Joshua Dwayne Davis v. State ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00203-CR
Joshua Dwayne Davis, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-11-0277-SB, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Joshua Dwayne Davis of the offense of possession
of a controlled substance, cocaine, with intent to deliver. See Tex. Health & Safety Code
§ 481.102(3)(D), .112(c). Punishment was assessed at 25 years’ imprisonment. In six issues on
appeal, Davis asserts that the district court abused its discretion in denying his motion to suppress
on various grounds, that the jury improperly considered the evidence that Davis sought to
have suppressed, and that the evidence is insufficient to support his conviction. We will affirm
the judgment.
BACKGROUND
The jury heard evidence that, on February 2, 2011, a confidential informant alerted
the San Angelo Police Department that a person later identified as Davis was involved in narcotics
trafficking. The evidence, which we discuss in more detail below as it is relevant to Davis’s issues
on appeal, tended to show that officers proceeded to follow Davis’s vehicle around San Angelo
and—after observing Davis engage in several of what they believed to be drug transactions,
including two at a motel in San Angelo that was known for narcotics activity—initiated a traffic stop
on the vehicle. Following the stop, officers arrested Davis and discovered crack cocaine and other
contraband in Davis’s vehicle and on his person, and Davis was later charged with possession of a
controlled substance with intent to deliver. Prior to trial, Davis filed a motion to suppress, asserting
that the traffic stop and arrest were illegal. Following a hearing, the district court denied the motion
to suppress, finding that the stop was justified either by the officers’ reasonable suspicion to believe
that a traffic offense had been committed or by the officers’ probable cause to arrest Davis for
narcotics activity. The district court also found in the alternative that the officers had probable cause
to arrest Davis for driving with a suspended license, an offense that the officers had discovered at
some point following the traffic stop. The case proceeded to trial. The jury found Davis guilty as
charged and assessed punishment as noted above. The district court sentenced Davis in accordance
with the jury’s verdict. This appeal followed.
ANALYSIS
Motion to suppress
Davis’s first four issues challenge the district court’s denial of Davis’s motion to
suppress evidence and the jury’s subsequent consideration of the evidence that Davis sought to
suppress. In his first issue, Davis asserts that the district court abused its discretion in finding that
the arresting officers had reasonable suspicion to stop his vehicle for committing a traffic offense.
In his second issue, Davis asserts that the district court abused its discretion in finding that the
2
officers had probable cause at the time of the traffic stop to arrest Davis for narcotics activity. In his
third issue, Davis asserts in the alternative that the district court abused its discretion in finding that
the officers had probable cause following the stop to arrest him for the offense of driving with a
suspended license. And, in his fourth issue, Davis asserts that the jury improperly considered the
evidence obtained following the traffic stop that Davis contends should have been suppressed.1
“In review of a trial court’s ruling on a motion to suppress, an appellate court must
apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the
zone of reasonable disagreement.” Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)
(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). We are to apply a bifurcated
standard of review, giving almost total deference to a trial court’s determination of historic facts and
mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo
standard of review to pure questions of law and mixed questions that do not depend on credibility
determinations. Id. (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)). When
reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the light most
favorable to the ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011) (citing State
v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). If the trial court makes findings of fact,
as it did here, we determine whether the evidence supports those findings. Id. We then review
the trial court’s legal rulings de novo unless the findings are dispositive. Id. “We will sustain the
trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on any
1
Davis provides no additional analysis in his fourth issue, which appears to rely entirely on
the premise that the evidence was illegally obtained for the reasons explained in Davis’s first
three issues.
3
theory of law applicable to the case.’” Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim.
App. 2010) (quoting Dixon, 206 S.W.3d at 590).
At the suppression hearing and at trial,2 the district court heard evidence that, on
February 2, 2011, officers with the San Angelo Police Department were investigating suspected
drug trafficking. Detective Hank Hethcock of the Narcotics Division testified that, on that date, he
had received information over the telephone from a confidential informant. According to Hethcock,
this informant had provided accurate information regarding drug transactions “well over 20 times.”
