MICHAEL DEAN DUPREE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 3, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01411-CR
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MICHAEL DEAN DUPREE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F03-51791-MP
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Moseley
        A jury convicted appellant Michael Dean Dupree of possession of a controlled substance, heroin, in an amount of four grams or more but less than 200 grams. Dupree pled true to one enhancement paragraph. The trial court found the enhancement paragraph true and assessed punishment at fifteen years' confinement.
        In two points of error, Dupree asserts the evidence was factually insufficient to support his conviction and the trial court erred by refusing to grant his motion for continuance. After reviewing the record, we conclude the evidence is factually sufficient to uphold the conviction and the trial court did not abuse its discretion with regard to the continuance. We affirm the trial court's judgment.
FACTUAL SUFFICIENCY
 
        In his second issue, Dupree asserts the evidence is factually insufficient to support his conviction. We apply the appropriate standard of review. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002).
        The State was required to prove beyond a reasonable doubt that Dupree knowingly possessed a controlled substance in an amount of four grams or more but less than 200 grams. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the drugs and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). 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 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 record contains evidence that officers responded to a telephoned report of drug sales at a club at 3008 South Lamar in Dallas, Texas. One officer observed the club from a distance for a period of about twenty minutes, and observed a man wearing a white shirt and dark pants come to the door of the club. The officer saw the man take money from two other men who came to the door, and then allowed them to enter; a moment later, two men emerged from the building and walked away. The same officer then observed the white-shirted man open the door for a woman. The officer communicated to the two supporting officers, and his own partner, who was waiting nearby, to come up on the club.         When the other officers entered the club, they saw a male wearing a white shirt and dark pants, the woman who had just entered the club, and what appeared to be a bag of drugs on the table just behind them. The officers testified that in their experience, the situation looked like a negotiation of a hand-to-hand transaction of drugs. The officers handcuffed the white-shirted man, who the officers identified at trial as Dupree. On the table next to the bag of capsules were forty dollars in cash. Another officer performed a field test on the capsules found in the bag; the test showed the capsules contained heroin. A subsequent test at the Southwest Institute of Forensic Science confirmed the sixty-two capsules found in the bag contained 8.2 grams of heroin, including adulterants and dilutants.
        The record contains evidence that links Dupree to the heroin and establishes possession. Dupree matched the description of the man the observing officer had seen come to the door of the club on two occasions. This officer testified that the man in the white shirt accepted money from one of the other men for whom he opened the door. When the supporting officers entered the club, they saw Dupree, the woman, and the bag of drugs right next to them. Dupree was standing within only a few feet of the drugs, and the drugs were in plain view on the table. The amount of drugs (a bag of sixty-two capsules of heroin) and the forty dollars in cash sitting next to the drugs was sufficient evidence for the jury to infer that Dupree had knowledge of the drugs. See Porter, 873 S.W.2d at 732.
        Dupree contends the evidence is factually insufficient to support his conviction because his mere presence in the club cannot make him a party to an offense. Although Dupree does not dispute the evidence related by the officers linking him to the drugs, he argues he did not have a gun, he did not try to flee from the officers, he cooperated with the officers, and he did not have a look-out posted to watch for the police, things Dupree argues are characteristic of drug dealers. Dupree further contends the officer's suspicions based on observation of the club was not sufficient to prove he was a drug dealer.
        However, Dupree was convicted by the jury of the lesser-included offense of possession of heroin, but was not convicted of initial charge of possession with intent to deliver. Therefore, evidence that Dupree was not dealing drugs or is not a drug dealer is not relevant to his conviction for possession, which is supported by the aforementioned evidence in the record.
        Considering all the evidence in a neutral light, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415; Fuller, 73 S.W.3d at 254. 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). We decide Dupree's factual sufficiency issue against him.
MOTION FOR CONTINUANCE
 
        On June 27, 2006, Dupree filed a written motion for continuance to allow testimony from a witness, Brian Craig Johnson, whose full identity was obtained only on June 26, 2006. Dupree argued Johnson was to testify that he worked the door at the club where Dupree was arrested, he knew Dupree because Dupree came to the club occasionally, Dupree did not work at the club and had no control over the premises, and Dupree did “not sell dope.” Johnson was awaiting trial on other charges, and was not available to testify until his own trial was over. At the hearing on the motion for continuance, the trial court did not rule on Dupree's motion, but rather carried the motion and allowed the trial to proceed. In his first issue, Dupree contends the trial court abused its discretion in denying his written motion for continuance. Dupree argues Johnson was a crucial witness to his case because his testimony went to the heart of Dupree's defense that he was present at the club as a customer.
        The State argues Dupree failed to preserve error for review of his motion because he failed to meet the statutory requirements for an effective motion for continuance. The State also contends that denial of the motion was not an abuse of discretion by the trial court because Dupree did not pursue his motion to an adverse ruling. Dupree responds that, as a practical matter, the trial court denied his motion for continuance.
        In a motion for continuance based on the absence of a witness, a defendant must state the facts that are expected to be proved by the witness, and it must appear to the court that those facts are material. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006). Granting or denying a motion for continuance is within the discretion of the trial court. See Tex. Code Crim. Proc. Ann. art. 29.01 (Vernon 2006); Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000). The trial court's ruling on the motion for continuance is reviewed for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(3), and 29.06(6) (Vernon 2006). To establish an abuse of discretion, appellant must show he was actually prejudiced by the denial of his motion. Vasquez, 67 S.W.3d at 240; Heiselbetz, 906 S.W.2d at 511.
        Assuming that Dupree preserved error on this issue, the record clearly reflects that Johnson was to testify he was not present at the club when Dupree was arrested. Therefore, Johnson's testimony was not material to Dupree's defense, and Dupree has not shown he was prejudiced by the trial court's denial of his motion. See Vasquez, 67 S.W.3d at 240; Tex. Code Crim. Proc. Ann. art. 29.06. We overrule Dupree's first issue.
         We affirm the judgment of the trial court.
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
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