Derick Deon Howard v. State

Opinion issued January 10, 2008

Opinion issued January 10,

2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00951-CR

__________

DERICK DEON HOWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the

177th District Court

Harris County, Texas

Trial Court Cause No. 1064973

MEMORANDUM OPINION

A jury

convicted appellant, Derick Deon Howard, of possession with intent to deliver

a controlled substance, namely, cocaine, weighing more than four grams and less

than two hundred grams [1] and assessed punishment at ten years’

confinement and

class=Section2>

a $1,500 fine. In four

points of error, appellant contends that the evidence is legally and factually

insufficient to support his conviction. We affirm.

BACKGROUND

On the evening of April 12,

2006, Sergeant K. Richards of the West Side Divisional Tactical Unit was

conducting surveillance from his unmarked pickup truck, which was parked in the

parking lot of an apartment complex. The surrounding area had been considered

a high crime area, or “hot spot,” by the Houston Police Department. Sergeant

Richards saw a four-door maroon Buick enter the parking lot and back into a

parking space about four spaces away from his location. Richards saw appellant

and a two-year-old toddler in the parked car. Approximately two minutes after

the Buick was parked, a man walked through an apartment gate and got into the

Buick from the rear, passenger-side door. Richards saw appellant turning and

reaching toward the backseat, conducting some type of transaction. Moments

later, the man in the rear of the car got out, scanned the surroundings, and

sprinted back into the apartment complex.

Then, appellant drove the

Buick out of the apartment complex parking lot, followed by unmarked police

cars. A traffic stop was initiated by a uniformed officer, Sergeant

Cashdollar, for violations of a cracked rear tail light and failing to properly

restrain a child. After Cashdollar learned appellant was driving without a

valid Texas

driver’s license, also a violation of

Texas law, he arrested appellant. Id. Appellant was searched

incident to his arrest, and the police officer recovered $1,255 in cash. The

Buick appellant was driving was also searched, and the officers recovered a

plastic baggie containing 4.2 grams of crack cocaine from a hidden dashboard

compartment, which was located a few inches to the left of the steering column.

SUFFICIENCY OF THE EVIDENCE

In his first and second points of

error, appellant argues that the evidence was legally insufficient to support

his conviction for possession of a controlled substance with the intent to

deliver. Appellant also challenges the factual sufficiency of the evidence in

his third and fourth points of error for review. When both the legal and

factual sufficiency of the evidence are challenged, we must first review the

evidence under the legal sufficiency standard. Harmond v. State , 960

S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc

opinion); see Clewis v. State , 922 S.W.2d 126, 133 (Tex. Crim.

App.1996).

I. Legal Sufficiency

In evaluating the legal

sufficiency of the evidence, we must view the 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 offense beyond a reasonable doubt. King

v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); see also Roberson

v. State , 80 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). Although our analysis considers all evidence presented at trial, we

may not re-weigh the evidence and substitute our judgment for that of the

jury. King , 29 S.W.3d at 562 ; Roberson , 80 S.W.3d at 734 .

To establish unlawful possession with

the intent to deliver a controlled substance, the State must show that a defendant

(1) exercised actual care, custody, control, or management over the controlled

substance; (2) knew that he possessed a controlled substance; and (3) had the

intent to deliver the controlled substance. Tex.

Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003), §

481.002(38) (Vernon Supp. 2007), § 481.112(a) (Vernon 2003); see also

Poindexter v. State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). One need

not have exclusive possession of the drug. Harvey v. State , 487

S.W.2d 75,77 (Tex. Crim. App. 1972).

A. Possession of a Controlled

Substance

When contraband

is not found on the accused’s person or when the accused is not in exclusive

possession of the place where the contraband is found, we cannot conclude that

the accused had knowledge of and control over the contraband unless the State

establishes a link [2]

between the accused and the contraband— i.e. , independent facts and

circumstances that link the accused to the contraband so as to suggest that the

accused had knowledge of the contraband and exercised control over it. [3] Rhyne v. State , 620 S.W.2d

599, 601 (Tex. Crim. App. 1981); Robinson v. State , 174 S.W.3d 320, 325

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Swarb , 125 S.W.3d at

684. The link may be established through either direct or circumstantial

evidence. See Brown v. State , 911 S.W.2d 744 , 746–47 (Tex. Crim.

App. 1995).

The link

terminology does not constitute a unique legal rule, but is only a shorthand

way of expressing what must be proven to establish that narcotics were

possessed knowingly or intentionally. Id. at 747. Texas courts

have identified several factors that may help to establish a link between the

accused and the contraband, including whether (1) the defendant was present

when the narcotics were found; (2) the contraband was in plain view; (3) the

defendant was in proximity to the narcotics and had access to them; (4) the

defendant was under the influence of narcotics when arrested; (5) the defendant

possessed other contraband; (6) the defendant made incriminating statements

when arrested; (7) the defendant attempted to flee; (8) the defendant made

furtive gestures; (9) the odor of the narcotic found was present; (10) the

defendant owned or had the right to possess the place where the narcotics were

found; (11) the narcotics were found in an enclosed place; (12) the amount of

narcotics found was significant; (13) the defendant possessed a weapon; and

(14) the defendant possessed a large amount of cash. Swarb v. State ,

125 S.W.3d 672, 684 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).

Although several factors relevant to establishing the necessary link have been

identified, the number of factors supported by the evidence is not as important

as the “logical force” they collectively create to prove that a crime has been

committed. Roberson , 80 S.W.3d at 735 (quoting Hurtado v. State ,

881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)).