The informant, who had initiated the contact with Hethcock, told him “that he had seen an individual
he knew as ‘J’ in a Mustang up in the northern part of San Angelo.” In court, Hethcock identified
Davis as the individual known as “J.” Hethcock explained, “The confidential informant contacted
me via telephone and told me that he had seen Mr. Davis in possession of crack cocaine, told
me what vehicle he would be in, and gave an area of where we could possibly locate it.” Hethcock
added that the informant described the vehicle as a “gray Ford Mustang” and indicated that Davis
was the driver of the vehicle. The informant also told Hethcock that Davis had a partner in the
vehicle, identified only as “Brad.”
Hethcock then “contacted other members of the division, and [they] went out in
search of the vehicle.” Hethcock eventually located the vehicle “in the northern part of San Angelo”
2
In reviewing a trial court’s ruling on a motion to suppress, “we generally consider only
evidence adduced at the suppression hearing because the ruling was based on it rather than evidence
introduced later.” Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). “However, this
general rule is inapplicable where, as in this case, the suppression issue has been consensually
re-litigated by the parties during trial on the merits.” Id. “Where the State raises the issue at trial
either without objection or with subsequent participation in the inquiry by the defense, the defendant
has made an election to re-open the evidence, and consideration of the relevant trial testimony is
appropriate in our review.” Id.
4
but observed that “it was just occupied by the Defendant.” The informant, who had called Hethcock
“throughout the incident,” told Hethcock that “Brad was no longer with ‘J’” and that Brad was “at
the room cutting [the crack cocaine] up, or chopping it up.” According to Hethcock, the informant
told him that Davis’s role that day was to be “involved in the distribution of crack cocaine.”
Hethcock continued monitoring the vehicle’s activity, either personally or with the
assistance of other officers. He explained,
I maintained surveillance on it, let the other members of my team know the location,
and then we all set up to surve[y] the vehicle to see where it was going and what they
were doing, and at that time I also contacted members of our Special Operations
Section, who have marked units, to where we could take down the vehicle when we
needed to.
....
I personally didn’t observe some of [the vehicle’s activity] because, for the most part,
I had the eyes, so as not to burn our vehicles, or let the people know what we are
doing, we stop following them for brief periods of time to, so-to-speak, let your
vehicle cool off and stay out of the area while the other units pick up the surveillance,
and while that was going on, I was being told by my team members what was
happening.
Hethcock testified that, throughout the surveillance, the vehicle was observed making
brief stops at “several locations,” which Hethcock described as “minute traffic” that, he believed,
was “consistent with . . . illegal narcotic activity.” When asked to explain what he meant by “minute
traffic,” Hetchock explained,
Just different locations. From what I have learned, people don’t like to conduct
business at their house, for fear of detection by law enforcement, so they will meet
people at different places, or go and deliver it to them. The sole purpose is for an
illegal narcotic transaction. They will pull up, meet somewhere, either get out, or
5
someone will get in their car, and the whole thing takes maybe, you know, a minute
to two minutes, sometimes a little longer or shorter.
Hethcock also agreed with the prosecutor’s description of the transactions as “brief encounters
at parking lots, convenience stores, things of that nature.” Although Hethcock did not personally
observe any of these transactions, he testified that other officers did.
Hethcock further testified that the vehicle was eventually found at the El Patio Motel
in San Angelo, which, according to Hethcock, had a reputation in the community for being a location
of narcotics trafficking and other crimes. Hethcock explained, “It’s more than just narcotics. It’s
just a, I hate to use the word cess pool, of illegal activity that takes place there, as far as there is
stolen property, prostitution, narcotics, wanted people are there. It’s just that most of the bad
individuals hang out there and rent rooms.” By the time Hethcock arrived at the motel, he observed
Davis’s vehicle parked on the northeast side of the motel and saw Davis come out of one of the
rooms in a different building on the south side of the motel, get back into the vehicle, and drive
away. According to Hethcock, it was after 5:00 p.m. when he saw Davis exit the room, and, because
it was early February, it was beginning to get dark outside. Hethcock also testified that the weather
was “freezing” at the time and that there was snow and ice on the ground.
