Byron Jermaine Prophet v. State

Opinion issued January 14, 2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00862-CR

NO. 01-08-00863-CR

____________

BYRON JERMAINE PROPHET, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause Nos. 1155796 & 1155797

MEMORANDUM OPINION

Appellant, Byron Jermaine Prophet, was charged by indictment with possession

of more than one gram and less than four grams of phencyclidine (PCP). See Act of

May 29, 1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3586 , 3706-07

(amended 2009) (current version at Tex. Health & Safety Code Ann. § 481.115

(a) & (c) (Vernon Supp. 2009)). (1) Appellant was also charged by indictment with

possession with the intent to deliver more than four grams but less than two hundred

grams of cocaine. See Act of May 22, 2001, 77th Leg., R.S., ch. 1188, § 2, 2001 Tex.

Gen. Laws 2691 (amended 2009) (current version at Tex. Health & Safety Code

Ann. § 481.112 (a) & (d) (Vernon Supp. 2009)). (2) The indictment for possession with

the intent to deliver cocaine also alleged that appellant used a handgun during the

commission of the offense. The two causes were tried together. A jury convicted

appellant of possession of PCP and possession with the intent to deliver cocaine.

However, the jury found the special issue alleging the use of deadly weapon not true.

The jury assessed punishment at two years in prison for the possession of PCP

conviction and sixteen years in prison for the possession with intent to deliver

cocaine conviction. On appeal, appellant argues that the evidence was legally and

factually insufficient to support his convictions. We affirm.

Background

On February 26, 2008, Officer Goines, a Houston Police Department (HPD)

undercover officer in the Narcotics Division, obtained a search warrant for the

residence located at 5603 Elmlawn. The next day, Officer Goines conducted visual

surveillance of the property for approximately thirty minutes from a pickup truck

parked across the street. Officer Goines observed a small-framed black man

approximately forty-five years old in the front yard of the residence with a pit bull

dog. Several minutes later, appellant arrived in a white Buick sedan. Officer Goines

observed appellant enter the garage and use a key to unlock the burglar bars covering

the door that led from the garage into the residence. Officer Goines saw appellant

enter the residence. After about five minutes, appellant exited through the same door

in the garage, locking the burglar bars behind him. Officer Goines testified that

appellant walked out of the garage into the driveway and was about to leave but, then,

stopped to converse with another man who had just arrived in front of the residence.

The second man started looking under the hood of the white car, and appellant went

back into the house a second time. Again, appellant entered through the garage and

unlocked the burglar bars covering the door. Appellant was inside the house for

approximately eight minutes, and then, he exited the residence through the garage

door. Officer Goines did not observe him lock the burglar bars as he left the house

this second time. Appellant got a chair and sat "right at the edge of the garage."

Officer Goines testified that he never saw anyone but appellant enter the house while

he was conducting surveillance.

Later, a woman walked over to the house from across the street and started

talking with the men. Officer Goines believed that the woman saw him watching the

residence and was warning the men of his presence. Based on that belief, Officer

Goines decided to gather his raid team and execute the warrant. A raid team of

approximately six officers was waiting in a van several blocks away. Officer Goines

drove his truck to the team's location and joined the other officers in the van. Officer

Goines testified that it was probably three or four minutes from the time he

discontinued surveillance until he returned in the van with the raid team.

When the raid team approached, appellant got up from where he was sitting and

ran into the garage towards the door leading into the house. He was ordered to lie on

the ground and complied. The small-framed black man, Darrell Prophet, ran around

the side of the house towards the rear of the house where he was caught. The man

who was working on the car, Gary Pugh, froze, and he was ordered to lie on the

ground. The woman, Virgil, ran into the garage and was found hiding in the garage

closet.

The raid team entered the house through the door inside the garage that Officer

Goines had observed appellant use. First, officers "cleared" the house and found

nobody inside. The door from the garage led into the kitchen and den area. The den

opened up to the kitchen, separated only by the kitchen counter. In plain view on the

kitchen counter, the officers found a plastic bag containing five crack cocaine

cookies, a black tray with loose rocks of crack cocaine, a vanilla extract bottle

containing 1.06 grams of PCP, a small bag of marijuana, a black briefcase that

contained a large sum of cash, a scale, a knife, and appellant's Texas driver's license.

