DOMINIQUE J. HENDERSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00993-CR
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DOMINIQUE J. HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-32933-JQ
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        A jury convicted Dominique J. Henderson of possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams and assessed punishment at five years' imprisonment and a $5000 fine. In three points of error, appellant contends the evidence is factually insufficient to support the conviction and his sentence constitutes cruel and unusual punishment. We affirm the trial court's judgment.
 
Background
 
        On August 29, 2005, Grand Prairie police officers were dispatched to a gas station to investigate suspected drug sales from a vehicle. When officer Stephen Meneses arrived at the gas station at about 5:00 p.m., he saw the suspect vehicle parked at the north end of the lot. Three men were inside the vehicle: Jerald Cellum in the driver's seat; Dennis Wilson in the front passenger seat; and appellant in the back seat behind Cellum. Meneses testified that as he parked his marked patrol car behind the suspect vehicle, he saw appellant exit from the back seat and walk toward the station's store. Meneses told appellant to return to the vehicle. Appellant turned around, took his right hand out of his pants pocket, and dropped two “items” on the concrete. One of the items was “dark” and one was “light-colored.” Meneses ordered appellant to sit on the curb. When Cellum opened the driver's side door, Meneses saw two bags of marijuana in the door panel. Meneses arrested Cellum. Another officer arrived a few minutes later. Meneses took Cellum to the other officer's patrol car. Meneses asked the officer to recover the two items appellant had dropped on the ground. The officer found two baggies, one containing marijuana and one containing several “rocks” of cocaine. Later analysis showed the second bag contained 5.14 grams of cocaine. Meneses arrested appellant and began to search him. Appellant stood up and tried to get away. Meneses grabbed appellant's shirt, but appellant pushed Meneses away after a brief struggle and ran from the scene. Meneses chased appellant across six lanes of rush-hour traffic and into a wooded area near a nursing home. Another officer eventually apprehended appellant. Meneses searched appellant's pockets and found a large sum of cash that included twenty $20-bills and three $10-bills.
        Officer Leslie Burkett arrived at the gas station five minutes after Meneses. Burkett saw appellant sitting on the curb, Wilson in the front passenger seat of the vehicle, and Cellum outside the vehicle being handcuffed by Meneses. Meneses made eye contact with Burkett and pointed out two cellophane baggies laying in the parking lot. There was nothing else on the asphalt in that area. When Burkett picked them up, he saw one bag contained marijuana and the other bag contained rocks of crack cocaine. Meneses began to handcuff appellant, who was still sitting on the curb. Appellant jumped up and “flailed his arms and struggled with Meneses.” Appellant got away from Meneses and ran across the street. Burkett radioed for help while Meneses chased appellant. Burkett stayed at the scene with the other two suspects.
        Officer Victor Melton testified he answered a call to assist Meneses in a foot chase with a suspect. Melton saw appellant run into a wooded area near a nursing home. Melton blocked the roadway with his patrol car, then joined the chase on foot. When appellant came out of the wooded area, Melton apprehended him.
        Detective David Potts testified as an expert that crack cocaine is usually sold in dosage units of one-tenth of a gram for ten dollars. If an individual possessed 5.14 grams of crack cocaine, that would represent fifty-one individual dosage units, costing a total of about $510. Most drug users would not use over five grams of cocaine at one time for themselves, nor would they have numerous rocks of cocaine at one time. Individuals who sell drugs normally have cash in five-, ten-, and twenty-dollar bills when selling individual dosage units. If an individual has numerous rocks of cocaine and numerous twenty-dollar bills, that would indicate he was selling drugs. Potts also testified it is common for a drug dealer to have more than one type of drug in his possession.
        Appellant denied he had marijuana or cocaine in his pockets when he was stopped by Meneses, but admitted he knew Cellum had marijuana in the vehicle. Appellant testified he was walking to the gas station store to buy a cigar, soda, and chips when he saw two of his friends. He got into their car, but stayed for only five minutes. Appellant intended to smoke a blunt (a cigar rolled with marijuana instead of tobacco) with Cellum and Wilson, but instead got out of the car and continued to the store. When he heard Meneses say “Hey,” appellant turned around and walked over to the officer. Appellant denied he had anything in his hand or his hand in his pocket. According to appellant, Meneses told appellant Meneses had received a call about people in a car selling drugs and ordered appellant to put his hands on the car and spread his legs. Meneses searched appellant's pockets and found about $430 in cash. Appellant had that amount of money in his pocket because he intended to go shopping for shoes and clothing that day. After Meneses found the money, he gave it back to appellant and made appellant sit on the curb. Menses opened the driver's side door and saw the bags of marijuana. Burkett arrived and put Cellum in his patrol car. Appellant saw Meneses talking to a civilian and pointing towards the front of the store. Appellant became “nervous” because he was on probation at that time, so he stood up. Meneses ordered appellant to sit down, but appellant remained standing. When Meneses grabbed appellant's shirt, appellant slipped out of it and ran from the scene. A short time later, another officer apprehended appellant. Appellant did not know anything about cocaine until he got to the police station.
        During cross-examination, appellant testified he knew that sometimes people sold drugs from cars in the station's parking lot, but denied he had ever sold any drugs. Appellant admitted he saw Cellum and Wilson rolling up blunts while he sat with them in the car. Appellant denied seeing any cocaine. Appellant testified he was convicted for evading arrest in 2003, his probation on a prior theft conviction had been revoked, and two months after his arrest in this case, he was again arrested for possession of cocaine with two other men while inside a vehicle.
        Detective Daniel Scesney and Officer James Edwards testified about appellant's arrest on October 5, 2005, for possession of cocaine. The officers worked with a federal narcotics interdiction program in high crime areas. Scesney pulled over a vehicle after observing the driver commit two traffic violations. Appellant was in the back seat behind the driver. Edwards saw appellant make a “furtive movement.” After appellant was removed from the vehicle, Edwards found a rock of crack cocaine between the back seat and plastic portion at the bottom of the seat where appellant had been sitting. Scesney found a crack pipe wrapped in a napkin in the driver's side door panel with crack cocaine inside it, and prescription alprazolam tablets were found in the vehicle. Additionally, the front seat passenger had marijuana in his pocket.
Sufficiency of the Evidence
 
