JAMES GERMON HARPER, 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. 05-07-01137-CR
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JAMES GERMON HARPER, 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. F06-71253-JQ
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        James Germon Harper was convicted of possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. The trial court assessed punishment, enhanced by a prior felony conviction, at fifteen years' imprisonment and a $1000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
 
        On October 3, 2006, Dallas narcotics detectives obtained a search warrant for a suspected drug house. Officers received information about drug activity at the house from a confidential informant, who provided a physical description of a man and a woman selling drugs from the house. On October 5, 2006, Detective Patrick Boyett conducted surveillance on the house. Boyett testified he saw appellant, who matched the suspect description given by the informant, standing outside the house. Appellant walked from the house to the street, looked left and right, then walked back to the house and went inside. Appellant opened the door without using a key. During the time Boyett watched the house, appellant came outside, looked around, and went back into the house three times. The next day, Boyett and other officers executed the search warrant on the house. Boyett, who was the first officer to enter the house, saw appellant standing in a doorway between the living room and kitchen. The kitchen was towards the rear of the house. Appellant did not have anything in his hands. Boyett testified he saw, in plain view, an M & M candy dispenser on a table in the living room located about eighteen inches from where appellant had been standing. The dispenser contained several small baggies filled with crack cocaine. Also in plain view on the table was an ashtray filled with empty baggies. Other officers searched the premises and found two more candy dispensers under the stove cover. Each dispenser contained small baggies filled with crack cocaine. Later analysis showed the three candy dispensers contained seventy individual baggies that had a total of 12.6 grams of cocaine inside them. Boyett testified the quantity of cocaine found and its packaging indicated an intent to deliver.
        Boyett also found Helen Reed, who fit the suspect description provided by the informant, in the house and arrested her. Officers found a “shark cage” on the back door and a refrigerator partially blocking the door and cage. Drug dealers use a shark cage on a door as a common safety tool to keep the police and others from coming in and out of the house. Officers searched appellant and found a key they believed opened the front door of the house. Boyett testified he saw an officer use the key to unlock and open the front door.
        Ashley Whatley, appellant's girlfriend, testified she lived in an apartment that was not located near the drug house. Appellant lived with Whatley and watched her children three days a week while Whatley worked. Appellant did not have a job, had a drug problem, and lived with an aunt when he was not at Whatley's apartment. Whatley knew where the drug house was located because she had relatives who lived in that area, but she had never been to the house. Appellant had been to that house “maybe once or twice.” She testified the key found in appellant's pocket was a key to her apartment's front door that she had given to appellant months before.
        Appellant admitted he was in the house when officers executed the search warrant, but denied he knew drugs were there. Appellant testified none of the cocaine found in the house belonged to him. Appellant went to the house to “get high,” not to buy or sell drugs. Appellant met Helen at a store earlier that day. Helen said he could come to her house to get high. Appellant already had four baggies that contained “little bitty” rocks of cocaine when he went to the house. He smoked the cocaine at the house with tobacco and rolling paper. He gave a small portion of the cocaine to Helen. The key found in appellant's pocket belong to his girlfriend's apartment and not to the drug house. Helen was the person who opened the front door to the house when they arrived, and the door was not locked. Appellant testified the officers lied about his key unlocking the front door to the drug house, and they also lied about seeing appellant at the drug house the day before they executed the search warrant. Appellant also testified he had prior convictions for possession with intent to deliver a controlled substance, possession of a firearm by a felon, and assault on a public servant.
        Investigator Bill Van Sickel testified that a copy of the key found in appellant's pocket fit into the lock at the drug house, but did not turn or unlock the door. The key did unlock Whatley's front door.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views 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. Lancon v. State, No. 0182-07, 2008 WL 2081638, at *5 (Tex. Crim. App. May 14, 2008).
        The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly possessed with intent to deliver cocaine in an amount of four grams 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, 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). However, no set formula of facts exists to dictate a finding of affirmative 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 affirmative 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. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because he was not in sole possession of the premises, did not own or live in the house where drugs were found, and was merely present in a place where drugs were found. Appellant asserts Boyett's testimony was inconsistent and contradicted by the evidence because the key found in his pocket unlocked the door to Whatley's apartment and not the drug house. The State responds that the evidence is legally and factually sufficient to support appellant's conviction.
        There was evidence that appellant matched the description of a suspect selling drugs from the house, he was observed coming outside of the house, looking around, and going back into the house several times, and he was found inside the house the next day. A candy dispenser containing cocaine and drug paraphernalia were in plain view on a living room table near where appellant was standing when the police entered the house. Officers found two other candy dispensers filled with small baggies of cocaine when they searched the premises. In total, the candy dispensers contained seventy baggies that each contained a rock of cocaine that totaled 12.6 grams. In a possession with intent to deliver case, 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).
        Although appellant's girlfriend said she believed appellant had been to the drug house “once or twice,” appellant testified the day he was arrested in the house was the first time he had ever been to the house. Appellant also testified he only went to the house to smoke cocaine that he brought with him, and the cocaine found in the house did not belong to him.
        As the fact finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.).
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Swearingen, 101 S.W.3d at 97. We resolve appellant's issues against him.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071137F.U05