DEVARIAN BIRDWELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01408-CR
No. 05-06-01409-CR
No. 05-06-01410-CR
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DEVARIAN BIRDWELL, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F05-54213-LIY, F05-54214-NIY, F05-54215-LUIY
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OPINION
 
Before Justices Whittington, Moseley, and Bridges
Opinion By Justice Bridges
 
 
        Devarian Birdwell appeals his convictions for possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams in cause number 05-06-01408-CR, possession of a useable quantity of marijuana in an amount of five pounds or less but more than four ounces in cause number 05-06-01409-CR, and unlawful possession of a firearm by a felon in cause number 05-06-01410-CR. A jury convicted appellant of each offense, and the trial court sentenced him to twenty years' confinement in cause number 05-06-01408-CR and ten years' confinement in cause numbers 05-06-01409-CR and 05-06-01410-CR. In three points of error, appellant argues the evidence is legally and factually insufficient to support his convictions, and the trial court erred in overruling his objections to the prosecutor's statements regarding the definition of “possession” during voir dire. We affirm the trial court's judgments.
        Dallas police officer Scott Shepherd testified he received a citizen complaint that drugs were being sold at apartment number 108 at an apartment complex in Dallas. Shepherd sent his confidential informant to apartment 108, but the person who answered the door took the informant to apartment 289. The informant returned to apartment 289 a second time and again purchased drugs. Based on this information, Shepherd got a search warrant for apartment 289. On June 29, 2005, officers, including Shepherd, made a “dynamic entry” at apartment 289. Inside the door, Shepherd saw appellant pull a handgun from his waistband and drop it on the floor. Shepherd tossed a diversionary device, a “flash-bang,” inside the apartment and saw appellant run down a hallway and enter the one bedroom. After the flash-bang went off, other officers went inside the apartment, put the other people in the apartment on the ground, and handcuffed them.
        At the same time, Shepherd and other officers were yelling, “Runner” when they saw appellant run so that officers on the perimeter of the apartment could watch the windows in case anybody was climbing out. The officers were “flowing over the top of” appellant's dropped weapon, and the dropped weapon was no longer considered a major threat because it was possible there were other guns inside the apartment. Although there were seven people in the apartment when police entered, all of them were subdued within thirty seconds. Appellant was found in the bedroom and handcuffed there before being brought out of the apartment. Shepherd saw appellant and recognized him as the man who pulled out a pistol, dropped it on the ground, and ran back to the bedroom. On a table in the apartment, officers found loose marijuana being packaged into baggies and crack cocaine. On a shelf in the kitchen was a plate with loose crack cocaine on it and other small baggies containing crack cocaine.         Appellant testified he signed the lease on apartment 289 in May 2005. Prior to that, appellant had been living in a different apartment with his girlfriend, Tina Matthews. On the day he was arrested, appellant came to the apartment at approximately 7:00 a.m. and saw Nathaniel Diggs, Larry Williams, and Billy Jean Blake sleeping on the floor, the couch, and the bedroom. Appellant had previously given Diggs a key to the apartment so that Diggs could check on the apartment because someone had broken into the apartment and stolen a television and some clothes. Appellant talked to Matthews on the telephone for approximately thirty minutes, lay down on his bed, and went to sleep. Appellant was asleep until the police “came off in there and put their knee in my back and handcuffed me.” Appellant testified he was not the man holding a gun and standing by the door when police arrived, and he did not know who the man was because he was asleep.
        According to appellant, there were no drugs in the apartment when he came home on the day he was arrested. Appellant had been spending most of his time when he was not working staying either with Matthews or another friend. Diggs was married, and he brought “lady friends” to the apartment. Diggs stayed at the apartment more than appellant. Appellant testified he paid $450 a month in rent on the apartment, plus a light bill, and $360 a month in car payments. When asked how he paid his bills after he lost his job, appellant testified he only paid rent once at the beginning of June, he had stopped making his car payment, and he was arrested on June 29. Appellant testified he did not know anything about drugs being in the apartment until he got to the narcotics division. Police asked appellant where he got the drugs, and appellant said he did not know. According to appellant, police told him, “You know there was a gun, we are going to put the gun on you, if you don't tell me where they get the drugs from.” Appellant was convicted of each of the charged offenses, and these appeals followed.
        In his first and second points of error, appellant argues the evidence is legally and factually insufficient to show he knowingly or intentionally possessed cocaine, marijuana, and a firearm. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. 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 possessed with intent to deliver cocaine in an amount of four grams or more but less than 200 grams and a useable quantity of marijuana in an amount of five pounds or less but more than four ounces. See Tex. Health & Safety Code Ann. §§ 481.112(a), (d); 481.121(a), (b)(3) (Vernon 2003). Possession means “actual care, custody, control, or management.” Id. § 481.002(38) (Vernon Supp. 2007). The elements of possession may be proved by circumstantial evidence. Smith v. State, 56 S.W.3d 739, 746 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Without an admission by the accused, due to its subjective nature, the knowledge element of the crime may be inferred. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Smith, 56 S.W.3d at 746. Under section 46.04(a)(1) of the penal code, a person who has been convicted of a felony commits an offense if he possesses a firearm after conviction and before the fifth anniversary of his release from confinement following conviction of the felony or his release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2007).
        Because appellant was not in exclusive possession of the premises where the contraband was found, the State must affirmatively link appellant to the contraband. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: (1) the accused's proximity to and accessibility to the contraband; (2) the quantity of the contraband found; (3) whether the contraband was in plain view; (4) whether the accused was present at the time of the search; and (5) whether the conduct of the accused with respect to the drugs indicates his knowledge and control. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.); Pettigrew v. State, 908 S.W.2d 563, 571 (Tex. App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except the accused's guilt. See Brown, 911 S.W.2d at 748.
        Here, appellant testified he rented the apartment and gave Diggs a key so that Diggs could check on the apartment when appellant was not there. The apartment had two twin mattresses, without sheets or pillows, lying on the floor in the back bedroom. The front room contained a folding table, couch, and television with a video game console. There were no dishes in the kitchen and no food in the refrigerator. Dallas police detective David Potts testified that, in an apartment where drugs were being sold, there would typically be very little furniture, “usually Nintendo games,” and very little food or clothing.
        Shepherd testified an informant purchased drugs at appellant's apartment twice before the search warrant was executed. Inside appellant's apartment, Shepherd saw appellant pull a gun from his waistband and drop it on the floor before running to his bedroom where he was arrested. Also inside the apartment were marijuana and cocaine being packaged for sale. During appellant's testimony, he identified drugs seized from his apartment as crack cocaine and marijuana and acknowledged that whoever was packaging these drugs was packaging them for sale. Appellant does not challenge the fact that he testified he had previously been convicted of burglary of a building, possession of cocaine, and unlawful possession of a firearm by a felon.
        We conclude the jury was free to believe Shepherd's testimony and find that appellant knowingly possessed marijuana and cocaine and a firearm in his apartment. See McGoldrick, 682 S.W.2d at 578; Smith, 56 S.W.3d at 746. Under these circumstances, the evidence was legally and factually sufficient to show appellant knowingly possessed the cocaine, marijuana, and firearm. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415.
        In his third point of error, appellant argues the trial court erred by overruling his objection to the State's comments during voir dire regarding the definition of the term “possession.” Appellant's argument focuses on the following exchange:
 