Officer Goines testified that appellant's license was found on the counter right next

to the contraband. The currency in the briefcase was in small denominations of ones,

tens, and twenties.

Officer Goines had been a member of the HPD Narcotics Division for twenty-four years. Based on this experience, Officer Goines explained for the jury the

meaning of the drug terminology he used and significance of what was found. He

explained that a "cookie" is made from twenty-eight grams (one ounce) of cocaine

in a powder form that has been converted into crack cocaine. It is referred to as a

"cookie" because it looks like a big, thick vanilla cookie. The cookie can be broken

into smaller pieces, referred to as crack cocaine "rocks." A "rock" weighs from 0.2

to 0.4 grams and is the size used for personal consumption. Officer Goines said that

a gram of crack cocaine has a street value of about $100. The cookie (twenty-eight

grams of crack cocaine) is usually sold wholesale for about $600 to street dealers who

break up the cookie into rocks to sell individually. Officer Goines estimated that a

dealer would make around $2800 from the rocks from one cookie.

Officer Goines explained that PCP is normally sold in two-gram bottles for a

value of around $350. PCP is in a liquid form, has a distinct odor, and is normally

carried in vanilla extract bottles on the street. PCP is usually used as a "lace,"

meaning that cigarettes or marijuana are dipped in the liquid PCP.

A total of 131.5 grams of cocaine and 1.06 grams of PCP was found at the

house. Officer Goines testified that 131.5 grams of cocaine has a street value of

around $13,000. Officer Goines, as well as other narcotics officers who were part of

the raid team, testified that the amount of cocaine was consistent with the sale of

narcotics, and he opined that it was not possessed for personal use.

The raid team found two loaded firearms in the den: a shotgun and a rifle.

Officer Goines testified that it was common to find a drug dealer in possession of a

handgun but not rifles and shotguns. The types of firearms found were significant

because, as compared with handguns, they have wider range and the ability to

penetrate through police vests. Officer Goines testified that the type of firearms

found "are the ones that will kill police officers."

Officer Goines opined that this house was used as a "dope house," primarily

for the purpose of selling and storing narcotics. The numbers indicating the street

address had been removed from the front of the house. Officer Goines testified that

removing the numbers was a common practice among drug dealers because it

prevents the neighbors from knowing the correct address to report activity, and it

prevents the police from finding the correct location. The front door of the house,

also covered in burglar bars, led into a living room. Two pit bull dogs were inside the

living room. There was an interior door leading from the living room into the

den/kitchen area, which was also covered with burglar bars. Officer Goines opined

that the interior burglar bars were significant because they provided another level of

protection. Officer Goines testified that police officers normally make entrance to a

house through the front door. If the front door at this location were used, officers

would have to make entry through the burglar bars on the front door, get past the two

pit bulls in the living room, and remove the burglar bars in the living room leading

into the kitchen/den area, which would allow time for a person inside the kitchen to

flee or to destroy the narcotics.

The house was sparsely furnished, very dirty, and in a state of disarray. Some

of the rooms were covered in dog feces, and Officer Salter described the terrible

stench. Officers found no food, clothing, or personal items (other than appellant's

driver's license) in the house. Officer Goines and two other narcotics officers who

were part of the raid team opined that no one lived in the house and that it was strictly

used to store and sell narcotics.

Officers found keys fitting the burglar bars in appellant's front pants pocket.

Appellant was also the only person Officer Goines observed entering the house. No

one else at the scene had keys to the house.

Officer Goines testified that when someone is taken into custody it is standard

police procedure to tow the person's vehicle and to board up the person's residence

to secure his property. When Officer Goines advised appellant of this procedure,

appellant asked that the officers instead leave the vehicle and the residence in the

control of Darrell Prophet.

Appellant testified that he did not arrive at the residence in the white Buick but,

rather, rode his dirt bike. He testified that he went to the house looking for his uncle,

Darrell Prophet, to fix his dirt bike. Appellant said that when he arrived at the house

his uncle was working on the white Buick in the driveway. Appellant stated that

Louis and Gary Pugh were present at the house when he arrived, and he believed that

the house at 5603 Elmlawn was Louis's house.