Evidence that links the accused to the narcotics must establish a connection

that was more than fortuitous. Brown , 911 S.W.2d at 747 .

In this case,

the evidence shows that appellant had multiple links to the cocaine. Appellant

was the sole adult occupant of the vehicle in which the cocaine was found. See

Hyett v. State , 58 S.W.3d 826, 830 (Tex. App.—Houston [14 th Dist.]

2001, pet. ref’d) (stating that the appellant’s sole occupancy of vehicle in

which cocaine was found affirmatively linked him to cocaine). Appellant also

claimed to own the vehicle. Gilbert v. State 874 S.W.2d 290 . Appellant

had convenient accessability next to the steering column where the drugs were

kept. See Robinson v. State , 174 S.W.3d 320, 326 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d) (stating that the term “conveniently accessible”

means that contraband is within close vicinity of accused and easily accessible

while in vehicle so as to suggest accused had knowledge of contraband and

exercised control over it). Also, the police discovered the cocaine on the

same side of the car as where the accused was sitting. Gilbert , 874

S.W.2d at 298 . An experienced police officer witnessed appellant engaged in an

activity believed to be a drug deal which would indicate appellant’s

consciousness of the drugs.

Viewing the evidence in

the light most favorable to the verdict, we hold that there were sufficient

links between appellant and the contraband to conclude that appellant knowingly

possessed the cocaine.

B. Intent

to Deliver

To prove the

offense of possession of a controlled substance with the intent to deliver,

the State must prove, in addition to possession, that the accused intended “to

transfer, actually or constructively, to another a controlled substance....” Tex. Health & Safety Code Ann . §

481.002(8) (Vernon 2003 & Supp. 2007), § 481.112(a) (Vernon 2003). Intent

to deliver a controlled substance can be proved by circumstantial evidence,

including evidence regarding an accused’s possession of the contraband. Mack

v. State , 859 S.W.2d 526, 528 (Tex. App.—Houston [1st Dist.] 1993, no

pet.). Additional factors that this Court has considered in determining

whether the accused had the intent to deliver include: (1) the nature of the

location at which the accused was arrested; (2) the quantity of contraband in

the accused’s possession; (3) the manner of packaging; (4) the presence, or

lack thereof, of drug paraphernalia for either use or sale; (5) the accused’s

possession of large amounts of cash; and (6) the accused’s status as a drug

user. Williams v. State , 902 S.W.2d 505, 507 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref'd). Expert testimony by experienced law enforcement

officers may also be used to establish an accused’s intent to deliver. See

Mack , 859 S.W.2d at 529 . An oral expression of intent is not required;

intent can be inferred from the acts, words, and conduct of the accused. Patrick

v. State , 906 S.W.2d 481, 487 (Tex. Crim. App.1995).

Appellant was arrested in a “hot spot,” which was

known for robberies and narcotics transactions. The police had seen appellant

participate in what appeared to be a drug transaction. Officer Novak testified

that the amount of cocaine possessed by appellant—4.2 grams—was more than a

usable amount of narcotics that a person would possess for recreational use. Appellant

was in possession of a large sum of cash, $1,225, when arrested. Officer

Novak testified that he also found the manner in which appellant’s cash was

folded to be indicative of someone involved in narcotics transactions. Of the

$1,225 in cash, $500 had been separated, marked “$500,” and inserted inside the

larger amount of cash. Officer Novak testified that this type of currency

separation is fairly common in narcotics transactions so that one could easily

identify smaller amounts of cash when carrying a larger amount. Finally, no

drug paraphernalia for the use of cocaine was found in the vehicle or on

appellant’s person. See Mack , 859 S.W.2d at 529 (finding that absence

of paraphernalia for smoking or using cocaine supports inference that accused

intended to deliver, rather than consume, contraband). Viewing the evidence in

a light most favorable to the verdict, the evidence is sufficient to show

possession with intent to deliver cocaine.

After reviewing

the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found, beyond a reasonable doubt, that appellant was

guilty of possession of a controlled substance, namely cocaine, with the intent

to deliver.

We overrule appellant’s

first and second points of error.

II. Factual Sufficiency

In his third and fourth

points of error, appellant contends the evidence was factually insufficient to

support his conviction for possession of a controlled substance with the intent

to deliver.

