LACOURTNEY ANTWINE MOSLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed February 28, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00747-CR
............................
LACOURTNEY ANTWINE MOSLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F04-51711-UH
.............................................................
OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice FitzGerald
        LaCourtney Antwine Mosley waived a jury and pleaded not guilty to possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. After finding appellant guilty, the trial court assessed punishment at ten years' imprisonment, probated for eight years. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
 
        On May 5, 2004, narcotics officers executed a search warrant on a suspected drug house. The warrant named two primary suspects, “Vincent” and “Kelvin” a/k/a Kevin, and other suspects in the house whose names were unknown at the time officers sought the warrant. Officers had purchased drugs from individuals inside the house on at least two occasions and knew the house was heavily barricaded. There were bars on the windows and doors and a metal cage on the interior of the front door. When the officers executed the search warrant, they threw a distraction device through the front window. Detective David Potts testified he entered the living room first. Potts saw a man later identified as Kevin Standfield in the living room near a couch. Potts also saw appellant standing in a recessed area near a coat closet in the living room. Standfield ran into the kitchen. Potts heard his partner yell “shotgun” as a second distraction device was deployed. Potts pursued Standfield into the kitchen. There were five other people in the kitchen. When Potts apprehended Standfield, he found a key to the front door of the house on a shoestring around Standfield's neck.
        Potts found drugs and weapons inside the house, including a .38-caliber pistol on the living room couch, the shotgun appellant was holding, loose cocaine and marijuana on the kitchen counter in plain view, and cocaine inside the cassette deck of a portable radio in the living room. Lab analysis showed the cocaine found inside the house totaled 6.8 grams.
        Officer Joe Morin entered the house a few steps behind Potts. Morin testified that when he stepped into the living room, he saw appellant standing between the living room and kitchen. Appellant was holding a shotgun in an upright position. Morin threw a distraction device towards appellant's feet and yelled “shotgun” several times. Appellant tried to “take cover” in a recessed part of the wall by a closet near the front door. Morin “spun” appellant to the ground and grabbed the shotgun. The shotgun contained seven live rounds, with one in the chamber.
        Co-defendant Kevin Standfield testified on appellant's behalf. Standfield pleaded guilty to possession with intent to deliver cocaine. Standfield testified he lived in the house with a man named Alfonso Arnes. Standfield admitted he sold drugs from the house, and that anyone who came to the house knew drugs were inside. According to Standfield, appellant came to the house and said he was there to sell a shotgun to Vincent, but Vincent was not there at the time. Appellant was inside the house about thirty minutes before the police came inside. Standfield testified appellant neither sold drugs from the house nor provided protection to the house.
        Appellant stipulated that the cocaine found inside the house totaled 6.8 grams and that whoever was in possession of the cocaine did so with intent to deliver. Appellant testified he met a man named Vincent earlier that day at a service station. During their conversation, appellant mentioned he had a shotgun to sell. Vincent told appellant to come to the house later that day. When appellant went to the house with the shotgun, Vincent was not there. Appellant testified he entered the house, walked to the back room and unwrapped the shotgun, then walked back to the living room. Police officers abruptly came through the front door. Appellant denied he was in the house to buy, sell, or protect the drugs. Appellant testified he had owned the shotgun for two years, did not know if the shotgun was loaded when he went inside the house to sell it, and was inside the house no longer than ten to fifteen minutes before the officers arrived.
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 reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 404, 415 (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 four grams or more, but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (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). However, 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. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because nothing affirmatively links him to the cocaine. Appellant asserts he had no knowledge that the concaine existed, the cocaine was not accessible to him, he did not live at the house, and he was only at the house to sell his shotgun and not to protect the house. The State responds that the evidence is legally and factually sufficient to support appellant's conviction.
        When officers executed a search warrant on a known drug house, appellant was in the living room holding a loaded shotgun. Appellant tried to “take cover” after the officers entered the living room. Over six grams of cocaine was found in plain view on a kitchen counter and in a cassette deck of a portable radio in the living room, Marijuana was also found in plain view on the kitchen counter. In addition to the loaded shotgun, officers found a .38-caliber pistol on a couch in the living room.
        There was conflicting testimony regarding appellant's role in the house. Co-defendant Standfield testified appellant was not selling drugs from the house or providing protection to the house, and that appellant was inside the house for thirty minutes before the police arrived. However, Standfield also testified that anyone who came in the house knew there were drugs inside. Appellant testified he only went to the house to sell his shotgun, he did not know whether the gun was loaded, and he was inside the house for only about fifteen minutes before the police arrived.
        It was the fact-finder's function to resolve any conflicts in the evidence. See Harvey, 135 S.W.3d at 717. The fact-finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). We may not substitute our own determination for that of the fact-finder. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 8.
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for possession with intent to deliver cocaine. See Watson, 204 S.W.3d at 415; Evans, 202 S.W.3d at 166; Lane, 151 S.W.3d at 191-92. We resolve appellant's issues against him.         We affirm the trial court's judgment.
 
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060747F.U05