        In appellant's first issue, he contends the evidence is factually insufficient to support his conviction. In a factual sufficiency review, we view 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.), cert. denied, 128 S. Ct. 282 (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), cert. denied, 128 S. Ct. 87 (2007). 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 four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (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, 930 (Tex. App.-Dallas 2003, no pet.). 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). However, 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) 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 quantity 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).
        Appellant argues the evidence is factually insufficient because the intent to deliver was not proven, the cocaine was found in a public place, and there was no evidence that drug transactions had occurred. Appellant asserts there is nothing linking him to the cocaine. The State responds the evidence is factually sufficient to support the jury's verdict. After reviewing the record, we agree with the State.
        Here, the record shows appellant was in an area where regular drug activity occurred. Meneses saw appellant take his hand out of his pocket and drop the cocaine to the ground. Menses pointed out where appellant had dropped the cocaine to another officer, who retrieved it. Appellant had over $400 in ten- and twenty-dollar bills in his front pocket, and he fled the scene when Meneses attempted to arrest him. The quantity of cocaine totaled 5.14 grams, which represented about fifty- one individual dosage units, an amount and packaging indicative of selling rather than personal use. The “intent to deliver” element may be proved by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.-Dallas 1987, pet. ref'd); see also Edwards v. State, 813 S.W.2d 572, 578-79 (Tex. App.-Dallas 1991, pet. ref'd) (en banc).
        Appellant denied he possessed any cocaine and claimed that although he knew there was marijuana in the vehicle, he knew nothing about any cocaine. Appellant testified he had nothing in his hands and did not drop anything on the ground when he walked towards Meneses. Appellant claimed he fled from the officers because he was on probation and did not want to get into trouble. It was the jury's function to resolve the conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewing all of the evidence under the proper standard, we conclude it is factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We overrule appellant's first point of error.
Cruel and Unusual Punishment
 
        In his second and third points of error, appellant argues the sentence constitutes cruel and unusual pnishment, in violation of the United States and Texas Constitutions. Appellant asserts the jury assessed excessive and cruel punishment in light of appellant's testimony regarding his drug issues and contrition about possessing the cocaine. The State responds appellant has failed to preserve his complaints for appellate review and, alternatively, the sentence does not violate the United States or Texas Constitution.
        Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, the sentence is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We overrule appellant's second and third points of error.
        We affirm the trial court's judgment.
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47