RICHARD FEROLL McCALLUM,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01313-CR
 
RICHARD FEROLL McCALLUM,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEEOF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, BAKER AND KINKEADE
OPINION BY JUSTICE STEWART
JULY 10, 1989
        Richard Feroll McCallum appeals from a conviction of unlawful possession of a controlled substance with intent to deliver. The trial court assessed punishment at ten years' confinement and a payment of $1,000 fine. Appellant's sole contention on appeal is that the evidence was insufficient to support his conviction. We disagree and affirm.
        On July 5, 1985, Officer Mark Moeller and several other officers of the Dallas Police Department executed a narcotics search warrant at an apartment. The warrant was based on a "buy" at the location made by a confidential informant. The front door of the apartment was protected by burglar bars which had a deadbolt. The officers broke open the burglar bars and forced the door open.
        Moeller was the first to enter the apartment, and he immediately went to the bedroom. After finding no one there, and hearing his partner yelling from the kitchen, Moeller went to the kitchen, which was only a "couple of steps away" from the bedroom. Moeller saw appellant on his hands and knees on the floor of the kitchen. Numerous baggies containing white powder were on the floor next to appellant. Appellant was holding a larger baggie which contained several small baggies of white powder. The powder was later analyzed and determined to be cocaine.
        The officers found a total of 306 individually packaged bags of cocaine in the apartment, with a street value of approximately $8,000. Two sizes of baggies were found; one size would sell for $25-$30, the other would sell for $40-$50. The officers also found $1,019 in cash at the location. A passport belonging to appellant was found in the bedroom, and Moeller testified that appellant lived in the apartment.
        Appellant testified and admitted being in the apartment when the police arrived to execute the search warrant, but denied that he lived in the apartment. He also denied knowing that there was cocaine in the apartment and that he was even in the kitchen with the cocaine.
        Appellate review of the sufficiency of the evidence is limited to determining whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). The trial judge, as the trier of facts, was authorized to accept or reject any of the testimony from any witness. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, the court was entitled to disbelieve appellant's self-serving statements that he did not live in the apartment, that he did not know there was cocaine in the apartment, or that he was never in the kitchen with the cocaine.
        In order to establish that appellant unlawfully possessed a controlled substance, the State must prove that appellant exercised care, control and management over the contraband, and that the accused knew that the matter possessed was contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987). The affirmative link can be established by showing additional facts and circumstances which indicate appellant's knowledge and control of the contraband. Id. Among the additional facts that can establish the link are: the contraband was in open or plain view; the contraband was conveniently accessible to appellant; and the place where the contraband was found was enclosed. Id.
        There was evidence that appellant lived in the apartment, that there had been a "buy" by a confidential informant at that apartment, that Moeller found appellant on the kitchen floor surrounded by baggies of cocaine and holding a large baggie containing smaller packets of cocaine, and that appellant's passport was found in the bedroom. The evidence was sufficient to prove that appellant was exercising care, control and management over the cocaine and that he knew the baggies contained cocaine.
        Appellant also contends that there is insufficient evidence to prove that he had possession of the cocaine because it was not clear whether all 306 packets of cocaine seized were found in plain view and because the only evidence linking appellant to the apartment was his passport. However, even if all of the cocaine was not in plain view, and if some of it was found in the kitchen cabinets as appellant contends, there was testimony that these cabinets were within arm's reach of appellant and thus conveniently accessible to him. Further, there was evidence presented linking appellant to the apartment other than his passport: He was the only person inside the locked apartment when the police arrived, and Moeller testified that appellant lived in the apartment.
        Appellant also argues that the evidence fails to establish that he intended to deliver the cocaine he possessed. The element of intent to deliver may be proved beyond a reasonable doubt by circumstantial evidence, such as the quantity of the drug possessed, the manner of packaging, the presence of large amounts of money and evidence of drug transactions. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.--Dallas 1987, no pet). Intent is a question of fact to be determined by the trier of fact from all the facts and circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974).
        Appellant contends that the evidence supporting the finding of intent to deliver is insufficient because it revolves around the quantity of cocaine found and there was no expert testimony to show how much cocaine an average user would purchase and use, and there was no testimony concerning whether appellant was addicted to cocaine or had sold cocaine. The evidence presented to support a finding of intent to deliver was as follows: the aggregate weight of the cocaine seized plus adulterants and dilutants was 87.17 grams; there were 306 individual baggies containing cocaine found, with a street value of $8,000; appellant was discovered holding a large baggie containing smaller baggies of cocaine and he was on the floor surrounded by baggies of cocaine; a large amount of cash was found in the apartment; Moeller testified that each baggie contained one "fix;" and a confidential informant had made a purchase at this apartment. Viewing this evidence in the light most favorable to the verdict, we hold that the evidence is sufficient to support the court's finding that appellant possessed the cocaine with intent to deliver.         The judgment of the trial court is affirmed.
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01313.F
 
 
File Date[01-02-89]
File Name[881313F]