Johnson, William Dewayne v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmedand Opinion filed July 25, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01054-CR

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WILLIAM DEWAYNE JOHNSON, Appellant

V.

THE STATE OF  TEXAS  ,Appellee

On Appeal from the 263rd District Court

Harris  County, Texas

Trial Court Cause No. 871,882

O P I N I O N

In this appeal, appellant, William Dewayne Johnson, challenges the legal and factual sufficiency of the evidence to support his conviction for possession with intent to deliver a controlled substance. We affirm.

Background and Procedural History

Denise Gonzalez, a property manager, testified that on the afternoon of March 16, 2001, she saw appellant on the property of the Garden Oaks Apartments in Harris County, carrying a white plastic grocery bag that looked like a AFiesta@bag. Gonzalez said she asked appellant, who was not a resident of the complex, to leave but he returned four or five times. Gonzalez called the police. Angela Johnson, a resident of Garden Oaks Apartments, testified she was doing her laundry when appellant, whom she knew was not a resident, entered the laundry room with a brown paper bag. After he entered the laundry room, Johnson stated that appellant just sat there and did no laundry. Then the police officers arrived about five or ten minutes later.

Houston Police Officer B. A. Cross testified that he was called to Garden Oaks around 3:15 to 3:30 p.m. regarding trespassers and that Gonzalez described one of the trespassers to him as a black male wearing a black jersey shirt with yellow numbers. Officer Cross stated that he and Officer Francisco Fernandez saw Johnson, another woman and appellant in the laundry room around 3:45 p.m. Appellant was wearing a black jersey shirt with yellow numbers, matching the description of the trespasser. Officer Fernandez testified that he escorted appellant out of the laudry room and placed him into the back of the police car while Officer Cross searched the area. Officer Cross testified that he searched the laundry room, trash cans, washers and dryers. He found wet men=s white tee shirts in a dryer that was not running, became suspicious, and removed a few of the wet shirts, discovering that they were covering a white plastic shopping bag. Officer Cross testified that when he looked inside the white plastic shopping bag, he saw several white rocks, which he believed were crack cocaine. He said the bag also contained several cigars which appeared to be filled with what he believed was marijuana. Officer Cross took possession of the bag and returned to the patrol car. Officer Fernandez testified that as Officer Cross returned to the police car holding the white plastic shopping bag, appellant voluntarily stated, AI didn=t stick nothing in no mother-f___ing washer.@ Officer Fernandez testified that neither officer had mentioned where the bag was found prior to appellant=s statement.

Connie Dieringer, a chemist with the Houston Police Department=s Crime Lab, tested the evidence recovered from the laundry room and testified that the bag contained approximately 20-30 rocks of crack cocaine, weighing 10.0 grams, and 40.4 grams of marijuana. Officer Donald Lablanc of the Houston Police Department=s Narcotics Division opined that the street value of the contraband is over one thousand dollars, an amount in his opinion Adefinitely for intent to deliver.@ Appellant did not testify.

The jury found appellant guilty of possession with intent to deliver a controlled substance. The trial court assessed punishment at thirty years= confinement. This appeal followed.

Legal and Factual Sufficiency

Appellant claims the evidence is legally and factually insufficient to support his conviction for possession of cocaine. We apply different standards when reviewing the evidence for legal and factual sufficiency.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2788 89 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). If a reviewing court determines the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal because if the evidence is insufficient under Jackson, the case should never have been submitted to the jury. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In a legal sufficiency challenge, we do not re weigh the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

In reviewing factual sufficiency, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates the proof of guilt is either so obviously weak as to undermine confidence in the jury=s determination, or, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrookv. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).

A person commits an offense if that person knowingly possesses with intent to deliver a controlled substance. See Tex. Health & Safety Code Ann. ' 481.112. When an accused is charged with unlawful possession of a controlled substance, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. See Linton v. State, 15 S.W.3d 615, 619 (Tex. App.CHouston [14th Dist.]2000, pet. ref=d). Without an admission by the accused, knowledge may be inferred from the circumstances. Id. at 618. While the element of possession may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so that one may reasonably infer the defendant knew of the contraband=s existence and exercised control over it. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). The State must prove more than that appellant was merely in the vicinity of the contraband. Humason v. State, 728 S.W.2d 363, 365 (Tex. Crim. App. 1987). The thrust of appellant=s complaint is that the State did not affirmatively link him to the cocaine. We disagree.

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 (Tex. App.CHouston [14th Dist.]2001, pet. ref=d). Rather, affirmative links are established by a totality of the circumstances. See Sosa v. State, 845 S.W.2d 479, 483 84 (Tex. App.CHouston [1st Dist.]1993, pet. ref=d) (finding the totality of the circumstances was of such a character that the jury reasonably could conclude the defendant was aware of the contraband and exercised control over it). The number of affirmative links present is not as important as the Alogical force@or the degree to which the factors, alone or in combination, tend to affirmatively link appellant to the contraband. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).

Here, the contraband was found in a dryer in the laundry room in which appellant was present, but not doing laundry. In addition, apartment manager Gonzalez testified that she saw appellant trespassing on the property, carrying a white plastic shopping bag similar to the one later found in the dryer. A search of the laundry room uncovered a white plastic bag with red lettering in a dryer covered by wet men=s tee shirts containing 20-30 rocks of cocaine as well as several cigars of marijuana. Appellant then made incriminating statements regarding the location where the bag was found. The evidence is legally sufficient if the combined and cumulative effect of all the incriminating circumstances point to appellant=s guilt. See Grant v. State, 989 S.W.2d 428, 435 (Tex. App.CHouston [14th Dist.] 1999, no pet.). We find a reasonable jury could conclude appellant was aware of the contraband and exercised control over it.

Appellant next challenged whether the evidence is sufficient to prove appellant=s intent to deliver. Intent to deliver also may be shown by circumstantial evidence. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). Quantity of drugs possessed can establish an intent to deliver. See Mack v. State, 859 S.W.2d 526, 527 (Tex. App.CHouston [1st Dist.] 1993, no pet.) (finding 8.9 grams of crack cocaine and no paraphernalia for individual smoking was sufficient); Johnson v. State, 829 S.W.2d 83, 837 (Tex. App.CDallas1992, no pet.) (finding 46 individual baggies of cocaine worth $920 was sufficient). Here, the contraband was positively tested as 20-30 rocks of cocaine weighing 10 grams. Officer Lablanc testified that based on his experience as an officer in the narcotics division that, AAnything one gram or above is for distribution, for sale on the street.@ Further, Officer Lablanc testified that the street value of this evidence is over one thousand dollars, an amount in his opinion that showed Adefinitely for intent to deliver.@ Expert testimony by an experienced police officer may establish the intent to deliver. Mack, 859 S.W.2d at 529 (finding an experienced officer=s opinion that possession of 29 rocks of crack cocaine worth $600 was for purpose of resale).

After viewing the evidence in the light most favorable to the prosecution, we believe that a rational trier of fact could have found the essential elements of the offense of possession with intent to deliver a controlled substance.

Appellant further claims the evidence is factually insufficient to support his conviction for possession of cocaine. In conducting a factual sufficiency review, we only exercise our fact jurisdiction to prevent a clearly wrong and unjust result. See Westbrook, 29 S.W.3d at 112. We do not find evidence in the record that greatly outweighs the evidence supporting the trial court=s judgment. For the reasons discussed above, the jury=s decision was not so contrary to the weight of the evidence as to be clearly wrong and unjust.

We conclude that the State presented legally and factually sufficient evidence to the jury to show that appellant was in possession of cocaine. Appellant=s points of error are overruled.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed July 25, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).