BOBBY FERNANDEZ AUSTIN, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed September 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00947-CR
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BOBBY FERNANDEZ AUSTIN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-56198-JW
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OPINION
Before Justices Moseley, O'Neill, and FitzGerald
Opinion By Justice O'Neill
        A jury convicted Bobby Fernandez Austin, Jr. of possession with intent to deliver cocaine in an amount of one gram or more, but less than four grams and made an affirmative deadly weapon finding. The trial court found one enhancement paragraph true and assessed punishment at twenty- five years imprisonment and a $2500 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
 
        On August 18, 2005, several Dallas police officers investigated complaints about drugs being sold from an apartment on Kit Lane in Richardson. Undercover narcotics officers Jay Darst and Bryan Gibbs made drug buys from two individuals that night in separate transactions. Each person led them to the same apartment and made them wait outside while the person went inside the apartment and came back out with the drugs. Both sellers told Darst and Gibbs they could not go inside the apartment because the men inside were armed and violent and “would rob white guys.” A team of uniformed backup officers arrested the sellers after each transaction. At about 10:30 p.m., Darst and Gibbs decided to try to make a drug buy from the men inside the apartment. They walked to the second-floor apartment and knocked on the door. The backup officers waited out of sight on a lower level. Gibbs stood in front of the door; Darst stood to the right of Gibbs. Although Darst heard movement from inside the apartment, no one answered the door. After knocking several times, Gibbs was about to turn around and leave when the door abruptly opened. Gibbs testified appellant stood in the doorway holding a gun in his right hand at waist-level. Gibbs put his hands in the air and backed away from the door. Another officer immediately ran up the stairs between Gibbs and Darst and grabbed appellant. The gun fell to the floor. Gibbs saw a second person, later identified as Derrick Wilkins, run towards the back of the apartment. The backup officers entered the apartment and chased appellant and Wilkins to a back bedroom, where they were apprehended. The officers found a second handgun in Wilkins's waistband.
        Darst testified that when the apartment door opened, he saw appellant and Wilkins standing there. Darst looked into the apartment and saw a coffee table with packages of marijuana on it in plain view. When Darst noticed that Gibbs had put his hands in the air, he looked down and saw a gun in appellant's hand. One of the backup officers ran up the stairs and grabbed appellant. Appellant tried to run to the back of the apartment, dragging the officer with him. The remaining backup officers ran into the apartment and helped apprehend appellant and Wilkins. Darst testified Wilkins said he stayed in the apartment, then gave consent to search the premises. During their search, officers found marijuana, cocaine, and drug paraphernalia, including bags of marijuana on the living room coffee table and in one bedroom, crack cocaine and a razor blade in plain view on a plate in the kitchen, empty plastic baggies in the living room and kitchen, surveillance cameras and a monitor, and two safes. Later analysis showed the cocaine totaled 2.8 grams. One of the safes contained $1831 in cash in various denominations and the other contained Wilkins's identification, an apartment key, a digital scale, and drug packaging.
        Sergeant Jack Meshack testified he provided security backup for Darst and Gibbs that night. While Darst and Gibbs went to the second-floor apartment, he and other uniformed officers waited on a landing down below. Meshack testified he was about to tell his team that no one was answering the door when he saw Gibbs raise his hands and lean away from the door. Meshack saw appellant standing in the doorway with a handgun. Meshack, who was wearing a bullet-resistent vest, raced up eight steps to the top, reached through the open doorway, and grabbed appellant in the shoulder area. Wilkins, who was standing behind appellant, slammed the door on Meshack's arm and shoulder. Meshack held onto appellant's shirt as he hit the door, opening it wider. Wilkins backed away from the door and ran towards a back bedroom. After appellant's gun dropped to the floor, Meshack dragged appellant towards a back bedroom in pursuit of Wilkins. Other officers entered the apartment and helped arrest appellant and Wilkins. Meshack testified that when one of the officers searched appellant, he found a key to the apartment's front door in appellant's pocket.
        Detective David Potts testified as a narcotics expert. Potts testified crack cocaine is usually cut into smaller pieces with a razor blade. One-tenth of a gram of crack cocaine represents one “hit” or individual use. The cocaine found in the apartment was being cut into individual uses that were ten or twenty-dollar amounts. The cocaine found represented twenty-eight individual uses, was meant for distribution and not personal use, and would yield about $280. Potts testified the $1831 in various denominations found in a safe represented prior drug sales that day, and indicated there was more cocaine in the apartment prior to the officers making entry.
        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 one gram or more, but less than four grams. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (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 nothing links him to the drugs found in the apartment. Appellant asserts there is no evidence he possessed the drugs, intended to deliver them, or owned or rented the apartment where the drugs were found. Appellant also argues he answered the door with a gun in his hand to protect himself from possible home invaders and not because he possessed drugs with the intent to deliver them. The State respnds that the evidence is legally and factually sufficient to prove appellant was a party to the offense.
        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. Three officers testified appellant and Wilkins were the only individuals inside the apartment where cocaine was found in plain view in the kitchen. Both appellant and Wilkins had firearms. Appellant held a gun in his hand when he opened the front door of the apartment, and Wilkins had a gun in his waistband when he was apprehended. The officers found a key to the front door of the apartment in appellant's pocket, and found a large amount of cash and other drug paraphernalia inside the apartment, along with a large amount of marijuana. All of the drugs and paraphernalia were found in close proximity and accessible to appellant, and appellant attempted to flee from the officers.
        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 the 237.8 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.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060947F.U05