CURTIS RAY GOVAN, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM Opinion Filed December 13, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01430-CR
............................
CURTIS RAY GOVAN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F88-81280-RK
.................................................................
O P I N I O N
Before Chief Justice Enoch and Justices Stewart and Kinkeade
Opinion By Justice Kinkeade
        Curtis Ray Govan, Jr., appeals his conviction of possession of cocaine with an intent to deliver. Following a jury trial, the jury assessed punishment at eight years' confinement and a $4,000 fine. Govan argues that the trial court erred in not limiting the jury charge to the lesser included offense of possession of cocaine. Because the State presented evidence sufficient to show that Govan possessed the cocaine with intent to deliver, we overrule Govan's sole point of error. We affirm the trial court's judgment.
 
Statement of Facts
        On April 18, 1988, Officer John Phipps and his partner, Officer Rocky Stevens, stopped to investigate an unreadable inspection sticker on a car driven by Govan. Govan got out of his car and walked toward the rear of the car to speak with the officers. Govan's father, Curtis R. Govan, Sr., remained seated in the passenger seat.
        While Officer Stevens spoke with Govan, Officer Phipps testified that he approached the driver's side of the vehicle to look at the inspection sticker and asked Govan's father to get out of the car. When he looked into the car, Officer Phipps stated that he saw in plain view a clear plastic baggie containing individually wrapped rocks of crack cocaine. The baggie lay in the slot normally occupied by a radio. Without indicating to Govan or his father what he had seen, Officer Phipps returned to the patrol car and ran a computer check on both Govan and his father. The check revealed that Govan's father had an outstanding warrant for an unpaid traffic ticket. Officer Phipps stated that he then reapproached Govan's car, opened the door, reached in, and retrieved the cocaine. Later, as Officer Phipps walked back to the rear of the car, he said that he found another baggie in the rear bumper of the car, containing individually packaged rocks of crack cocaine. Officer Phipps stated that Officer Stevens told him that Govan had thrown the baggie out of his pocket. The officers placed Govan under arrest for possession of cocaine with intent to deliver and his father under arrest pursuant to the outstanding warrant. Officer Phipps further testified that Govan told him that he possessed the cocaine for personal use and that he was unemployed. Officer Phipps stated that Govan had $401.00 on his person when jail personnel inventoried his possessions. Finally, Officer Phipps stated that in his experience an average user of crack cocaine usually possessed only three to four rocks at a time.
        Officer Stevens testified that he saw Govan reach into his pocket and throw the smaller baggie containing seven rocks of crack cocaine into the bumper. He further stated that he had independently observed the larger baggie containing thirty-nine rocks of cocaine in plain view within the car prior to discussing the drugs with Officer Phipps. Also, Officer Stevens testified that he and his partner found no implements indicative of crack cocaine use in the car and that Govan did not appear to be under the influence of drugs or alcohol at the time of his arrest. Finally, Officer Stevens said that in his experience an average user of crack cocaine usually possessed only two to four rocks at a time.
        Investigator Frank Perez, an undercover narcotics officer and the investigator assigned to the instant case, stated that in his experience a crack cocaine user only possessed one rock of cocaine at a time. He said that a heavy crack cocaine user used approximately three rocks a day, and that possession of forty-six rocks indicated a large scale drug dealer. He also stated that the normal user could only use about three rocks a day without killing himself. Further, Investigator Perez testified that the size of the rocks involved in the instant case sold for about twenty dollars each and that Govan's arrest took place in a neighborhood known for selling crack.
        Govan's father testified that his son lived with him and that he never saw him use crack cocaine. Govan's father stated that his son had just purchased the car and that he had not seen any drugs in the car. Further, he said the money that Govan possessed came from his mother's income tax refund. Govan's father recognized neither Officer Phipps nor Officer Stevens as the policemen who arrested him.
