MARTIN CHAVEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed September 10, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00482-CR
............................
MARTIN CHAVEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-21380-MH
.............................................................
OPINION
Before Justices Moseley, O'Neill, and FitzGerald
Opinion By Justice Moseley
        A jury convicted Martin Chavez of unlawful possession with intent to deliver cocaine in an amount of 400 grams or more. The trial court assessed punishment at twenty-five years' imprisonment and a $5000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
 
        Detective Victor Rodriguez, an undercover narcotics officer with the Dallas County Sheriff's Department, received a telephone call from appellant on February 3, 2005 asking if he wanted to buy cocaine. Rodriguez had been introduced to appellant several months previously by a confidential informant. Rodriguez met appellant at a restaurant later that day to continue negotiations. Appellant brought Maria Scott to the meeting with him, stating she was “like a girlfriend type.” Appellant suggested Rodriguez pay $17,000 per kilogram for twenty-five kilograms of cocaine. Rodriguez told appellant he wanted to pay $16,500 per kilogram. Maria also joined in the negotiations, stating they would bring twenty-five kilograms at a price of $17,000 per kilogram. When they could not agree on the price, appellant and Maria left the restaurant.
        Rodriguez testified he met appellant and Maria in the parking lot of a different restaurant the next day. Appellant drove a black truck. When he parked next to Rodriguez's vehicle, Rodriguez got out of his car and talked with appellant and Maria about the price again. Rodriguez testified he was standing at the passenger-side window. After settling on a price, appellant handed Maria a small “sample,” and Maria handed the baggie to Rodriguez. Later analysis showed the bag contained one gram of cocaine. On February 8, 2005, Rodriguez met with appellant alone at a restaurant. They discussed the upcoming transaction. Later that same day, Rodriguez met with both appellant and Maria at Bachman Lake. Both appellant and Maria negotiated a deal to sell Rodriguez twenty-five kilograms of cocaine at $16,500 per kilogram. They planned to complete the transaction in the parking lot of a hotel the next day.
        Rodriguez testified that on February 9, 2005, appellant met him in the hotel parking lot to complete the transaction. Appellant and Maria remained inside their truck while Rodriguez stood at the passenger-side door near Maria. Rodriguez asked to see the drugs first. Rodriguez saw a detergent box sitting on the passenger-side floorboard near Maria's legs. Maria picked up the box, put it on her lap, and opened the lid. Rodriguez saw several “bricks” of cocaine inside the box that totaled about five kilograms. Both appellant and Maria told Rodriguez they could get the remaining twenty kilograms that Rodriguez wanted after they exchanged the money for the five kilograms. Both appellant and Maria negotiated a price of $80,000 for the cocaine inside the box. When Rodriguez asked them if they wanted to go to his hotel room to count the money, they said to bring the money to the parking lot and they would count it while inside their vehicle. Rodriguez used his cellular telephone to call another officer with a prearranged arrest signal. Several officers entered the parking lot and arrested appellant, Maria, and Rodriguez.
        Detective Joseph Swanson, who helped provide surveillance for Rodriguez, testified he was about fifty yards away from Rodriguez in the parking lot of a restaurant when he saw two people pull up in a black truck. Rodriguez got out of his vehicle and stood outside with the driver of the truck. Swanson testified he was too far away to identify the driver of the truck or see the driver or passenger hand anything to Rodriguez. After the driver and passenger in the truck left the scene, all of the surveillance officers met back at their office. Swanson testified the “sample” given to Rodriguez by the driver of the truck field-tested positive for cocaine.
        Officer Dan Scheel, who provided surveillance for Rodriguez at the hotel, testified ten to fifteen other officers were in the parking lot on February 9, 2005. Scheel saw appellant drive into the parking lot in a black truck. Maria was in the front passenger seat. Rodriguez came outside the hotel to meet appellant and Maria. At one point, Rodriguez called a sergeant by telephone with a prearranged signal to alert them that he had seen the drugs. The sergeant notified the surveillance team by police radio, and they moved in to arrest appellant, Maria, and Rodriguez. Scheel testified they arrested Rodriguez to protect his undercover status. After appellant, Maria, and Rodriguez were taken into custody, Scheel saw a detergent box that contained cocaine on the passenger side of the truck where Maria had been sitting.
 
        Andrew Moore, a chemist for the Southwestern Institute of Forensic Sciences, analyzed the cocaine found inside the detergent box. Moore testified there were eight “bricks” or packages of cocaine inside the box that totaled 4.90 kilograms. Anthony Gipson, a Dallas narcotics detective, testified as an expert on drug trafficking. Gipson testified cocaine is generally sold in increments of one-tenth of a gram for ten dollars on the streets. One kilogram equals about 2.2 pounds, and there are 10,000 individual one-tenth-gram increments in one kilogram, with a potential street value of about $100,000. Gipson testified the cocaine found inside the detergent box represented about $500,000 if sold individually. If a person purchased the cocaine in bulk in one-kilogram or half- kilogram packages, it would cost from $15,500 to $17,000 per package. Gipson testified that although the person who makes the introductions between the buyer and seller is called the “middle man,” he is still very much a part of the entire transaction. It is not uncommon to deal with more than one individual on a drug transaction involving large quantities. Gipson also testified a person would possess multiple kilograms of cocaine for resale and distribution and not for personal use.
        Appellant did not testify or present any evidence at trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed with intent to deliver cocaine in an amount of 400 grams or more. See Tex. Health & Safety Code Ann. § 481.112(a), (f) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Affirmative links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). No set formula of facts exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Possible affirmative links include: (1) whether the accused was present when the drugs were found, (2) whether the drugs were in plain view, (3) whether the drugs were found in proximity to and accessible to the accused, (4) whether the accused attempted to flee, (5) the amount of drugs found, and (6) whether the accused possessed weapons or a large amount of cash. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        The jury was instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because he was only the middle man setting up the drug buy but never possessed the drugs. Appellant asserts he was merely present at the scene where the drugs were found, did not have any weapons or paraphernalia, and did not attempt to flee. Appellant argues that because Maria actually possessed the cocaine and showed it to the officer, the evidence is legally and factually insufficient to show appellant had care, custody, and control over the cocaine. The State responds that the evidence is legally and factually sufficient to support the jury's verdict.
        The jury was charged it could find appellant guilty of possession with intent to deliver cocaine as a principal, a party to the offense, or not guilty. The record shows appellant was a party to the offense. Rodriguez testified appellant called him about selling the cocaine, appellant introduced Rodriguez to Maria, both appellant and Maria negotiated the price for the cocaine, and both appellant and Maria agreed on the date, time, and location of the transaction. The cocaine was inside a detergent box in appellant's truck. Although the box was on the floor near Maria's legs, it was in close proximity and accessible to appellant.
        We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant exercised actual care, custody, and control of over 400 grams of cocaine, and is legally and factually sufficient to support the conviction. See Watson, 204 S.W.3d at 415; Evans, 202 S.W.3d at 166; Lane, 151 S.W.3d at 191-92. We overrule appellant's points of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060482f.u05