Ivory Bernard Blake v. The State of Texas--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00085-CR

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IVORY BENARD BLAKE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 19354

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

A jury found Ivory Benard Blake guilty of possessing, with intent to deliver, an amount of cocaine that was greater than four grams but less than 200 grams. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon 2003). The jury further found Blake had possessed the cocaine within a drug-free zone. See Tex. Health & Safety Code Ann. 481.134 (Vernon Supp. 2004). The trial court assessed Blake's punishment at seventy years' imprisonment and a $5,000.00 fine, in accordance with the jury's verdict. On appeal to this Court, Blake raises six points of error that challenge the legal and factual sufficiency of the evidence to support his conviction. In his seventh point of error, Blake contends the evidence is insufficient to support the jury's finding that he possessed cocaine in a "drug-free zone." We overrule all seven points of error and affirm the trial court's judgment.

I. Background

The evidence adduced at trial showed the following: On the late evening of September 3, 2002, Paris, Texas, police officers enlisted the help of confidential informant Tima Williams (who died before trial) to make a "controlled buy" of narcotics from the residence of Erik Dunkins and his girlfriend, Vicky Penny, located at 1440 Fitzhugh in Paris, Texas. Officers had previously recorded the serial numbers of three $20.00 bills and, using that money, Williams purchased a rock-like substance from the residence, which was then given to police. Subsequent police field tests of the substance indicated it was cocaine. The officers then secured a warrant to search the residence at 1440 Fitzhugh based on the results of the "controlled buy."

Using a no-knock entry, drug task force officers executed the search warrant at 1:17 on the morning of September 4, 2002. Officers entered through the front door into the living room of the small house and found Mary Kawanes sitting on the floor. To their right, officers saw a kitchen in which they located three men later identified as Blake, Dunkins, and Demetrius Douglas. (According to the officers' testimony at trial, Blake and Douglas were found next to a back door in the kitchen trying to unlock the door in an attempt to escape.) A second woman, subsequently identified as Penny, was found in one of the two bedrooms located off a hallway leading away from the living room. Officers detained all five suspects while searching the residence for suspected narcotics.

The officers' search of the kitchen showed the floor, countertops, and sink to be covered with a white powder, which a chemist with the Department of Public Safety's (DPS) laboratory in Tyler identified as cocaine. Also found were a set of scales, a large amount of cocaine residue inside the kitchen microwave, and a spoon, which officers testified were all commonly used in the manufacture of crack cocaine. A search of Blake himself revealed he had no cocaine (except for trace amounts of cocaine powder on the bottoms of his shoes), but Blake did have a crack pipe and $169.00 in United States currency in his pocket, including one of the $20.00 bills that came from the informant's earlier narcotics purchase. (The other two $20.00 bills from the controlled buy were found in Dunkins' possession). Throughout the house, officers found several white, off-white, or pink-colored rocks, which the DPS chemist identified at trial as crack cocaine. The following table shows the State's exhibit number, where the police found the contraband, and the weight of each substance:

Exhibit # Location Quantity

15 crack purchased during controlled buy .43 grams

16 crack found with pink can on kitchen counter .35 grams

17 plastic bag w/ cocaine residue found in sink trace

18 bag w/ residue found in Dunkins' bedroom trace

19 crack found on table in Penny's bedroom 0.04 grams

20 crack found on kitchen floor 1.16 grams

21 crack found in Dunkins' bedroom 3.76 grams

22 crack found in plastic bottle on kitchen floor 1.55 grams

At trial, Penny and Kay Blake (the appellant's mother) both testified Blake did not live at 1440 Fitzhugh at the time the search was conducted. Penny denied during cross-examination by the State that she had ever implicated Blake in the sale of drugs, but she did admit testifying to several different and conflicting sworn statements regarding the night of September 3, 2002, and that she was currently being prosecuted for perjury.

II. Standard of Review

In our review of the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). "In reviewing the evidence for legal sufficiency, the court must presume the trier of fact resolved any conflicting inferences in favor of the prosecution and must defer to that resolution." Duren v. State, 87 S.W.3d 719, 724 (Tex. App. Texarkana 2002, pet. denied). "The fact-finder may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence and may infer knowledge or intent from the acts, words, and conduct of the accused." Id.

In contrast to legal sufficiency, when reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude that the contrary evidence is strong enough that the state could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Id.

III. Analysis

In points of error one through four, Blake contends the evidence is legally and factually insufficient to support the jury's finding that he possessed cocaine in an amount greater than four grams. To prove unlawful possession of a controlled substance, the state must prove the defendant (1) intentionally or knowingly exercised actual care, custody, or control over the illegal substance; (2) was conscious of his or her connection with that illegal substance; and (3) knew the substance was illegal. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Hudson v. State, 128 S.W.3d 367 (Tex. App. Texarkana 2004, no pet.). The state may typically prove the quantity of contraband allegedly possessed through the testimony of an expert chemist. See Oltiveros v. State, 474 S.W.2d 221, 223 (Tex. Crim. App. 1971). The state may use either direct or circumstantial evidence to satisfy these elements, but the accused's connection to the contraband must be more than merely fortuitous. Hudson, 128 S.W.3d 367. If the contraband is not found on the defendant, or if the contraband is not in the defendant's exclusive possession, additional facts must affirmatively link the contraband with the defendant. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Green v. State, 892 S.W.2d 220, 222 (Tex. App. Texarkana 1995, pet. ref'd). "The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant's guilt." Hudson, 128 S.W.3d 367. As this Court stated in Stubblefield v. State,

Circumstances that may link a defendant to the controlled substance are: (1) the defendant's presence when the search was executed; (2) the contraband was in plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant was under the influence of contraband; (5) the defendant's possession of other contraband when arrested; (6) incriminating statements by the defendant when arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9) there was an odor of the contraband; (10) the presence of other contraband or drug paraphernalia not included in the charge; (11) the defendant's ownership or right of possession of the place where the controlled substance was found; (12) the drugs were found in an enclosed place; (13) there was a significant amount of drugs; and (14) the defendant possessed weapons or large amounts of cash.