Appellant testified that he did not go into the house that day and had never

been in the house. On the day in question, he entered the garage twice to retrieve

tools. Appellant said that when he was searched, nothing was found in his pockets.

Specifically, the keys to the house were not found in his pocket. Appellant testified

that the identification card found inside the house was left at his grandmother's

house. He could not explain how it got into the house at 5603 Elmlawn. He had

never seen the white car before that day and had never driven it. He never asked

Officer Goines to leave the vehicle and house in Darrell Prophet's control. Louis

Pugh and Gary Pugh were friends with his uncle, and he did not hang out or go

anywhere with either of them.

Appellant admitted that he had two prior convictions for possession of less than

one gram of cocaine, a conviction for possession of marijuana, and a conviction for

burglary of a building.

In rebuttal, the State called Officer Barbara Gastmyer, who had twenty-seven

years experience with the Houston Police Department. Officer Gastmyer testified that

on June 29, 2007, eight months prior to the offense in question, she stopped appellant

for a traffic violation. Appellant was driving the same white Buick sedan that Officer

Goines observed him arrive in at 5603 Elmlawn. Officer Gastmyer said that Louis

Pugh was a passenger in the vehicle at the time of the stop. When she asked appellant

about the ownership of the vehicle, he said that his mother had bought the vehicle and

the title was being changed over to appellant's name. Officer Gastmyer found

cocaine in the trunk of the car, and appellant was charged with possession of a

controlled substance. At the time of the stop, Louis Pugh had in his possession a

crack pipe that tested positive for crack cocaine.

Analysis

Appellant contends that the evidence presented at trial is legally and factually

insufficient to prove that he possessed PCP, that he possessed cocaine, and that he

intended to deliver the cocaine.

A. Standard of Review

In our legal-sufficiency review, we view the evidence in the light most

favorable to the verdict and ask whether any rational trier of fact could have found

the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia , 443

U.S. 307, 319 (1979); Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).

The standard is the same for both direct and circumstantial evidence cases. King v.

State , 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). In a legal sufficiency challenge,

we do not re-weigh the evidence. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App.

2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this was the function of the trier of fact. See

Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

In our factual-sufficiency review, we view all of the evidence in a neutral light.

Cain v. State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set aside the

verdict only if (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust or (2) the proof of guilt is against the great weight and

preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App.

2000). Under the first prong of Johnson , we cannot conclude that a conviction is

"clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence

admitted, we would have voted to acquit had we been on the jury. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson ,

we also cannot declare that a conflict in the evidence justifies a new trial simply

because we disagree with the jury's resolution of that conflict. Id. Before finding

that evidence is factually insufficient to support a verdict under the second prong of

Johnson , we must be able to say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the jury's verdict. Id. In

our factual-sufficiency review, we must also discuss the evidence that, according to

appellant, most undermines the jury's verdict. Sims v. State , 99 S.W.3d 600, 603

(Tex. Crim. App. 2003).

B. Unlawful Possession of a Controlled Substance

A person commits an offense if he knowingly or intentionally possesses a

controlled substance. See Tex. Health & Safety Code Ann. §§ 481.112 , 481.115.

When an accused is charged with unlawful possession of drugs, the State must prove

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

contraband and (2) the accused knew the object he possessed was contraband.

Poindexter v. State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The law does not

require exclusive possession of the drug. Roberson v. State , 80 S.W.3d 730, 735 (Tex.

App.--Houston [1st Dist.] 2002, pet. ref'd) (citing Harvey v. State, 487 S.W.2d 75,

77 (Tex. Crim. App. 1972)). "The mere fact that a person other than the accused

might have joint possession of the premises does not require the State to prove that

the defendant had sole possession of the contraband, only that there are affirmative

links between the defendant and the drugs such that he, too, knew of the drugs and

constructively possessed them." Poindexter , 153 S.W.3d at 412 (emphasis in

original).

