No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS CHARLES EARL SMITH, APPELLANT THE STATE OF TEXAS, APPELLEE

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 01/24/ :00 Lisa Matz, Clerk CHARLES EARL SMITH, APPELLANT V. THE STATE OF TEXAS, APPELLEE On appeal from Criminal Court No. 2, Dallas County, Texas In Cause No. F I STATE S RESPONSE BRIEF Counsel of Record: Craig Watkins Criminal District Attorney Dallas County, Texas Rebecca D. Ott Assistant Criminal District Attorney Appellate Division 133 N. Riverfront Boulevard, LB-19 Dallas, Texas (214) (Phone) (214) (Fax) State Bar No Attorneys for the State of Texas Oral argument is requested, but only if Appellant is also requesting oral argument.

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...ii SUMMARY OF THE CASE...1 STATEMENT OF THE FACTS...1 SUMMARY OF STATE S RESPONSIVE ARGUMENT...3 Appellant s sole point of error entitles him to no relief on appeal. The record contains legally sufficient evidence to establish that Appellant is guilty of possession with intent to deliver cocaine. STATE S REPLY TO APPELLANT S POINTS OF ERROR...3 Standard of Review...4 Legal Authority...6 Application...8 CONCLUSION AND PRAYER...13 CERTIFICATE OF SERVICE...14 i

3 CASES INDEX OF AUTHORITIES Adames v. State, No. PD , 2011 Tex. Crim. App. LEXIS 1346 (Tex. Crim. App. Oct. 5, 2011)...10 Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011)...16 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)...9 Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)...9 Deshong v. State, 625 S.W.2d 327 (Tex. Crim. App. 1981)...11 Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)... 12, 13, 14 Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004)...10 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)...10 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)...9, 10, 16 Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993)...9 Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008)...9, 16 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)...9 Lawrence v. State, 211 S.W.3d 883 (Tex. App. Dallas 2006), aff d, 240 S.W.3d 912 (Tex. Crim. App. 2007)...10 Lee v. State, 952 S.W.2d 894 (Tex. App. Dallas 1997, no pet.)...16 Lincoln v. State, 307 S.W.d 921 (Tex. App. Dallas 2010, no pet.)...9, 16 Matson v. State, 819 S.W.2d 839 (Tex. Crim. App. 1991)...10 Patterson v. State, 138 S.W.3d 643 (Tex. App. Dallas 2004, no pet.)...11 Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005)...11, 12 Roberts v. State, No CR, 2011 Tex. App. LEXIS (Tex. App. Dallas 2011, no pet.) (not designated for publication)...12 ii

4 Sneed v. State, No CR, 2011 Tex. App. LEXIS 6641 (Tex. App. Dallas Aug. 19, 2011, no pet.) (not designated for publication)...16 Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003)...16 Taylor v. State, 106 S.W.3d 827 (Tex. App. Dallas 2003, no pet.)...13 Villa v. State, No CR, No CR, No CR, 2011 Tex. App. LEXIS (Tex. App. Dallas Dec. 30, 2011, no pet. h.) (not designated for publication)...11 Wingfield v. State, 197 S.W.3d 922 (Tex. App. Dallas 2006, no pet.)...13, 14 ARTICLES, CODES, RULES, and CONSTITUTIONS Tex. Health & Safety Code Ann (a), (d) (West 2011)...11 iii

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in response to the brief filed by Appellant, Charles Earl Smith. SUMMARY OF THE CASE Appellant was indicted in Cause No. F I for possession with intent to deliver cocaine in the amount of four grams or more but less than 200 grams. (CR: 5). 1 Appellant entered a plea of not guilty and waived his right to a jury trial. (CR: 26, 27; RR2: 8). Appellant was found guilty, and due to the existence of two prior felony convictions, which the State alleged for enhancement, Appellant was sentenced to twenty-five years confinement. (CR: 28 29; RR3: 47 48). STATEMENT OF FACTS Officer Chau Nguyen ( Officer Nguyen ), a thirteen-year veteran of the Dallas Police Department ( DPD ), testified that he had been a narcotics officer for three and a half years at the time of Appellant s trial. (RR2: 8 9). On October 4, 2010, Officer Nguyen executed a search warrant at 2719 Grand Avenue, Dallas, Texas. (RR2: 10). Officer Nguyen applied for the search warrant himself, after conducting surveillance on the location. (RR2: 10 11). Officer Nguyen personally observed the Appellant on the front porch of the residence located at 2719 Grand Avenue on two occasions prior to October 4, 2010, [t]he day before the execution of [the] search warrants and the day prior. (RR2: 11 12). Officer Nguyen testified that when he entered the house, after SWAT had cleared the location, he saw packaged crack cocaine and loose crack cocaine on top of the table in the hallway between the kitchen and the bedroom, in plain view of all. (RR2: 12 13; SE: 8). 1 CR refers to the clerk s record, RR_ refers to the reporter s record and volume of the reporter s record, and SE refers to State s Exhibits. 1