After Davis had left, Hethcock remained at the motel and continued to conduct
surveillance on the room from where Davis had been seen, believing it to be the room where “Brad”
and the majority of the narcotics were located. Later that night, Davis returned to the motel, driving
the same vehicle. According to Hethcock, Davis “parked in the same spot, across in a different
building, and then exited the vehicle and went to Room 146, knocked on the door, and then someone
looked out and then allowed him entrance into the room.” Hethcock added that Davis “left pretty
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quickly” and again drove away. This time, Hethcock testified, he had a marked unit follow Davis
and instructed the officers to stop the vehicle.
One of the officers who had initiated the traffic stop was Detective Craig Thomason
of the San Angelo Police Department Special Operations Unit, which was assisting the Narcotics
Division on the date in question. Thomason was aware that the suspect vehicle had been at the
El Patio Motel and that the driver was suspected of “trafficking narcotics throughout the San Angelo
area.” Thomason testified that, as he was following the vehicle, he observed that the vehicle had
an “obscured license plate,” which he believed was a traffic violation. Thomason explained that he
thought the license plate was “covered with a tint-like material” and that the plate was “unreadable”
at approximately forty feet away. According to Thomason, it was “completely dark” outside, and
“a snow storm had recently come to town. . . . Snow is on the ground, ice, a lot of slush, muddy
slush, for lack of better words.” Thomason testified that his partner, Detective Chris Chappa, agreed
with his assessment of the license plate being obscured. Based on this observation, Thomason and
Chappa initiated the traffic stop.3
After stopping the vehicle, Thomason approached the driver side of the vehicle
while Chappa approached the passenger side. Upon approaching the window, which was open at
the time, Thomason “detected the strong odor of marihuana emitting from inside that vehicle.”
Thomason then told Davis to exit the vehicle and placed him in handcuffs. Thomason summarized
3
Photographs of the vehicle’s license plate, taken after the traffic stop, were admitted into
evidence. In the photographs, the first three letters of the license-plate number do appear to be
somewhat obscured, particularly from a distance. However, Thomason acknowledged that the
photographs do not necessarily represent an accurate representation of the license plate as it appeared
to the officers as they were following the vehicle, as the reflection from the camera flash might have
distorted the image.
7
the sequence of events as follows: “I saw the [traffic] violation. I went up to the vehicle.
Immediately when I made contact with Mr. Davis, I smelled the odor of marihuana emitting from
that vehicle. Therefore, he was taken from the vehicle and placed in handcuffs for my safety and
for the preservation of evidence. That’s how it went down.” Thomason testified that, at some point
after they had Davis exit the vehicle, they discovered that Davis was driving with a suspended
license, and arrested him for committing that offense. Also, having now smelled marihuana inside
the vehicle, Thomason and Chappa proceeded to search the vehicle for contraband. In the center
console of the vehicle, the officers discovered what they believed to be a controlled substance, which
was later determined to be cocaine, and a digital scale. A large amount of cash was also found
on Davis’s person, specifically $1,980.00. Additionally, upon closer inspection of the vehicle,
Thomason discovered that the license plate was obscured by what appeared to be road grime, not a
“tint-like material” as he had originally believed.
Davis, who was now under arrest for both driving with a suspended license and
possession of a controlled substance, was subsequently transported to the Tom Green County Jail.
Once there, Davis was strip-searched for booking purposes. During the search, Thomason observed
what appeared to be “a clear plastic baggy right next to his anus,” which the jailer who was searching
Davis removed and handed to Thomason. According to Thomason, the baggy “held an off-white
rock-like substance, which, from [his] training and experience, [he] recognized to be crack cocaine.”
