MOHAMMAD OSAMA DAOUD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 10, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01468-CR
No. 05-08-01469-CR
............................
 
MOHAMMAD OSAMA DAOUD, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-81228-07, 217-81229-07
.............................................................
 
OPINION
 
Before Chief Justice Wright and Justices Richter and Fillmore
Opinion By Justice Fillmore
 
 
        A jury convicted Mohammad Osama Daoud of possession of cocaine and marijuana. Pursuant to an agreement between Daoud and the State during the punishment phase, the trial court assessed punishment at five years' imprisonment, probated for five years, and a $250 fine for the possession of cocaine conviction, and two years' confinement in a state jail facility, probated for five years, and a $250 fine for the possession of marijuana conviction. In a single point of error, Daoud contends the evidence is legally insufficient to support his convictions. We affirm the trial court's judgments.
 
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper, 214 S.W.3d at 13.
        The State was required to prove beyond a reasonable doubt that Daoud intentionally or knowingly possessed cocaine in an amount of one gram or more, but less than four grams, and intentionally or knowingly possessed marijuana in an amount of less than five pounds, but more than four ounces. See Tex. Health & Safety Code Ann. §§ 481.115(a), (c), 481.121(a), (b)(3) (Vernon 2003). To do so, the State had to prove Daoud exercised actual care, control, or management over the cocaine and marijuana and knew they were 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 Daoud 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, there is no set formula of facts that would 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 by the accused, (4) whether the accused attempted to flee, and (5) whether there was cash, weapons, or paraphernalia found with the drugs. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        The jury was instructed it could find Daoud guilty as a principal actor to the offense, guilty as a party to the offense, or not guilty. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.).
Evidence Presented
 
        The jury heard testimony from two Allen police officers, an investigator, and co-defendant Kevin Wilson. Officer William Ruatta testified he was conducting routine patrol of an apartment complex location on south Jupiter Road at about 3:50 a.m. on March 6, 2007. He saw Daoud and Kevin Wilson sitting inside a white SUV that had been backed into a parking stall. The interior dome light was on, but the vehicle's headlights were off and the engine was running. Daoud was in the front passenger seat and Wilson was in the driver's seat. Ruatta became suspicious and stopped his patrol car before he reached the SUV. As Ruatta notified the police dispatcher that he was going to check on a suspicious vehicle, he saw Daoud and Wilson get out of the SUV and walk away quickly. Ruatta ordered the men to stop and walk to his patrol car, then place their hands on the hood. While Ruatta talked with Daoud and Wilson, Officer Laura Gilmore arrived on the scene. After Wilson refused to allow the officers to search the SUV, Ruatta radioed for a K-9 unit. While Ruatta talked with the dispatcher, Gilmore used her flashlight to look through one of the SUV's windows. After a few seconds, Gilmore walked back to Ruatta's patrol car and handcuffed Wilson, stating she saw crack cocaine inside the SUV. Ruatta handcuffed Daoud, then went to the SUV. He saw several rocks of crack cocaine in the center console in plain view. Ruatta opened the driver's side door and immediately smelled the odor of fresh marijuana. Gilmore found a digital scale and a large bag that contained marijuana under the front passenger seat. In the center console, Ruatta found a clear plastic bag that contained several rocks of crack cocaine, several smaller baggies, and a paper with names and telephone numbers written on it. Later analysis showed the large bag contained “6.48 ounces of marijuana,” and the clear plastic bag contained “1.92 grams of cocaine.” Both Daoud and Wilson denied that either drug belonged to them. The officers transported Daoud and Wilson to the city jail, and then to the Collin County Sheriff's Department.
        Officer Gilmore testified that after Wilson refused to allow Ruatta to search the vehicle, she walked to a white SUV that was backed into a stall with its engine still running. She looked into the passenger-side window with her flashlight and saw a plastic bag with cocaine rocks inside in the center console. After she and Ruatta handcuffed Wilson and Daoud, they searched the vehicle. When she opened the passenger door, she smelled a strong odor of fresh marijuana. She found four “one-inch by one-inch” baggies underneath the bag of cocaine in the center console. A small piece of paper that contained a list of names, cities, and telephone numbers was also in the center console. When she searched under the front passenger seat, Gilmore found a digital scale and a “gallon-size plastic bag” that contained marijuana.
        Kevin Wilson testified he owned the vehicle where the drugs were found, and that both the cocaine and marijuana were his. Wilson knew the cocaine was in the center console, but he did not recall where inside the vehicle the marijuana was located. Wilson testified Daoud was with him as they sat in Wilson's SUV in the complex parking lot, but Wilson did not recall what they were doing. Wilson had “stopped by” the complex because Daoud had called him and asked him to come over. Wilson did not recall if he intended to “conduct any business” with Daoud at that time. When he saw a patrol car drive into the area, Wilson got out of his vehicle and walked away because he knew there were drugs inside the vehicle. Daoud also got out of the vehicle and walked away. When the officer told them to stop, Wilson stopped immediately and followed the officer's instructions. Although he did not give consent to search his vehicle, the officers eventually searched it and found the drugs inside. Wilson testified he remembered talking with the prosecutor five days before Daoud's trial, but he did not recall telling the prosecutor that he had gone to the complex to sell Daoud marijuana because Daoud had called and asked him for marijuana. Wilson also did not recall telling the prosecutor that he was conducting a drug deal with Daoud in the parking lot before the officers drove into the area.
        Robin Laughon, an investigator for the Collin County District Attorney, testified she was in a room at the Collin County jail with Wilson, Wilson's counsel, and the prosecutor five days before Daoud's trial, on September 18, 2008. She heard Wilson state: (1) he had known Daoud for “a while,” but they were not really friends, (2) he went to Daoud's apartment complex to make a drug deal after receiving a call from Daoud, (3) Daoud was going to purchase “two dime bags” of marijuana from him, and (4) money had been exchanged, but when the police pulled up, he gave the money back to Daoud and the drugs were never given to Daoud.
        Daoud did not present any evidence during the guilt/innocence phase of the trial.
Discussion
 