6 SWAT removed more than twenty people from inside the house. (RR2: 13). Officer Nguyen characterized the house at this location as a trap house a house used primarily for the distribution of drugs. (RR2: 13). There was drug paraphernalia present throughout the house, including empty baggies, similar to what the drugs were packaged in. (RR2: 13). There was also a cooler-type object found near the table containing glass pipes, lighters, a brillo pad and money. (RR3: 18; SE: 13, 14). In the kitchen area, there was a bag next to the blue cooler that had marijuana inside it. (RR2: 19). The drugs found at the scene were field tested, and tested positive for cocaine. (RR2: 22; SE: 28, 30). Officer Nguyen stated that money in the amount of $1,213 was seized from the scene. (RR2: 24; SE: 35). The breakdown in denominations was as follows: sixty-eight $1 bills, thirty-three $5 bills, fourteen $10 bills, and thirty-two $20 bills. (RR2: 26). Officer Nguyen testified that money found in these denominations was in trap houses. (RR2: 27). Officer Nguyen did not see any of the people in the house on the day the search warrant was executed, they had all been moved outside by the time he arrived. (RR2: 32). Pictures were taken of the Appellant at the trap house. (RR: 21 21, 22 23; SE: 31, 32, 33). Officer Nguyen identified Appellant as the individual arrested on October 4, (RR2: 23). He did not know where Appellant was in the house, based on his own personal knowledge. (RR2: 32 33). Officer Nguyen also stated that the description of the suspect in the search warrant black male, age fifty to fifty-five, six feet tall, two-hundred-fifty pounds did not fit Appellant to the T. (RR2: 33 34). Officer Nguyen testified that other individuals were arrested at the scene, a Mr. Davis and Mr. Horton; however, they were not charged with drug related offenses. (RR2: 35). Officer Nguyen testified that Appellant was arrested for all of the drugs found in the house because he 2

7 was standing right next to where all the drugs were found when the SWAT officers entered the home. (RR2: 36). Officer Nguyen testified that the offense report seemed to reflect that James Beachum was also standing near the drugs when SWAT entered. (RR2: 37). Officer Nguyen testified that they were never able to determine who the owner of the residence was. (RR2: 37 38). Appellant was arrested because he had paperwork on him that listed 2719 Grand Avenue as his residence. (RR2: 36). In the offense report generated that day, David Payton and Bradford Davis had their addresses listed as 2719 Grand Avenue. (RR2: 39 40). Officer Nguyen testified that this was because Payton said he was homeless, and that they generally list a homeless person s address as the location they were found. (RR2: 39). Appellant s address was listed on the offense report as 2828 Hickory, an address which Officer Nguyen testified, was given to them by the Appellant. (RR2: 39). Officer Nguyen stated that this report contained self-report information, so it contained addresses that the suspects provided. (RR2: 41). Officer Nguyen testified that when he was conducting surveillance on the location the Appellant was the only individual he saw there, and he was certain that Appellant was the man he saw on the days prior to executing the search warrant. (RR2: 41). Officer Samuel McDonnold ( Officer McDonnold ), a member of DPD for fourteen years, was a member of the SWAT team at the time of Appellant s arrest. (RR2: 42 43). Officer McDonnold was part of the team that helped execute the search warrant by breaching the back door and arresting any individuals found in the back yard. (RR2: 43). When the warrant was executed, Officer McDonnold stated that the back door had burglar bars but no mesh, and the interior door was open. (RR2: 43). Officer McDonnold could see that there were numerous individuals inside. (RR2: 43 44). While a fellow SWAT member pried the door open, Officer McDonnold ordered everybody in the room, which turned out to be the kitchen, to get on the 3