"When the accused is not in exclusive possession of the place where the

substance is found, it cannot be concluded that he had knowledge of and control over

the contraband unless there are additional independent facts and circumstances which

affirmatively link him to the contraband." Poindexter , 153 S.W.3d at 406 . Evidence

that affirmatively links an accused to the substance is proof that he possessed it

knowingly. Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Affirmative links may be shown by direct or circumstantial evidence, but in either

case it must establish to the requisite level of confidence that the accused's

connection with the drug was more than just fortuitous. Poindexter , 153 S.W.3d at

405 -06 (citing Brown , 911 S.W.2d at 747 ). As explained in Poindexter , "The

'affirmative links rule' is designed to protect the innocent bystander from conviction

based solely upon his fortuitous proximity to someone else's drugs." Id. at 406 .

"Mere presence at the location where drugs are found is thus insufficient, by

itself, to establish actual care, custody, or control of those drugs." Evans v. State , 202

S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or proximity, when

combined with other evidence or "links", may well be sufficient to establish that

element beyond a reasonable doubt. Id. It is not the number of links that is

dispositive, but rather the logical force of all of the evidence. Id. The following non-exclusive "affirmative links" have been recognized as sufficient, either singly or in

combination, to establish a person's connection to contraband:

(1) the defendant's presence when a search is conducted; (2) whether the

contraband was in plain view; (3) the defendant's proximity to and the

accessibility of the narcotic; (4) whether the defendant was under the

influence of narcotics when arrested; (5) whether the defendant

possessed other contraband or narcotics when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether the

defendant attempted to flee; (8) whether the defendant made furtive

gestures; (9) whether there was an odor of contraband; (10) whether

other contraband or drug paraphernalia were present; (11) whether the

defendant owned or had the right to possess the place where the drugs

were found; (12) whether the place where the drugs were found was

enclosed; (13) whether the defendant was found with a large amount of

cash; and (14) whether the conduct of the defendant indicated a

consciousness of guilt.

Id. at 162 n.12.

Legal Sufficiency

Appellant contends that the evidence is legally insufficient to show that he

knowingly possessed PCP and cocaine. Specifically, appellant argues that the

evidence is insufficient to show the requisite link between appellant and the

contraband to establish actual care, custody, or control of those drugs. (3)

Appellant was the only person Officer Goines observed entering the residence.

Officer Goines testified that appellant entered the house twice through door from the

garage. Both times, Officer Goines observed appellant unlock the burglar bars

covering the door. Appellant was found in possession of a key that unlocked the

burglar bars. No other persons were observed entering the house or were found in

possession of keys to the house. Officer Goines testified that appellant was inside the

house for approximately five minutes the first time and eight minutes the second time.

The door that appellant was observed using entered into the kitchen/den area of the

house. The PCP and cocaine was found on the kitchen counter in plain view. The

only piece of personal property found in the house was appellant's identification card,

which was found on the kitchen counter next to the cocaine, PCP, and brief case

holding money. Also in plain view on the kitchen counter, the officers found

marijuana and a scale probably used for measuring drugs. When informed that his

vehicle would be towed to secure his property while he was in custody, appellant

instructed officers to leave the vehicle and the residence in the control of Darrell

Prophet.

Several of the non-exhaustive factors mentioned in Evans are present in this

case. See Evans , 202 S.W.3d at 162 . The facts tending to connect appellant with the

PCP and cocaine include: (1) appellant was present at the house when the search was

conducted; (2) the contraband was in plain view; (3) appellant attempted to flee when

the raid team arrived; (4) other contraband and drug paraphernalia was present on the

kitchen counter where the PCP and cocaine were found; (5) appellant was the only

person observed entering the house, was the only person found with a key to the

house, and told officers to give possession of the house to Darrell Prophet, indicating

that appellant had a right to possess the place where the drugs were found; (6) the

place where the drugs were found was enclosed and secured by burglar bars; and (7)

a large amount of cash was found with the contraband in plain view.

In support of his legal insufficiency argument, appellant points to evidence that

was not present in this case. Although some of the Evans factors are not present, it

is well established that the absence of certain links does not weigh against those that

are present. See Evans , 202 S.W.3d at 162 ; Robinson v. State , 174 S.W.3d 320, 326

(Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).

Additionally, appellant argues that the present case is similar to Allen v. State .

