JACINTO CORREA CRUZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 13, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01505-CR
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JACINTO CORREA CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-81252-01
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Wright
        Jacinto Correa Cruz appeals his conviction for possession of cocaine in an amount of four grams or more but less than 200 grams, with the intent to deliver. After finding appellant guilty, the jury assessed punishment at twenty years' confinement and a $5000 fine. In four issues, appellant contends the evidence is legally and factually insufficient to support his convictions and that we must reverse the judgment because the jury charge is uncertified and is not signed by the jury foreman. We overrule appellant's issues and affirm the trial court's judgment.
Background
        Sergeant Joe Ellenburg testified he was working undercover investigating the sale of cocaine to high school students from an apartment located near an elementary school. Ellenburg drove a confidential informant (CI) to the apartment and observed her from his car which was parked about ten- or fifteen-feet away. The CI knocked on the apartment door, gave a man money provided by Ellenburg, and returned with cocaine. Based on that transaction, Ellenburg obtained a search warrant and conducted a search of the apartment the next day. As the police were about to enter the apartment, Ellenburg saw Norberto Galvan leave the apartment and ride away on a bicycle. After Ellenburg detained Galvan, he returned to help search the apartment. As he entered, Ellenburg saw a mattress on the floor near the front door. He found a bag containing 55 baggies of cocaine “between the front of the mattress and the wall, sticking up.” There was a loaded pistol on the mattress covered “by a pillow or some covers.” Ellenburg also testified that two nights before the search, he had been in the apartment and saw a man who matched appellant's general description in the apartment. Finally, Ellenburg testified appellant had approximately $5000 in his wallet and an additional $410 in his pocket. The money in appellant's pocket included money Ellenburg had given to the CI for the drug buy the night before. Ellenburg explained that drug dealers often have large amounts of money because their transactions are conducted using cash.
        Detectives Peter Craig Copin and Terry Morrison helped execute the search warrant. As part of Copin's duties, he matched serial numbers from the money Ellenburg gave the CI to that of money found in appellant's pocket. Copin also testified the total amount of cocaine found in the apartment was 23.17 grams. Morrison testified he found a black plastic bag hanging from a wall near the front door. The black plastic bag contained 51 baggies of crack cocaine. The bag also contained paperwork belonging to Galvan.
        Chief Mark Fragoso was part of the entry team involved in the search of the apartment. Because he spoke Spanish, Fragoso asked appellant if there was anything in the house the police needed to know about. Appellant told Fragoso, “the drugs were by the front wall, near the bed.” Appellant also told Fragoso he had worked for the money the police found in his pocket and wallet.
        Appellant testified he did not live in the apartment, it belonged to Galvan. He was there the day it was searched because appellant had come to get money from Galvan to deliver to Galvan's family in Mexico. Galvan gave appellant $410, that appellant put into his pocket. He put it into his pocket to keep it separate from the $5,350 that was in his wallet and belonged to him. After Galvan gave appellant the money for his family, Galvan left the apartment, leaving appellant there alone. Before Galvan left, appellant saw Galvan put something in a black bag on the wall. Appellant denied knowing there were drugs in the black bag or in the apartment. According to appellant, when the police asked him if there were drugs in the apartment, he told them he did not know but that he had seen Galvan put something into the black bag before he left. After hearing this and other evidence, the jury found appellant guilty of possession of cocaine with the intent to deliver.
Sufficiency of the Evidence
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his convictions. In reviewing such claims, we apply well-known standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007).
        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 (Vernon 2003). Appellant does not challenge the jury's determination regarding the intent to deliver; he argues the State failed to link him to the cocaine found in the apartment. 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. 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 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 links include: (1) whether the accused was present when the drugs were found, (2) the amount of drugs found, (3) whether there was drug paraphernalia found with the drugs, (4) the manner of packaging of the drugs found, (5) whether the accused possessed weapons or a large amount of cash; and (6) whether the defendant made any incriminating statements when arrested. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        Here, the record shows appellant was the only person present in the apartment when a large amount of cocaine was found. Fragoso testified appellant told him where to find drugs in the apartment. Because the apartment was small, the drugs were necessarily in proximity and accessible to appellant. And, appellant had a large amount of cash in his pocket and wallet, including the money Ellenburg gave the CI the night before to purchase cocaine. Although appellant denied knowing the cocaine was in the apartment, and explained the large amount of cash he had in his wallet and pocket, the jury was free to reject appellant's testimony. See Westerbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury is in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. 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 four grams or more but less than 200 grams of cocaine, with the intent to deliver. Viewed under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's first and second issues.
Jury Charge
        In his third and fourth issues, appellant contends we must reverse his conviction because the trial court failed to certify the charge and rendered a verdict based on a charge that was not signed by the foreman of the jury. After reviewing the record, we disagree.
        In his third issue, appellant contends the trial court egregiously erred by failing to certify the charge. Article 36.17 of the code of criminal procedure requires the trial court to certify the charge and file it among the papers in the cause. See Tex. Code Crim. Proc. Ann. art. 36.17 (Vernon 2006). The trial court's failure to do so is error. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.). However, when, as here, an appellant fails to object to the trial court's failure to certify the charge, we will reverse only if the trial court's error was so egregious and created such harm that the defendant did not have a fair and impartial trial. See id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.1984)).
        Although the record does not appear to contain a copy of the charge submitted to the jury, the record reflects the trial court read the charge to the jury without objection and then submitted it to the jury. Assuming the trial judge failed to certify the charge, nothing in the record shows the lack of the judge's signature influenced the jury's verdict. Thus, we cannot conclude the trial court's error was so egregious that appellant did not have a fair and impartial trial. See Nolan, 39 S.W.3d at 698. We overrule appellant's third issue.
        In his fourth issue, appellant contends we must reverse his conviction because the trial court rendered a verdict on a jury charge that was not signed by the jury foreman. The record, however, belies appellant's claim. After the jury reached a verdict, the bailiff read the verdict aloud as follows: “We, the Jury, find the defendant guilty of possession with intent to deliver a controlled substance, as charged in the indictment. Signed John W. Powell, Sr., presiding juror.” Because the record shows the verdict was signed by the presiding juror, we conclude appellant's complaint lacks merit. We overrule his fourth issue.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061505F.U05