        Daoud contends the evidence is legally insufficient to support the jury's finding that he possessed cocaine and marijuana because nothing links him to the cocaine and marijuana. Daoud asserts that because he was merely present at the scene, he was not the owner of the vehicle where the cocaine and marijuana were found, and Wilson admitted the cocaine and marijuana belonged to him, the evidence is insufficient to show that he ever possessed the cocaine and marijuana. Daoud contends that the evidence, at most, only shows an attempt to purchase marijuana. The State responds that evidence that Daoud possessed cocaine and marijuana, either directly or as a party, was legally sufficient to support his convictions.
        The evidence presented to the jury showed numerous links between Daoud and the cocaine and marijuana found inside Wilson's vehicle. For example, Daoud was present when the drugs were found, and he had been sitting inside the vehicle a few minutes before officers found the drugs. The cocaine was found in plain view in the center console, putting it within arm's reach of Daoud. The marijuana was found under the front passenger seat where Daoud had been sitting, and was in close proximity to and accessible by Daoud. Both Ruatta and Gilmore testified that the odor of marijuana from inside the vehicle was so strong that no one who sat inside the vehicle would not have known that marijuana was in the vehicle. Several empty baggies and a digital scale that were found inside the vehicle were within close proximity to and accessible by Daoud. And, Daoud attempted to flee when Ruatta drove into the apartment complex parking lot.
        Wilson told the jury that the cocaine and marijuana belonged to him, that he drove to the complex because Daoud had called him to come over, and that he did not remember what he and Daoud were doing while they sat in the parking lot.   See Footnote 1  The jury heard Laughon's testimony that Wilson told the prosecutor that Daoud called him to purchase some marijuana, Wilson drove to the complex to sell Daoud the marijuana, and that Daoud saw the cocaine and marijuana inside the vehicle.   See Footnote 2 
        It was the jury's function to resolve any 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). The jury could have reasonably concluded that Daoud encouraged, aided, or attempted to aid Wilson in possessing the cocaine and marijuana. See Michel, 834 S.W.2d at 67.
        Viewing all of the evidence under the proper standards, we conclude it is legally sufficient to support Daoud's convictions and the jury's findings that he acted as a party in the commission of the offenses. See Hooper, 214 S.W.3d at 13; Porter, 873 S.W.2d at 732; Michel, 834 S.W.2d at 67. We overrule appellant's sole point of error.
        We affirm the trial court's judgment in each case.
 
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
081468F.U05
 
Footnote 1 Although Wilson was allowed to testify before the jury, the jury was instructed that Wilson was an accomplice to the offense as a matter of law and they could not convict Daoud upon Wilson's testimony unless:
 
 
you believe his testimony is true and shows that the defendant is guilty as charged and . . . you believe that there is other testimony in the case, outside of the evidence of the said Kevin Wilson, tending to connect the defendant with the offense committed.
Footnote 2 The jury was permitted to consider Laughon's testimony for the limited purpose of assessing the weight and credibility of Wilson's testimony.