8 ground. (RR2: 44). Officer J.T. Curtis was the first person to make entry into the kitchen and Officer McDonnold was the third person to make entry. (RR2: 45, 48). Officer McDonnold testified that the Appellant was, just this side of the cooler, to the right of the opening, referring to State s Exhibit 17. (RR2: 46; SE: 17). Appellant was in the walkway leading to the hallway. (RR2: 46). Another man was standing in this doorway area, James Beachum, going from the dining room into the living room. (RR2: 46, 47). Once Officer McDonnold was in the residence, he was able to see that Appellant was the closest person to the table with the drugs on it. (RR2: 47). James Beachum was closer to the living room. (RR2: 47; SE: 40). There were approximately nine individuals in the house, between the kitchen, dining room and living room. (RR2: 50). Everyone inside the house went to the ground in essentially the same place they had been standing. (RR2: 51 52). Sergeant Nancy Bardin ( Sergeant Bardin ), a member of the DPD for thirty and one-half years, testified that she supervised a street squad in the Narcotics Division. (RR2: 54). Sergeant Bardin had numerous experiences investigating drug-trafficking operations in the Dallas area. (RR2: 54). Sergeant Bardin assisted in executing the search warrant by helping to uncover and catalog evidence. (RR2: 55). Sergeant Bardin was assigned the hallway area where there was a table at the center of the residence where the kitchen meets a hallway that leads back to a bathroom and bedroom. (RR2: 55). Sergeant Bardin found a bag that had money and additional cocaine in it. (RR2: 55; SE: 10, 11). A cup on the floor near the table also had money in it. (RR2: 56; SE: 10, 11, 12). There were packages of cocaine, loose cocaine and drug paraphernalia on the table. (RR2: 56; SE: 8, 9). A pink cooler was also found, containing additional drug paraphernalia glass vials, lighters, and some money. (RR2: 57; SE: 13, 14). 4

9 Money in the amount of $843 was found in the hallway area that Sergeant Bardin investigated. (RR2: 57). The money was not in plain view. (RR2: 58). Sergeant Jeffery Kaiser ( Sergeant Kaiser ), who was employed by the DPD for twenty years, testified that he was a supervisor in the Narcotics Division. (RR2: 60). Sergeant Kaiser found two prescription receipts on Appellant listing 2719 Grand Avenue, Dallas, Texas as Appellant s address. (RR2: 61 62; SE: 38, 39). When Sergeant Kaiser found the prescription receipts, he was conducting a search incident to Appellant s arrest. (RR2: 62). The two prescription receipts were dated August 9, (RR2: 63; SE: 38, 39). Sergeant Kaiser also searched a backpack that contained Appellant s wallet. (RR2: 63). Sergeant Kaiser noted that [t]he backpack was near the table where there was drugs in plain view. (RR2: 63). The wallet contained $370 in cash. (RR2: 64). There were dirty clothes in the backpack as well. (RR2: 65). Sergeant Kaiser determined the wallet belonged to the Appellant because it contained items with his name on them, though Sergeant Kaiser could not remember what the items were. (RR2: 65). Sergeant Kaiser believed it was like a card or something with his name on it. (RR2: 65). Any personal belonging would have been returned to Appellant. (RR2: 65). Sergeant Kaiser did not observe any of the suspects when they were in the house, they had already been moved outside when Sergeant Kaiser began his investigation. (RR2: 67). Lauren Woolridge, a drug chemist with the Southwestern Institute of Forensic Sciences, testified that she examined the evidence in Appellant s case. (RR3: 5, 7). Woolridge analyzed the contents of thirteen Ziploc bags that each contained a hard off-white material. (RR3: 9). The substance in all of the bags tested was the same. (RR3: 9). Ms. Woolridge testified that the thirteen Ziploc bags contained cocaine and levamisole. (RR3: 10). The [a]mount of cocaine 5

