ESA JOSEPH MARQUIS a/k/a ISSAC JOSEPH MARQUEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed September 29, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00879-CR
............................
ESA JOSEPH MARQUIS a/k/a ISSAC JOSEPH MARQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-94094-MQ
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O P I N I O N
Before Justices Howell, Rowe and Kinkeade
Opinion By Justice Kinkeade
        Esa Joseph Marquis appeals his conviction of possession of cocaine with intent to deliver. Following a bench trial the court assessed punishment at fifty years' confinement. Marquis argues the evidence is insufficient to support his conviction. Because Marquis denied personal drug consumption, the amount of cocaine possessed was sufficient to establish an intent to deliver. We affirm the trial court's judgment.
 
 
FACTS
        Police Officers Wainscott and Guy apprehended Earl Shaw for the theft of a television. Shaw told the officers that the television was given to him by Marquis. Officers Wainscott and Guy drove Shaw to Marquis's apartment to verify Shaw's story. Upon arriving at the apartment, Officers Wainscott and Guy were joined by Officers Alig and Midlam. While the other three officers were questioning Marquis regarding the theft, Shaw told Officer Wainscott that the police could find cocaine in the apartment in an aspirin-type container inside an eight track tape player. After Officer Alig obtained both oral and written consent from Marquis, the police searched his apartment. Officer Guy searched the tape player and found eight capsules of white powder, one of which tested positive for cocaine. All of the capsules were found together in an aspirin tin.
        At trial Marquis stated that he gave police a written consent to search the apartment. Marquis claimed, however, that he told police the apartment was not his. He further denied personally using drugs. Marquis admitted previous convictions for rape, indecency with a child, and two burglaries.
INSUFFICIENT EVIDENCE
        On appeal, Marquis argues that the evidence is insufficient to show that he possessed the cocaine with intent to deliver. When determining whether the evidence is sufficient to support the conviction, we view the evidence in the light most favorable to the verdict to determine whether any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988); Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984), cert denied, 471 U.S. 1009 (1985). The trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 109 S. Ct. 86 (1988). The court may accept or reject any or all of the testimony of the witnesses for either side. Id.
        A conviction for possession of a controlled substance with intent to deliver requires proof of three elements: (1) knowing (2) possession (3) with intent to deliver. Hawkins v. State, 687 S.W.2d 48, 50 (Tex. App.--Dallas 1985, pet. ref'd), citing United States v. Gonzales, 700 F.2d 196, 204 (5th Cir. 1983). Marquis argues that the evidence is insufficient to find the elements of possession with intent to deliver beyond a reasonable doubt either (1) because the quantity of cocaine was insufficient to show intent to deliver or (2) because the facts presented were equally consistent with an inference that the cocaine was possessed for personal consumption as an inference that the cocaine was possessed with an intent to deliver. Marquis does not challenge the sufficiency of the evidence regarding possession, therefore only element three, intent to deliver, needs to be addressed.
INTENT TO DELIVER
 
        Intent to deliver may be inferred from the possession of a large quantity of a controlled substance. Branch v. State, 599 S.W.2d 324, 325 (Tex. Crim. App. 1979). In addition to quantity, intent to deliver may be established by circumstantial evidence such as manner of packaging, presence of large amounts of cash, evidence of other drug transactions, and whether defendant himself is a drug user. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.--Dallas 1987, pet. ref'd). Also probative on the issue of intent to deliver is expert testimony regarding the amount usually possessed for personal consumption. See Pitts v. State, 731 S.W.2d 687, 691-92 (Tex. App.--Houston [1st District] 1987, pet. ref'd).
        Marquis contends that the quantity of white powder verified as cocaine is insufficient to support a finding of intent to deliver. Marquis urges that for the State to raise an inference of intent to deliver it had the burden of proving the contents of the seven untested capsules. Marquis's possession of one capsule of cocaine in light of his denial of personal drug use is sufficient to raise an inference that it was possessed with an intent to deliver.
        Marquis further contends that when the facts are equally consistent with an inference that the drugs were possessed for personal consumption or an inference that the drugs were possessed with an intent to sell a trier of fact can not find the elements of possession with intent to sell beyond a reasonable doubt. Turner v. State, 681 S.W.2d 849, 850 (Tex. App.--Dallas 1984, pet. ref'd). Marquis's reliance on Turner is misplaced. There, the facts were consistent with either an inference that the drugs had been purchased for personal use or an inference of drug possession with intent to deliver. However, the State failed to sustain its burden of proving that Turner was not a drug user. The court therefore held that the two inferences were equally reasonable, accordingly, a trier of fact could not find the elements of intent to deliver beyond a reasonable doubt. Here, however, the facts do not raise two equal inferences. Marquis refuted the inference that the cocaine had been purchased for personal use by his own denial of personal drug consumption. Thus, just as quantity raised an inference that the cocaine had been purchased with intent to deliver, Marquis's denial of personal drug consumption raises a like inference.
        The facts in this case are more analogous to those found in Hawkins v. State, 687 S.W.2d 48, 49-50. Here, as in Hawkins, evidence was offered by the State that supported the inference of intent to deliver and refuted the inference of possession for personal use, so that the trial judge could find the essential elements of the offense beyond a reasonable doubt. We hold that the evidence here is sufficient to support the trial court's finding of intent to deliver; consequently, we affirm.
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
880879OP.UPF
 
 
 
File Date[10-05-89]
File Name[880879OP]