Fredrick Paul West v. The State of Texas--Appeal from Crim Dist Ct 4 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-122-CR

FREDRICK PAUL WEST,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 4

Dallas County, Texas

Trial Court # F92-71710-K

O P I N I O N

Frederick Paul West was indicted for the offense of possession with the intent to deliver cocaine, less than twenty-eight grams. See Tex. Health & Safety Code Ann. 481.102, 481.112 (Vernon 1992). He pleaded not guilty and waived his right to a jury. The court found West guilty and sentenced him to ten years' imprisonment.

West's sole point of error is that the evidence was insufficient to sustain his conviction. We will affirm the judgment.

Armando Perez, an officer with the Dallas Police Department, testified that on November 5, 1992, he was working with an ATF task force investigating armed criminals involved in narcotics. On that day he assisted in executing a search warrant at 1500 Annex. West was named in the search warrant.

Perez testified that the house at 1500 Annex was a duplex, divided into living quarters upstairs and downstairs. The search warrant was for the upstairs which, according to Perez, was divided into three rooms off a long hallway a living area and two bedrooms. Perez secured the back bedroom. He found West's driver's license and some of his personal papers on top of the dresser. Although the license and documents contained West's name and address, none had the 1500 Annex address.

Perez then searched a small wooden closet in the bedroom where he found a black leather jacket that appeared to be West's size. The jacket contained fifty-six small baggies of cocaine. Perez testified that West told him that the last bedroom upstairs the room where the cocaine was located was his bedroom.

Don Brougher, an ATF agent, testified that he participated in executing the search warrant. According to Brougher, the upstairs had four rooms off a long hallway. The first room was a "living area" with a stereo and hot plate. A woman was found in the first room. The second room contained a couch and bed. West and a female companion, Brenda Dotson, were found there. The third room, where the drugs were located, was also a bedroom. To Brougher's knowledge, no one was found in the third room. In the fourth room, also a bedroom, the officers found another man. Brougher testified that the owner of the duplex, Edna May Powell, was "incoherent" and could not provide any information on who rented the rooms upstairs.

West took the stand on his own behalf. He testified that he was working for Powell, running errands and tending to the duplex. He stated that the upstairs of the duplex had four bedrooms. The first, third and fourth rooms were rented. West testified that he would use the second bedroom when he was working around the duplex. The day the officers executed the search warrant, West and Dotson were in the second bedroom.

According to West, a man named Lupe Hernandez rented the third bedroom where the drugs were found. West denied that his personal papers or driver's license were on the dresser in the third bedroom. However, West testified that he had a briefcase containing personal belongings. Shortly before the police arrived, according to West, Hernandez had found the briefcase and moved it into his bedroom. Both the briefcase and Hernandez's bedroom were locked. West testified that he did not have the key to Hernandez's bedroom.

Dotson testified that she and West were romantically involved at the time of the incident. She had visited West several times at the duplex but had never been in the third bedroom. She testified that West did own a short, black jacket.

In reviewing a claim of insufficient evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Review under the Jackson standard is the same whether the factfinder is the judge or a jury. Matson, 819 S.W.2d at 843. In a trial before the court, the trial judge is the sole judge of the credibility of the witnesses and may accept or reject all or any part of the testimony given by any State or defense witness. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. [Panel Op.] 1978).

A defendant must exercise care, custody, control, and management over illicit drugs, knowing them to be drugs, before he is guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). If the defendant is not in sole possession of the premises where drugs are found, the state must prove an affirmative link between the contraband and the defendant to establish his possession. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). An affirmative link is established by facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and that he exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389. The parties' briefs argue the existence or absence of sufficient "affirmative links."

The officers, in executing a search warrant which specifically named West, found West's driver's license and personal papers in the bedroom where the drugs were found. In the small closet, the officers found a black leather jacket, which was approximately West's size, with fifty-six baggies containing cocaine. Dotson testified that West owned a short, black jacket. Officer Perez testified that West admitted that the bedroom where the drugs were located was his.

Reviewing the evidence in the light most favorable to the verdict, with the understanding that the court was the sole judge of the credibility of the witnesses and could accept or reject all or any part of the testimony given by any State or defense witness, we believe a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Johnson, 571 S.W.2d at 173.

We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 16, 1994

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