possessed other contraband; (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 the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor, 106 S.W.3d at 831; Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). We are less concerned with the number of links than with the degree to which the links tend to link the defendant to the contraband. Taylor, 106 S.W.3d at 831.
        In Davis's case a significant number of the listed factors, alone and in combination, tend to link him affirmatively to the cocaine: (1) Davis was present when cocaine was sold to the informant and when cocaine was found in the yard behind his residence; (2) drugs were in plain view in the house at the time of the sale and outdoors at the time of the arrest; (3) the video of the controlled buy shows Davis's proximity to the sale, and the cocaine was found where Davis had exited the house and within tossing range of his surrender; (7) Davis attempted to flee as soon as the police announced their presence and entered the residence; (10) Davis resided at, and thus had the right to possess, the place where the drugs were found; (12) more than seventeen grams of cocaine was found; and (14) Davis possessed more than $700 in cash when he was arrested. We conclude Davis was affirmatively and strongly linked to the cocaine. See id.
        Whether looking at the evidence supporting the verdict or all the evidence offered, a rational juror could certainly have found, beyond a reasonable doubt, that Davis himself exercised care, custody, and management over the cocaine found outside his home. There was ample evidence supporting the jury's finding; we overrule Davis's first two issues.
Omission of Application Paragraph
        In his third issue, Davis complains of the trial court's treatment of the law of parties in the jury charge. The court instructed the jury in the abstract on criminal responsibility as a party, but the court did not include an application paragraph explaining when Davis would be criminally responsible as a party under the facts of his case. Davis timely objected to this omission in the charge. The general rule is that “a charge which contains an abstract paragraph on a theory of law, but does not apply the law to the facts, deprives the defendant of 'a fair and impartial trial.'” Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991). Our review of the record, however, establishes there was sufficient evidence for the jury to convict Davis for his own possession of the cocaine found on the searched premises. “Where the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless.” Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986). Thus, even if we assume the trial court erroneously omitted the application paragraph concerning the law of parties, Davis was not harmed by the error. See id. We overrule Davis's third issue.
Argument Concerning Parole Laws
        In his fourth issue, Davis argues he did not receive a fair trial in the punishment phase because the State employed improper jury argument regarding the application of parole laws to his case. Davis assigns error to the first two sentences of this paragraph in the State's closing:
 
        But the fact is I think that the parole board, for whatever reason, failed Kaufman County. I think the parole board failed Terrell, Texas. And I think they failed [Officer] Joe Blair because a guy who was sentenced to 50 years was back out on the streets and in almost no time committing this new offense on May 11th of 2004. And then after he picked up this charge, they allowed him to make bond, and he committed two more criminal offenses in October of 2005 and another criminal offense in November of 2005 while on bond for this charge. And what I think this is reflective of is a man who doesn't get it. He can sit here today, and he can be sad about the jury verdict, but the fact is is [sic] that he's made the choice to be a habitual repeat offender. . . . He doesn't get it.
 
Davis did not object to the argument in the trial court. Ordinarily, a failure to object to impermissible jury argument waives any error. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989). An exception to the waiver rule exists when argument is so egregious that an instruction to disregard could not cure the harm. Id. We must look to the record as a whole to determine whether the challenged statement is manifestly improper. Id.
        The trial court instructed the jury on the proper consideration of the laws of parole, including the following instruction:
 
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
 
* * * *
 
 
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
 
Tex. Code Crim. Proc. art. 37.07 § 4(b) (Vernon 2006). Given this instruction, we know it cannot be error merely to mention the parole system: the jury is permitted to consider its existence and the fact that a defendant's imposed sentence may be shortened by the operation of that system. See id. The jury is only prohibited from considering how parole law and good time would be applied to the particular defendant before them. Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004). Here, throughout the State's argument, the prosecutor urged the jury to “make a difference.” She told a familiar parable with that theme, and she spoke of Officer Blair's attempt to make a difference when he arrested Davis for the earlier offenses that resulted in Davis's 50-year sentence. The prosecutor encouraged the jury to make a difference on behalf of itself and, in effect, to revive the officer's original thwarted efforts. When the prosecutor mentioned the parole board letting the officer and the county down, her emphasis was on Davis's status as a repeat offender, not on how the jury should consider parole in its own deliberations on punishment. The prosecutor never encouraged the jury to consider how parole law and good time would be applied in Davis's current case. See id.
        Davis argues, without explanation, that “[the prosecutor's] argument injected new facts harmful to Appellant by showing how the parole laws had been applied to Appellant in the past.” But evidence of Davis's parole was offered at trial, and Davis's attorney himself acknowledged the parole when he conceded that the earlier jury had given Davis fifty years for a case with “different facts.” The prosecutor's closing did not inject new facts into the case.
        Finally, the prosecutor's remark could be categorized as either a summary of the evidence or a response to Davis's counsel's remarks concerning the earlier sentence; both of those are appropriate types of argument. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (identifying “approved general areas of argument”).
        Given the entirety of the record, we conclude the prosecutor's reference to the parole system was not manifestly improper. Had Davis objected, any harm could have been cured by a trial-court instruction. We overrule Davis's fourth issue.
Conclusion
        We have decided each of Davis's issues against him. Accordingly, we affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060527F.U05