10 found was 4.1 grams or 68 percent, and [t]he total weight of the material, including adulterants and dilutants, was 6.0 grams. (RR3: 10). Sergeant Barry Ragsdale ( Sergeant Ragsdale ), a twenty-one year veteran of the DPD, with substantial experience in narcotics investigations, testified that the individual bags of rock cocaine were indicative of intent to deliver, and not personal use. (RR3: 15, 17). After reviewing State s Exhibits 8, 10, 13, and 36, Sergeant Ragsdale testified to the following: These items are indicative of a drug-distribution enterprise. This is paraphernalia. You have a box of the little rose-glass crack pipes here. The Chore Boy, which is the scouring pad, that would be used as the filter in the glass crack pipe, and the lighter, which is the flame. You see the money, what appears to be maybe drug notes, as well as small blue bags similar to these crack bags with the money there. And money laying in other places. You have a cut plate. Looks like the location where they were bagging up the crack cocaine. (RR3: 18). Sergeant Ragsdale further stated that an individual would not usually package the drugs into smaller bags if it is for personal use; instead, this is indicative of distribution. (RR3: 1 20). Appellant admitted a water bill into evidence covering the months of August, September and October 2010 for the residence located at 2719 Grand Avenue. (RR3: 22). The bill was addressed to Maggie Jordan. (RR3: 22). Appellant testified that the police came early on October 4, (RR3: 23 24). Appellant stated he was just off the couch, where he had been sleeping, and was eating breakfast. (RR3: 23 24). Appellant later testified that when the police arrived he was sleeping, and he heard some kicking on the door, some commotion going on. When I got up, the back door opened and two officers came in the back door. (RR3: 25). Appellant had not been at the house all night, but stated he arrived at 5 or 6 that morning. (RR3: 24). Appellant went with his friends Larry and Ernest who wanted to get high. (RR3: 24). Appellant seen the chili.i 6

11 was eating and fell asleep for awhile. (RR3: 24). He fell asleep [o]n the couch by the back door. (RR3: 24). Appellant testified that he slept on a couch where kitchen was labeled on the diagram, State s Exhibit 34. (RR3: 25; SE: 34). Appellant had been to the house before, and testified that Ernest, he stays there, and Brad guy named Brad and Maggie, but it was Maggie s house. (RR3: 25). When asked if he had been near the table containing the drugs, Appellant responded: No, no kind of way. The table is way up in the bathroom, by the bathroom. (RR3: 26). A girl named V, or Virginia was the one selling drugs. (RR3: 26). Appellant testified that he was not selling drugs and does not smoke drugs because he can t. (RR3: 26). Appellant had money in his wallet, which he testified was in his pocket. (RR3: 26). Appellant had about $300 in his wallet. (RR3: 27). Appellant testified he earned the money from doing yards. (RR3: 27). Appellant testified that the prescription receipts had 2719 Grand Avenue as his residence because: I know Ernest. I go there sometimes. My face gets swollen. I don t have any ID. (RR3: 27). Appellant said that he actually lives at 2536 Pine Street, with his sister. (RR3: 27). Appellant testified that he lost his ID. (RR3: 27). Appellant further stated that he used that address because he knew Ernest and works with him sometimes, and: I didn t have my ID to get prescription drugs. You can t get it without ID. I wrote that address number and serial number and Walmart give me the drugs then. You have to sign for it to get it. (RR3: 28). Appellant denied using drugs and stated: I can t use drugs if I wanted to. I had an operation. Can t use drugs. (RR3: 28). Appellant had a lung operation. (RR3: 28). Appellant said the money was in his wallet, which he testified was in his pocket, not a backpack. (RR3: 29). Appellant was only passing through on the day that the residence was raided. (RR3: 30). Appellant testified: we hadn t been too long from work. Walking around coming from work. I came from my sister and 7