Based on the above evidence, the district court denied Davis’s motion to suppress,
and made the following findings of fact and conclusions of law on the record:
8
Detective Hethcock, a San Angelo narcotics officer, received information from a
confidential informant that the Defendant, known as “J,” would be in possession of
crack cocaine, that he would be in a grey Mustang in north San Angelo.
He testified that the confidential informant had given him correct information on
20 other occasions approximately. He initially located the Defendant in the gray
Mustang at about 5:00 in the evening. He received continuing calls from the
confidential informant, which, when consulting with other officers doing the
surveillance, proved to be correct, such as making minute traffic stops, drugs stops,
going to El Patio, where Brad, the partner, was supposedly cutting up crack cocaine.
He was observed going into the El Patio Motel on two occasions for very brief
periods of time.
This Court, from four years of being a prosecutor in Tom Green County and
eighteen years as being a defense attorney in Tom Green County, will take judicial
notice that the El Patio Motel is exactly the way Detective Hethcock described it. If
you want to find something wrong going on in San Angelo, it’s going to be down at
the El Patio Motel, I can assure you. So I have to take that into account, too, that area
of town where the Defendant was located going into the motel and out of the motel
very briefly.
The Court finds that a stop was made by Officers Thomason and Chappa. They made
a stop for an obscured license plate. The Court finds that Section 502.409(a)(7) of
the Texas Transportation Code applies. If it has a coating, covering, or protective
material that distorts angular visibility or detectability, or alters or obscures the letters
or numbers on the plate, the color of the plate, or other original design. It doesn’t
have to be road grime, but road grime can be a coating or covering.
The statute further does not say the degree of how much that coating or covering
must be opaque, as long as it obscures. The officer testified that, from his distance,
without seeing it through a camera flash, that it was obscured. He then, at some point
in time, his report is unclear of, after stopping the vehicle, discovered that it was not
a tinted coating on there, but road grime, he testified.
The Court also remembers that February 2nd was a very snowy day, one of those
perfect storm days that we very rarely have in San Angelo.
The Court concludes that the officer had a basis for stopping the vehicle. A traffic
stop is a seizure within the meaning of the 4th Amendment.
In the present case, the traffic violation took place in the officer’s view and he had
sufficient authority to stop the vehicle.
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The Court further finds that even though the Defendant was handcuffed, that this still
does not mean that the officer did not have a basis for detaining the Defendant for a
brief period of time and handcuffing him for his own safety.
The Court further finds that there was probable cause based upon the confidential
informant’s statement, statements, plural, to Detective Hethcock.
And, lastly, the Defendant could have been arrested for driving while license was
suspended, and that due to the mobility of the vehicle, the vehicle could have been
searched incident to arrest at that point in time for inventory, which would have
resulted in the same position we are in at this point in time, so based on all those
reasons, the Court is denying the Motion to Suppress and we will proceed.
The district court made the same ruling (without re-stating its earlier findings) when Davis re-urged
his motion to suppress during trial.
Again, we must affirm the district court’s ruling if it is “reasonably supported by the
record” and not “outside the zone of reasonable disagreement.” See Martinez, 348 S.W.3d at 922;
Valtierra, 310 S.W.3d at 448. Additionally, because the district court found the traffic stop valid
under both a theory of reasonable suspicion to believe that a traffic offense had been committed
and a theory of probable cause to believe that a narcotics offense had been committed, we
must sustain the ruling if it is correct under either theory. See Valtierra, 310 S.W.3d at 448. For the
following reasons, we conclude that the ruling can be sustained on the theory that, at the time of the
traffic stop, the officers had probable cause to arrest Davis for committing a narcotics offense.
“An arrest occurs when a person’s liberty of movement is restricted or restrained.”4
Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). A person may be arrested without
4
In this case, it is undisputed that Davis was arrested rather than detained during the traffic
stop, and this conclusion is supported by the record. The evidence tends to show that Davis was told
to exit the vehicle as soon as the officers contacted him and was immediately placed in handcuffs.