249 S.W.3d 680 (Tex. App.--Austin 2008, no pet.). In Allen , the court found that

evidence was legally insufficient to support the appellant's conviction for possession

where there was no evidence indicating that the appellant lived at the apartment

where cocaine was found, no cocaine was found on the appellant's person, the

appellant did not try to flee from the premises or attempt to hide any items when

officers entered, the appellant was cooperative with the police and made no

incriminating statements, and most of the cocaine was discovered in a plastic bag

within a closed dog food bag in the dining room. See id. Allen was seated on a

couch in the living room with two small children when officers entered and stated that

she was at the apartment babysitting for the person who resided in the apartment. See

id.

Allen is distinguishable from the present case. Unlike Allen , where most of the

contraband was found inside closed cabinets and buried inside a dog food bag, here,

the contraband was found in plain view in an area of the house that appellant was

observed entering. Also, the fact that appellant did not reside at 5603 Elmlawn does

not have the same significance as in Allen because, here, no one resided at the house

and appellant was the only person present with keys to the house.

Appellant misstates the record when he argues that his fingerprints were not

present on the kitchen cabinets in the area where the police officers found the

contraband. The record shows that officers did not collect fingerprints. Unlike Allen ,

where the contraband was found inside cabinets, the contraband here was on the

kitchen counter in plain view. Thus, it was unnecessary for investigators to collect

fingerprint evidence from cabinets to show that appellant was aware of the drugs.

Viewing the evidence in the light most favorable to the jury's verdict, we

conclude that the jury could have reasonably inferred from the cumulative force of

the evidence that appellant exercised actual care, custody, or control of the

contraband. See Evans , 202 S.W.3d at 166 (concluding that evidence, "when viewed

in combination and its sum total, constituted amply sufficient evidence"). We

conclude that the evidence is sufficient for a rational trier of fact to have found the

elements of possession of PCP and cocaine beyond a reasonable doubt. See Tex.

Health & Safety Code Ann. §§ 481.112 , 481.115.

We overrule appellant's first and second issues.

Factual Sufficiency

In his fourth and fifth issues, appellant contends that the evidence is factually

insufficient to show that he knowingly possessed PCP and cocaine. In support of his

factual insufficiency argument, appellant points to his own testimony contradicting

the testimony of the officers. However, the fact that appellant gave conflicting

testimony does not make the testimony of the officers factually insufficient because

the fact-finder alone determines the weight to be given contradictory testimonial

evidence. See Cain , 958 S.W.2d at 408-09 . "In deciding whether the evidence is

sufficient to link the defendant to contraband, the trier of fact is the exclusive judge

of the credibility of the witnesses and the weight to be given to their testimony."

Poindexter , 153 S.W.3d at 406 . Here, the fact-finder was able to make a

discriminating assessment of the facts, and it found that the State proved appellant's

possession of cocaine beyond a reasonable doubt.

Additionally, appellant points out links which were not present. As discussed

above, the absence of certain links does not weigh against those that are present. See

Evans , 202 S.W.3d at 162 ; Robinson v. State , 174 S.W.3d 320, 326 (Tex.

App.--Houston [1st Dist.] 2005, pet. ref'd).

When viewed in a neutral light, the evidence shows that (1) appellant was

present at the house when the search was conducted; (2) the contraband was in plain

view; (3) appellant attempted to flee when the raid team arrived; (4) other contraband

and drug paraphernalia was present on the kitchen counter where the PCP and

cocaine were found; (5) appellant was the only person observed entering the house,

was the only person found with a key to the house, and told officers to give

possession of the house to Darrell Prophet, indicating that appellant had a right to

possess the place where the drugs were found; (6) the place where the drugs were

found was enclosed and secured by burglar bars; and (7) a large amount of cash and

appellant's identification card were found with the contraband in plain view. The

evidence, when viewed in combination and its sum total, is sufficient to connect

appellant to the actual care, custody, control or management of the PCP and cocaine

found in house. See Evans , 202 S.W.3d at 166 . Weighed in a neutral light, the

evidence is not so weak that the verdict is clearly wrong and unjust. Laster v. State ,

275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Also, there is no objective basis in the

record to conclude that the great weight and preponderance of the evidence

contradicts the jury's verdict. Watson , 204 S.W.3d at 417 . We hold the evidence is

factually sufficient to support the conviction for possession of PCP and cocaine. See

Tex. Health & Safety Code Ann. § 481.115 .