12 I met him. (RR3: 30). Appellant stated that this was at 5 or 6 in the morning. (RR3: 30). Appellant said he was fixing to go pick up lots as soon as daybreak hits. (RR3: 31). Appellant testified that he was sleeping on a couch by the back door, as shown in State s Exhibit 15, the door leading to the kitchen. (RR3: 32). Appellant later stated that the phone number on the prescription receipts was not his, that Baylor Hospital probably put it on there. (RR3: 34). Appellant testified that he kept the prescription receipt in his pocket all the time, for identification purposes in case his face swole up again. (RR3: 35). Appellant said that the police picked him because he had the money. (RR3: 37). SUMMARY OF STATE S RESPONSIVE ARGUMENTS State s Response to Points of Error Number One and Two: Appellant s points of error entitle him to no relief on appeal. The record contains legally sufficient evidence to establish that Appellant was guilty of possession with intent to deliver cocaine beyond a reasonable doubt. STATE S REPLY TO APPELLANT S POINTS OF ERROR Appellant s Contentions: Appellant contends that the evidence is insufficient to establish his guilt beyond a reasonable doubt, and as such his conviction should be reversed. Appellant argues that the evidence does not provide an affirmative link between Appellant and the drugs, and any connection between the two was fortuitous. State s Response: The evidence in the record is legally sufficient to establish Appellant s guilt beyond a reasonable doubt. Appellant can be affirmatively linked to the cocaine: Appellant was present at the residence where the contraband a large amount of cocaine indicative of a drug 8

13 distribution enterprise was in plain view; Appellant had two prescription receipts listing the location of the trap house 2719 Grand Avenue as his residence, which he kept for identification purposes; Appellant was closest to the contraband; and Appellant had been seen standing on the front porch of the residence on two occasions prior to the execution of the search warrant. Standard of Review In an appeal challenging the sufficiency of the evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). This standard is the only standard of review the court should apply in reaching its determination. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). This is true regardless of whether the verdict is based on direct or circumstantial evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The appellate court must not reevaluate the weight and credibility of the evidence and substitute its judgment for that of the fact finder; instead, the appellate court is to defer to the decisions made by the fact finder, whose duty was to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. See Lincoln v. State, 307 S.W.3d 921, 924 (Tex. App. Dallas 2010, no pet.) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)) ( [T]he trier of fact is the sole judge of the witnesses credibility and is free to accept or reject any or all of the evidence presented by either side. ); see also Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) ( Appellate courts are ill-equipped to weigh the 9

14 evidence; unlike the factfinder--who can observe facial expressions and hear voice inflections first-hand--an appellate court is limited to the cold record. ). Where the record contains conflicts in the evidence, the reviewing court is to presume the fact finder resolved the conflict in favor of the verdict, and must defer to that resolution. Jackson, 443 U.S. at 326. The reviewing court is merely to determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, (Tex. Crim. App. 2007). Furthermore, circumstantial evidence can be sufficient to sustain a verdict. Hooper, 214 S.W.3d at 13; Lawrence v. State, 211 S.W.3d 883, 885 (Tex. App. Dallas 2006), aff d, 240 S.W.3d 912 (Tex. Crim. App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ( Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. ). In a case involving circumstantial evidence, [e]ach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13; see also Adames v. State, No. PD , 2011 Tex. Crim. App. LEXIS 1346, at *12 (Tex. Crim. App. Oct. 5, 2011) (The reviewing court determines whether the necessary inferences made by the trier of fact are reasonable, based upon the cumulative force of all of the evidence. ). Finally, the court may reverse the trial court s decision based on the insufficiency of the evidence only if the verdict is irrational or unsupported by the evidence. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). 10

15 Legal Authority Under Texas Health and Safety Code (a), (d), a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance; and the weight of the controlled substance, including adulterants or dilutants, [is] four grams or more but less than 200 grams. Tex. Health & Safety Code (a), (d) (West 2011). In order to prove possession of a controlled substance, the State is required to establish: (1) the [Appellant] exercised control, management, or care over the substance; and (2) the [Appellant] knew the matter possessed was a controlled substance. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The intent to deliver element may be proved by circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused on the premises. Patterson v. State, 138 S.W.3d 643, 649 (Tex. App. Dallas 2004, no pet.); see also Villa v. State, No CR, No CR, No CR, 2011 Tex. App. LEXIS 10190, at *31 33 (Tex. App. Dallas Dec. 30, 2011, no pet. h.) (not designated for publication). [I]ntent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Patterson, 138 S.W.3d at [W]here the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of any control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). This affirmative links rule requires the State to show the Appellant s presence near the drugs was more than just fortuitous; this rule is designed to protect the innocent bystander. Poindexter, 153 S.W.3d at 406. Thus, Appellant s 11