In a

factual-sufficiency review, we view all the evidence, both for and against the

finding, in a neutral light and set aside the verdict only if the proof of

guilt is so obviously weak as to undermine confidence in the jury’s

determination, i.e., the verdict seems “clearly wrong and manifestly unjust,”

or the proof of guilt, although legally sufficient, is nevertheless against the

great weight and preponderance of the evidence. Watson v. State , 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We will reverse a jury’s verdict

only if the record clearly shows that a different result is required to prevent

a manifest injustice. See id. at 416–17; see also Johnson v. State ,

23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In conducting a factual-sufficiency

review, we must also discuss the evidence that, according to the appellant,

most undermines the jury’s verdict. Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A jury is in

the best position to evaluate the credibility of witnesses, and we are required

to afford “due deference” to the jury’s determinations. Marshall v. State ,

210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury is free to accept or to

reject any or all of the evidence presented by either side. See Saxton v.

State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Reconciling conflicting

testimony is within the exclusive province of the jury. Goodman v. State ,

66 S.W.3d 283, 287 (Tex. Crim. App. 2001); see Cleveland v. State , 177

S.W.3d 374, 380 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

A. Possession

of a Controlled Substance

In support of

his third point of error, appellant argues that the contraband was not in plain

view; there was no odor of contraband in the vehicle; there was no contraband

or paraphernalia on appellant’s person; appellant was not under the influence

of narcotics; appellant did not attempt to flee, indicate a consciousness of

guilt, or make any furtive gestures; the amount of contraband was not an

inordinate amount; appellant made no incriminating statements connecting

himself to the contraband; appellant had no special connection to the contraband;

and there were no fingerprints or DNA of appellant found on the contraband.

Although

these circumstances support appellant’s position, other facts point to his

guilt. While conducting surveillance in a hot spot, Sergeant Richards saw what

he described as a narcotics transaction take place inside the Buick. After

Officer Chaffin arrived in the parking lot, also in an unmarked vehicle, both

Richards and Chaffin saw a man get out of appellant’s car and sprint back

inside the apartment complex. The officers described this behavior as a common

conclusion to a drug transaction.

Although

appellant was not the registered owner of the car, he was in sole possession of

the car at the time of the surveillance and the traffic stop. The car was in

his aunt’s name, and appellant stated that he was the owner of the Buick when

interviewed by the Harris County Pre-Trial Services Department. Appellant was

the only adult inside of the vehicle at the time of his arrest. The contraband

was hidden in a compartment underneath the dashboard, which was easily

accessible to the driver. The gap in the dashboard, under which the cocaine

was hidden, was clearly visible to the driver. Moreover, appellant had

$1,255.00 dollars in his pocket, with five hundred dollars folded and marked

separately.

Viewing

the evidence neutrally, we conclude that the evidence is not so obviously weak

such that the verdict is clearly wrong and manifestly unjust, nor was the

contradictory evidence so strong that the standard of proof beyond a reasonable

doubt could not have been met. Accordingly, we hold that the evidence is

factually sufficient to establish that appellant knowingly possessed the

cocaine.

B. Intent to Deliver

To

support appellant’s fourth point of error, he

specifically relies on the amount of cocaine recovered (4.2 grams), the

manner of packaging, the lack of items used in drug sales or transactions, the

area and location in which appellant was arrested, the lack of weapons in the

vehicle, the lack of evidence as to appellant’s drug use, and the lack of

evasive maneuvers exhibited by appellant upon detention and arrest.

Other

evidence, however, points to appellant’s guilt for intent to deliver cocaine.

Sergeant Richards testified that appellant’s observed activities were very

consistent with those associated with a narcotics transaction. Officer Chaffin

testified that the amount of narcotics indicated that it was more than a

usable, recreational amount. Appellant was carrying a large amount of cash

when arrested. Finally, Sergeant Richards testified that the lack of drug

paraphernalia found in the vehicle is consistent for narcotics dealers, not

users.

After neutrally

examining all the evidence, we conclude that the proof of guilt was not so

obviously weak as to undermine confidence in the jury’s determination, nor was

the contradictory evidence so strong that the standard of proof beyond a

reasonable doubt could not have been met, that appellant intended to deliver

the cocaine.

We overrule appellant’s

third and fourth points of error.

CONCLUSION

We affirm the judgment of the trial

court.

Sherry

Radack

Chief

Justice

Panel consists of

Chief Justice Radack and Justices Alcala and Bland.

Do not publish. See

Tex. R. App. P. 47.2( b ).

1 See Tex. Health & Safety

Code Ann . § 481.112(a), (d) (Vernon

2003).

2 Although the

necessary connection between the accused and the contraband was once referred

to as an “affirmative link,” we now simply refer to it as a “link.” See

Evans v. State , 202 S.W.3d 158 , 161 n.9 (Tex. Crim. App. 2006).

3 This rule

serves to protect the innocent bystander from conviction based solely upon his

fortuitous proximity to someone else’s drugs; it restates the common-sense

notion that even if a person jointly possesses property, such as a house or a

car, he may not necessarily jointly possess contraband found in that house or

car. Robinson v. State , 174 S.W.3d 320 , 325 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Poindexter v. State , 153 S.W.3d 402,

406 (Tex. Crim. App. 2005)).