NEHEMIAH J.D. JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

 
AFFIRMED; Opinion Filed June 26, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01127-CR
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NEHEMIAH J.D. JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F05-60136-VK
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MEMORANDUM OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Moseley
        A jury convicted Nehemiah J.D. Jackson of unlawful possession with intent to deliver cocaine in an amount of four or more but less than 200 grams. The jury also found Jackson used or exhibited a deadly weapon during the commission of the offense. Jackson pleaded true to one enhancement paragraph, and the jury assessed punishment at thirty years' imprisonment. In three points of error, Jackson contends the trial court reversibly erred when it added a deadly weapon instruction to the charge after the court had read the charge to the jury, and that the evidence is legally and factually insufficient to support the conviction. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
        Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The trial court must give the jury a written charge setting forth the law applicable to the case before argument begins; the judge is not to express any opinion as to the weight of the evidence, summarize the testimony, discuss the facts of the case, or use any argument that could sway the jury in the charge. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). A special requested charge that is granted should be incorporated in the main charge, and the court should not advise the jury that it is a special charge requested by either party. Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006). Once argument begins, no further charge shall be given the jury except in certain circumstances. See id. art. 36.16. Finally, if the record indicates that the requirements of articles 36.14, 36.15, or 36.16 have been disregarded, the judgment will not be reversed unless the error injured the rights of the defendant. Id. art. 36.19.
        The record indicates the original charge was prepared and the attorneys were given the opportunity to review and make objections or requests before it was read to the jury. No objections were made. The trial court then read the charge to the jury. Thereafter, outside the presence of the jury, the prosecutor stated that during the reading of the charge, she realized the deadly weapon instruction had been omitted and requested that the deadly weapon special issue be included. The trial court granted the State's request over Jackson's objection. After the jury charge was changed, the trial court told the jury that it would read the last page of the charge. The trial court did not mention to the jury that either party had requested a special charge and incorporated the deadly weapon instruction in the main charge.
        Jackson argues that objections can only be made before the charge is read to the jury. However, article 36.16 gives the trial court discretion to give further charges up to the time the argument begins. Tex. Code Crim. Proc. Ann. art. 36.16 (“After the argument begins no further charge shall be given to the jury” except in certain circumstances). Thus, even without the State's request, the trial court had discretion to add the special charge before argument began. Tex. Code Crim. Proc. Ann. art. 36.16. If the trial court has the authority to add the special charge itself before argument, even assuming an improper request by the State in this case, that request has no bearing on whether the trial court erred. Also, even after deliberations have begun, the trial court may correct a jury charge if convinced the charge is erroneous. See Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim. App. 1995) (refusing to reverse appellant's conviction when trial court corrected an erroneous jury charge after jury began deliberation). Thus, the trial court had the authority to amend the jury charge to include the deadly weapon special issue after reading the charge to the jury but before argument began.
        Jackson also argues reading the deadly weapon instruction as the “last page” of the charge was an impermissible comment on the weight of the evidence. However, the trial court made no statement showing bias in the presentation of the deadly weapon issue to the jury. Rather, the trial court simply told the jury “[n]ow, I have the last page to read to you” when the jury had reentered the courtroom. By treating the deadly weapon instruction in this way the trial court properly incorporated it in the main charge as required by article 36.15. Tex. Code Crim. Proc. Ann. art. 36.15. Furthermore, it is clear from the record that the use or exhibition of a firearm was argued extensively at trial, showing the addition of the special charge did not injure Jackson's rights or cause surprise or an unfair trial. See Tex. Code Crim. Proc. Ann. art. 36.19. We resolve Jackson's first issue against him.
        In his second and third issues on appeal, Jackson asserts that the evidence is legally and factually insufficient to support his conviction. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (same); see also Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (same); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (same). We measure the sufficiency of the evidence against the hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (state law measures evidentiary sufficiency against hypothetically correct jury charge encompassing statutory elements of offense as modified by charging instrument); Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
        The State was required to prove beyond a reasonable doubt that Jackson knowingly or intentionally possessed with intent to deliver cocaine in an amount of four or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003). To do so, the State had to prove Jackson 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. We review the sufficiency of the evidence linking the defendant to the contraband. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). Possible links include: (1) whether the accused was present when the drugs were found; (2) whether the drugs were found in proximity to and accessible to the accused; (3) the amount of drugs found; (4) whether the accused possessed weapons or a large amount of cash; (5) whether other contraband or drug paraphernalia were present; and (6) whether the place where the drugs were found was enclosed. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        The jury was instructed it could find Jackson 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.).
        Jackson argues that the evidence was neither legally nor factually sufficient to support his conviction because the evidence amounted at most to conjecture by the police as to Jackson's involvement in selling drugs at the house, or that he was merely present when the police raided the drug house, and this is insufficient to support a conviction. The State responds that the evidence sufficiently linked Jackson to the drugs and the guns, and the linkage is not overcome by Jackson's testimony.
        Police investigated the house at 4726 E. Frio Drive by purchasing drugs through a confidential informant on two occasions before obtaining a search warrant. The record shows the police found 9.2 grams of cocaine (9.6 grams including adulterants) in the house, along with various other evidence of an intent to deliver, such as two handguns, a shotgun, ammunition, plastic baggies used for packaging cocaine for sale, a bag of simulated cocaine on the floor next to Jackson where he was arrested, $1,000 money wrappers, and a CD with a razor blade and cocaine residue on it.         There is also considerable evidence in the record linking Jackson to the house, and therefore, to possession of the drugs: Jackson was arrested in the house when the drugs were found; he fits the description in the search warrant of a man who sold drugs to the confidential informant; there was a football jersey with a dry cleaner's tag that bore Jackson's name in the house; there were numerous documents around the house with Jackson's name and the 4726 E. Frio Drive address on them, indicating Jackson lived at the house and received mail there.
        Having considered all the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found Jackson guilty of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Thus, we decide Jackson's legal sufficiency issue against him.
        Further, considering all the evidence in a neutral light, we cannot say the verdict is clearly wrong or manifestly unjust or is against the great weight and preponderance of the evidence. See Garza, 213 S.W.3d at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex. Crim. App. 2007). Thus, we decide Jackson's factual sufficiency issue against him.
        We affirm the judgment of the trial court.
 
        
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061127f.u05