16 connection to the contraband must be more than just his fortuitous proximity to it. Poindexter, 153 S.W.3d at Mere presence at the location where the drugs are found is not sufficient, alone, to establish Appellant s possession; however, presence coupled with other evidence may be sufficient to establish possession beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006); Roberts v. State, No CR, 2011 Tex. App. LEXIS 5517, at *6 (Tex. App. Dallas 2011, no pet.) (not designated for publication). Some of the facts that act as affirmative links may include: 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. 12

17 Evans, 202 S.W.3d at 162 n.12. This is not an exhaustive list, and the Court of Criminal Appeals noted that each of these factors was recognized as sufficient, either singly or in combination, to establish a person s possession of contraband. Id. The Court of Criminal Appeals noted that the aforementioned factors are simply some factors which may circumstantially establish the legal sufficiency of the evidence to prove a knowing possession. They are not a litmus test. Id. There is no specific combination or formula that indicates sufficient affirmative links necessary to find the Appellant guilty. Wingfield v. State, 197 S.W.3d 922, 927 (Tex. App. Dallas 2006, no pet.). The quantity of the contraband can also be considered an affirmative link, especially where the drugs were immediately identifiable upon discovery, and where there were manufacturing and packaging materials such as razors, baggies, glass vials, a scale, etc. Wingfield, 197 S.W.3d at 927. Furthermore, it is the logical force or degree of the factors, not the number of factors present, that tend to affirmatively link the defendant to the contraband. Wingfield, 197 S.W.3d at 928 (citing Taylor v State, 106 S.W.3d 827, 831 (Tex. App. Dallas 2003, no pet.)). Application Appellant contends that there is insufficient evidence to prove him guilty of possession with intent to deliver cocaine because the evidence does not provide the necessary affirmative link between Appellant and the drugs found at 2719 Grand Avenue. (Appellant s Brief at pp. 5 6). Appellant argues that aside from his presence at the location, there was no other evidence to link him to the drugs, therefore any connection he had to the drugs was fortuitous. (Id. at p. 6). While it is true that Appellant s presence at the residence located at 2719 Grand Avenue is not sufficient by itself to establish his possession of the contraband, his presence coupled with other evidence is sufficient to establish Appellant s connection to the cocaine. 13

18 Appellant conducts an analysis based on the fourteen factors listed as examples of affirmative links in Evans, however, there is no requirement that each of these factors be present to establish Appellant s possession of the contraband, and furthermore, there is no specific formula or quantity of affirmative links necessary to find Appellant guilty. See Evans, 202 S.W.3d at 162 n.12; Wingfield, 197 S.W.3d at 927. Appellant argues that of the fourteen links discussed in the Evans case, only four are applicable to the Appellant: (1) presence at the location of the contraband, (2) the contraband was in plain view, (3) proximity and accessibility to the contraband, and (4) right of possession of the premises. (Appellant s Brief at pp ). Appellant further argues that those four links have limited value when viewed through the principles that (1) a person may jointly possess property but not the contraband found inside, (2) proximity to another s drugs does not a guilty party make, and (3) it is not sufficient that a present person simply know of drugs and that offenses are occurring. (Id.) (citations omitted). Appellant argues that these four links are simply not enough to affirmatively link Appellant to the contraband. (Id. at p. 13). The State contends that it is not the number of the affirmative links that is relevant, rather, it is the logical force of the evidence, and it is clear from the evidence in the record that there are sufficient affirmative links to link the Appellant to the contraband. Evans, 202 S.W.3d at 166. First, Officer Nguyen identified the Appellant as the man he had seen standing on the front porch of the house on two occasions prior to the date the search warrant was served. Officer Nguyen admitted that the description of the suspect in the search warrant did not fit the Appellant to a T, but any conflict was in the hands of the fact finder to resolve. Second, Officer McDonnold, one of the SWAT officers who made entry into the house, testified that Appellant was the individual closest to the table containing the contraband, and Sergeant Kaiser 14