        Govan testified that he had hidden his crack cocaine use from his father. He also stated that he smoked eleven to twelve crack rocks per day and that he possessed the rocks found for personal use. Further, Govan stated that he obtained the money found on him by pawning two gold necklaces. Govan further explained the absence of any smoking implements by stating that he did not smoke cocaine in a pipe, he smoked the cocaine in marijuana, but that the cops just overlooked the marijuana in the back seat when they searched the car.
Sufficiency of the Evidence
        In his sole point of error, Govan contends that the trial court erred by not limiting the jury charge to the lesser included offense of possession of cocaine, thus, eliminating the original charge of possession of cocaine with intent to deliver. Govan argues that the evidence is insufficient to support the essential elements of intent to deliver. When determining whether the evidence sufficiently supports the conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational 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). As the trier of the facts, the jury judges the credibility of the witnesses and determines the weight to be given to their testimony and may freely accept or reject the testimony of any witness. Thomas v. State, 605 S.W.2d 290, 292 (Tex. Crim. App. 1980).
        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). Govan argues that the evidence is insufficient to find the elements of possession with intent to deliver beyond a reasonable doubt because (1) Govan possessed an insufficient amount of cocaine to show an intent to deliver, (2) Govan possessed an insufficient amount of money to show an intent to deliver, or (3) that the facts created equal inferences that Govan possessed the cocaine for personal consumption or that Govan possessed the cocaine with an intent to deliver.
Intent to Deliver
        Possession of a large quantity of a controlled substance raises an inference of intent to deliver. Branch v. State, 599 S.W.2d 324, 325 (Tex. Crim. App. 1979). Intent to deliver may also be established by circumstantial evidence such as manner of packaging, presence of large amounts of cash, evidence of other drug transactions, and whether the defendant personally uses drugs. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.--Dallas 1987, pet. ref'd). Expert testimony regarding the amount of drugs usually possessed for personal consumption may also serve as evidence of intent to deliver. See Pitts v. State, 731 S.W.2d 687, 691-92 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd).
        Govan contends that when the facts presented raise equal inferences that Govan possessed the cocaine for personal consumption or that Govan possessed the cocaine with an intent to deliver, the trier of fact cannot find the elements of possession with intent to deliver beyond a reasonable doubt. Turner v. State, 681 S.W.2d 849, 850 (Tex. App.--Dallas 1984, pet. ref'd). Govan argues that the amount of drugs and money Govan possessed raised these equal inferences; therefore, the jury could not find the elements of possession with intent to deliver beyond a reasonable doubt.
        Govan mistakenly relies on Turner. In Turner, the facts presented raised equal inferences that Turner had purchased the drugs for personal use or that he possessed the drugs with intent to deliver. The State, in Turner, however, failed to present any evidence to rebut the inference that Turner purchased the drugs for personal consumption. The court, therefore, held that because the evidence presented raised two equally reasonable inferences without any evidence of rebuttal, the trier of fact could not find the elements of intent to deliver beyond a reasonable doubt.
        In the present case, however, although the facts presented raised two equal inferences, the State presented evidence to refute the hypothesis that Govan possessed the cocaine for personal use. The State's evidence in the instant case included: (1) a large quantity of drugs packaged in a manner normally used when sold; (2) a fairly large amount of cash found on Govan coupled with his admission of unemployment, (3) that the arrest took place in a neighborhood known for selling crack; (4) expert testimony from three police officers that a typical user buys only a small number of rocks at a time and normally could not afford to buy forty-six rocks at an approximate street value of $920.00; (5) expert testimony that the normal user could only use about three rocks a day without killing himself; (6) absence of drug paraphernalia; and (7) expert testimony that at the time of his arrest Govan did not appear to be under the influence of cocaine. Because the jury, as sole judge of the credibility of the witnesses, could accept or reject any or all of the testimony given by the State or defense witnesses, we find that the jury could find that the State refuted the inference of possession of cocaine for personal use and established possession with an intent to deliver beyond a reasonable doubt. We affirm the trial court's judgment.
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
881430.U05
 
 
File Date[12-13-89]
File Name[881430]