79 S.W.3d 171, 174 (Tex. App. Texarkana 2002, pet. ref'd). The number of links is not as important as the quality and degree to which those links tend to connect the defendant to the contraband. Id. Nor must possession be exclusive to the defendant; evidence showing the defendant jointly possessed the contraband with another is sufficient to satisfy the State's burden of proof. Hudson, 128 S.W.3d 367.

In this case, there was no evidence Blake was under the influence of any narcotic at the time of the arrest, nor was any crack cocaine found on his person. Blake made no incriminating statements, nor was there any testimony he lived at the house on Fitzhugh. Nonetheless, there are eight links that, if found by a jury, connect Blake to the cocaine: (1) Blake was present in the house when the search warrant was executed; (2) police found quantities of cocaine in plain view; (3) officers found Blake located just a few feet away from the crack cocaine that was lying on the kitchen countertop; // (4) officers described Blake's pre-arrest behavior as consistent with someone who was attempting to flee; (5) Blake was in possession of drug paraphernalia; (6) officers found the cocaine in an enclosed home, much of it in the same room as Blake; (7) there was a large amount of drugs found in the home; and (8) Blake had over $150.00 in cash, including a $20.00 bill that came from the earlier drug sale to the informant.

Although it is not the number of affirmative links that control, but rather the degree to which they connect Blake to the cocaine, the links present in this case are more than sufficient to warrant the jury's conclusion Blake at least jointly possessed cocaine in an amount greater than four grams. The total weight of all the drugs seized from the house was more than six grams. On appeal, Blake claims he was never shown the cocaine in Dunkins' bedroom and therefore should not have the 3.76 grams found therein be counted against him. But we find nothing in the record to support such an assertion. To the contrary, when viewing the evidence in the light most favorable to the prosecution, and thereby assuming the jury did not believe Blake's money was winnings from a dice game (as one witness had suggested), Blake and Dunkins both had money the police linked to the earlier drug sale.

A jury could reasonably conclude, given the facts available in this case, that Blake and Dunkins shared in the proceeds from the earlier drug sale to the informant, Williams. It is also logical to assume that persons who jointly benefit from the sale of narcotics may jointly own the drug supply. That logical inference, combined with the amount of cocaine found throughout the kitchen and the rest of the house, could lead a jury to reasonably conclude Blake was working with Dunkins and therefore jointly possessed all the cocaine officers found throughout the house. We therefore cannot say the jury's verdict is not supported by legally sufficient evidence, nor can we say the jury's verdict is not factually sufficient. We overrule points of error one through four.

In his fifth and sixth points of error, Blake contends the evidence is legally and factually insufficient to prove he intended to distribute the cocaine. In a drug possession case, the "intent to deliver" element of the offense may be proven through circumstantial evidence, "such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused in a drug house." Taylor v. State, 106 S.W.3d 827, 831 (Tex. App. Dallas 2003, no pet.).

In this case, Officer Lee Foreman testified, "The amount of cocaine or suspected cocaine found, along with all the paraphernalia found observed in the kitchen area in plain view, is associated with delivering, manufacturing." There was no evidence contradicting Foreman's testimony on this issue, and no one testified that Blake possessed the cocaine for his own personal use. Moreover, a jury could logically conclude Blake was involved in the earlier drug sale based on his possession of money linked to the informant's controlled buy. Accordingly, the evidence is factually and legally sufficient to support the jury's finding that Blake possessed the cocaine with intent to distribute it. Blake's fifth and sixth points of error are overruled.

In his final point of error, Blake contends the evidence is insufficient to support the jury's finding that Blake possessed cocaine within a "drug-free zone." Blake suggests the evidence is insufficient because the State (1) offered no evidence that a nearby playground met any of the statutory requirements, (2) failed to offer the name of the playground, and (3) offered no map as evidence of the location or area to show the house where Blake was arrested was actually within 1,000 feet of a playground.

If it is shown that an accused possessed cocaine in an amount greater than four grams, but less than 200 grams, and that the accused possessed the cocaine "in, on, or within 1,000 feet of premises of a school or a public or private youth center," then the minimum term of confinement or imprisonment "is increased by five years and the maximum fine for the offense is doubled . . . ." Tex. Health & Safety Code Ann. 481.134(c). This is commonly called the "drug-free zone" enhancement. In this case, the jury made a special finding that Blake's offense occurred in a drug-free zone.

At trial, Foreman testified 1440 Fitzhugh fell within 1,000 feet of T.G. Givens Elementary School. The defense presented no evidence to controvert Foreman's testimony. The drug-free zone statute does not require the State to specifically present evidence from maps, to have testimony from a college professor of geography, or to submit complex metes and bounds declarations of nearby properties to satisfy its burden of proof on the drug-free zone element. Instead, the Health and Safety Code expressly authorizes the State to introduce or rely on "any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 481.134 . . . ." Tex. Health & Safety Code Ann. 481.135(d) (Vernon 2003) (emphasis added). Therefore, the State satisfied its burden of proof regarding the "drug-free zone" element through Foreman's testimony. Blake's final point of error is overruled.

For the reasons stated, we affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: May 5, 2004

Date Decided: May 6, 2004

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