19 searched a back pack found near the table that contained Appellant s wallet. Third, the house, identified as a trap house a house known for the sale and distribution of narcotics by Officer Nguyen and Sergeant Ragsdale, had contraband readily identifiable as crack cocaine in amounts and packaging not generally seen in cases of personal use, but instead in what was more often seen in drug distribution locations. Finally, and perhaps most importantly, Sergeant Kaiser found two prescription receipts in Appellant s pockets, dated August 9, 2010, which had Appellant s address listed as 2719 Grand Avenue. Appellant goes to great lengths to dispute his connection to 2719 Grand Avenue; however, the two prescription receipts link him to the address in more than a fortuitous manner. Appellant told police on the day of his arrest that he lived at 2828 Hickory. At trial Appellant testified that he lived with his sister at 2536 Pine Street. Appellant testified that he only used 2719 Grand Avenue as his address in order to get the prescription medication he needed because the pharmacy would not let him get the drugs without an identification card. Despite the need for an identification card, apparently the pharmacy provided Appellant with the medication when he wrote 2719 Grand Avenue down as his address. It makes little sense that Appellant would have used a fake address to get his medicine, as he claims he did when he gave them 2719 Grand Avenue as his home address, when he could have merely given them his true address, which may have been 2828 Hickory or 2536 Pine Street. If Appellant truly had no ID card, it would not matter what address he provided to the pharmacy, because there would have been no way for the pharmacy to verify the address. The fact that Appellant had two prescription receipts with his address listed at 2719 Grand Avenue dated August 9, 2010, and continued to carry those receipts with him for identification purposes, leads to a reasonable inference that Appellant s address was in fact 2719 Grand Avenue. (RR3: 35). One could even infer that if the pharmacy did 15

20 require Appellant to show ID to purchase the medicine, he had an ID card in August 2010 with his address listed as 2719 Grand Avenue. The fact finder was free to make reasonable inferences based on the circumstantial evidence presented. See Hooper, 214 S.W.3d at 13; Adames, 2011 Tex. Crim. App. LEXIS 1346, at *12. Regardless of any argument the Appellant makes, or the State for that matter, regarding the strength of the evidence connecting Appellant to 2719 Grand Avenue, any conflict in the evidence was solely in the hands of the fact finder to resolve. The reviewing court is not to determine whether it believes beyond a reasonable doubt that the Appellant is guilty of the crime with which he is charged; rather, it is merely to determine if any rational fact finder could have reached that conclusion. See Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011) (quoting Jackson, 443 U.S. at ). Though there are conflicts in the evidence, all conflicts are presumed to have been resolved in favor of the verdict. See Jackson, 443 U.S. at 326. The court must defer to the determinations made by the jury regarding the credibility of the witnesses and the weight to be given their testimony. See Jackson, 443 U.S. at 319; Lancon, 253 S.W.3d at 707; Lincoln, 307 S.W.3d at 924; Sneed v. State, No CR, 2011 Tex. App. LEXIS 6641, at *8 (Tex. App. Dallas 2011, no pet.) (not designated for publication) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) and Lee v. State, 952 S.W.2d 894, 897 (Tex. App. Dallas 1997, no pet.)) (It was the trial court s role, as fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses credibility. ). As such, it was within the trial court s discretion to find Appellant s testimony regarding his residence as unpersuasive. For all of the foregoing reasons, Appellant s single point of error entitles him to no relief on appeal and should be overruled in its entirety. 16

21 CONCLUSION AND PRAYER Because the record contains legally sufficient evidence to support Appellant s conviction for possession with intent to deliver cocaine, the State prays that this Court will affirm the trial court s judgment of conviction in its entirety. Respectfully submitted, CRAIG WATKINS Criminal District Attorney Dallas County, Texas REBECCA D. OTT, Assistant Criminal District Attorney Appellate Division 133 N. Riverfront Boulevard, LB-19 Dallas, Texas (214) FAX (214) State Bar No

22 CERTIFICATE OF SERVICE A true copy of the instant State s Response Brief has been served on Appellant s counsel, the Hon. Robert T. Baskett, 2612 Boll Street, Dallas, TX , by depositing said copy with the United States Postal Service, postage pre-paid, no later than the 26th day of January, REBECCA D. OTT 18