PROSECUTOR: If possession is not ownership, then what is possession? I will tell you that the law in Texas defines possession very broadly. It's any care or any custody or any control or any management.
DEFENSE COUNSEL: Judge, we will object to the addition of “any.” That is not the proper instruction.
THE COURT: Well, I think it is care, custody, control, or management.
DEFENSE COUNSEL: My objection is to the word “any.”
THE COURT: I understand. I think it is right.
PROSECUTOR: So again, any care, any control, any custody, any management. Four things. Very broadly defined in our law in Texas.
 
Appellant raised no further objection. On appeal, appellant again complains of the prosecutor's use of the word “any.” Appellant argues the prosecutor's use of the word “any” “nullifies the knowing scienter requirement imposed by the legislature in the statutory definition.” To preserve an issue for appellate review, a defendant must make a proper and timely objection and obtain a ruling on that objection. Tex. R. App. P. 33.1. The failure to object to allegedly improper statements during voir dire forfeits any right to complain about such statements on appeal. Utomi v. State, 243 S.W.3d 75, 84 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Nino v. State, 223 S.W.3d 749, 756 (Tex. App.-Houston [14th Dist.] 2007, no pet.). With two exceptions, the law in Texas requires a party to continue to object every time inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. Id.
        Here, appellant did not object when the prosecutor continued to use the word “any” in connection with the definition of “possession.” Accordingly, appellant has not preserved error on this issue. Furthermore, the record shows the prosecutor repeatedly emphasized that the State had to prove appellant possessed the drugs knowingly. The court's charge defined possession as “actual care, custody, control, or management,” and made no mention of the word “any.” Under these circumstances, even if we were to address appellant's argument, we could not conclude the prosecutor's use of the word “any” nullified the requirement that the State prove appellant acted knowingly. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061408F.U05