We overrule appellant's forth and fifth issues.

C. Intent to Deliver a Controlled Substance

In his third and sixth issues, appellant argues that the evidence is legally and

factually insufficient to prove that he intended to deliver the cocaine. While he lists

these issues, appellant provides no argument regarding the evidence showing intent

to deliver.

To prove the offense of possession with the intent to deliver, the State must

show, 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), 481.112(a) (Vernon Supp. 2009). Intent to deliver a controlled

substance can be proved by circumstantial evidence, including evidence regarding an

accused's possession of the contraband. Utomi v. State , 243 S.W.3d 75, 82 (Tex.

App.--Houston [1st Dist.] 2007, pet. ref'd). An oral expression of intent is not

required. Id . Additional factors that courts have 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. Id. (citing Williams v. State , 902 S.W.2d 505, 507

(Tex. App.--Houston [1st Dist.] 1994, pet. ref'd)). Additionally, expert testimony

by experienced law enforcement officers may be used to establish an accused's intent

to deliver. Id. at 82-83 (relying on police officer's testimony that police confiscated

approximately 35 grams of crack cocaine, valued at approximately $3,500, which was

not an amount consistent with personal consumption); Mack v. State , 859 S.W.2d

526, 529 (Tex. App.--Houston [1st Dist.] 1993, no pet.) (relying, in part, on police

officer's testimony "that circumstances logically indicated appellant's intent to deal,

rather than use, the crack cocaine he possessed").

Legal Sufficiency

Here, appellant was arrested at a residence that experienced police officers

opined was a "dope house." Officers testified that it was common for drug dealers

to sell and store drugs at a location other than their own residences. They testified

that the address numbers were taken off the house and the doors to the areas where

drugs were kept were covered in burglar bars and protected by pit bull dogs, practices

common among drug dealers. Officers confiscated 131.5 grams of cocaine in the

form of five cookies with a street value of around $13,000. Officers testified that

crack cocaine is normally consumed in smaller pieces called "rocks," weighing

around 0.2 to 0.4 grams. A dealer normally buys the crack cocaine wholesale in the

form of a 28 gram cookie, and breaks the cookie into small pieces to sell individually.

Officer Goines testified that consumption of anything over a gram of crack cocaine

would cause a person to overdose and possibly die and that consumption of 131

grams would definitely cause death. He testified that five cookies of crack cocaine,

a scale, weapons, and a large briefcase full of money was consistent with the sale of

narcotics.

Viewing the foregoing evidence in the light most favorable to the verdict, we

conclude that a jury could have found beyond a reasonable doubt that appellant

intended to deliver the crack cocaine. See Evans , 202 S.W.3d at 161 .

We overrule appellant's third issue.

Factual Sufficiency

In his brief, appellant lists factual insufficiency of the evidence to prove intent

to deliver, but he provides no argument regarding that element. All of appellant's

argument is directed at the sufficiency of the evidence of knowing possession.

As addressed above, the only evidence that undermines the verdict is

appellant's denial that he possessed the cocaine. The jury, however, was free to

disbelieve appellant's testimony, and we may not disturb the jury's credibility

determination on appeal. See Cain , 958 S.W.2d at 408-09 .

Thus, after neutrally examining all the evidence, we find that the proof of

appellant's intent to deliver was not so weak that the verdict is clearly wrong or

manifestly unjust; nor is the verdict against the great weight and preponderance of the

evidence. See Johnson , 23 S.W.3d at 10-11 .

We overrule appellant's sixth issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Keyes, Alcala and Hanks.

Do not publish. See Tex. R. App. P. 47.2(b).

1. The 81 st Texas Legislature amended Texas Health & Safety Code Section 481.115, effective

September 1, 2009. The amendments do not affect the disposition of this case.

2. The 81 st Texas Legislature amended Texas Health & Safety Code Section 481.112, effective

September 1, 2009. The amendments do not affect the disposition of this case.

3. Appellant does not dispute the weight of the contraband found or the determination that the

substances found were controlled substances.