10
a warrant only upon a showing of probable cause. Id. “Probable cause exists where the police
have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable
person to believe a particular person has committed or is committing an offense.” Hughes v. State,
24 S.W.3d 833, 838 (Tex. Crim. App. 2000). “The determination of the existence of probable cause
concerns ‘the factual and practical considerations of everyday life on which reasonable and
prudent [people], not legal technicians, act.’” Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim.
App. 1997) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). “Probable cause
deals with probabilities; it requires more than mere suspicion but far less evidence than that needed
to support a conviction or even that needed to support a finding by a preponderance of the
evidence.” Id. “The rule of probable cause seeks to accommodate the sometimes opposing interests
of safeguarding citizens from rash and unreasonable police conduct and giving fair leeway
to legitimate law enforcement efforts.” Id. (citing Woodward v. State, 668 S.W.2d 337, 345-46
(Tex. Crim. App. 1984) (op. on reh’g)).
Probable-cause determinations are both made and reviewed by considering the totality
of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Guzman, 955 S.W.2d at 87-
88; Amores, 816 S.W.2d at 413. Accordingly, it is improper to examine each fact independently and
determine whether each fact standing alone would be sufficient to support a finding of probable
cause. See Guzman, 955 S.W.2d at 87. Rather, we are to determine “whether the facts, when
taken as a whole, were sufficient to give the officers probable cause to arrest appellant.” Id. Under
the totality-of-the-circumstances approach, tips provided by a confidential informant are to be
considered, and the informant’s veracity, reliability, and basis of knowledge are all relevant factors
in determining the value of a tip. See Gates, 462 U.S. at 230; Dixon v. State, 206 S.W.3d 613, 616
11
(Tex. Crim. App. 2006). Additionally, “[i]t is well established that an officer who does not himself
possess probable cause for making a warrantless arrest may act upon the basis of information relayed
to him by another officer requesting that an arrest be made.” Pyles v. State, 755 S.W.2d 98, 109
(Tex. Crim. App. 1988); Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978). “Where
several officers are involved, the sum of the information known to the cooperating officers at the
time of arrest is to be considered in determining probable cause.” Garrison v. State, 726 S.W.2d
134, 137 (Tex. Crim. App. 1987) (citing Woodward, 668 S.W.2d at 334).
Here, the totality of the circumstances include the following: (1) a confidential
informant called Detective Hethcock and told him that he had seen an individual known as “J”
in possession of crack cocaine; (2) the informant told Hethcock that “J” was driving a gray
Ford Mustang in the northern part of San Angelo; (3) the informant had provided accurate
information regarding drug transactions “well over 20 times”; (4) Hethcock located the vehicle
described by the informant in the area of town where the informant had indicated the vehicle would
be found; (5) the informant also told Hethcock that, at one point, Davis had a passenger in the
vehicle known as “Brad”; (6) the informant, who had called Hethcock “throughout the incident,” told
Hethcock that “Brad was no longer with ‘J’” and that “Brad” was now in a room, “cutting [the crack
cocaine] up, or chopping it up”; (7) the informant told Hethcock that Davis’s role that day was to
“distribut[e] the crack cocaine”; (8) other officers working with Hethcock observed the vehicle
make brief stops at “several locations,” which Hethcock characterized as “minute traffic” that
was consistent with illegal narcotic activity; (9) “minute traffic” was further described as “brief
encounters at parking lots, convenience stores, things of that nature” for the purpose of conducting
“illegal narcotics transactions”; (10) Hethcock located Davis’s vehicle at the El Patio Motel, which
12
Hethcock described as “a cess pool of illegal activity,” including narcotics trafficking; (11) Hethcock
observed Davis coming out of a room at the motel, walking across the street to his vehicle, and then
driving away; (12) later that evening, Hethcock saw Davis return to the motel, park in the same
location as earlier, and go to the same room; (13) Hethcock also saw Davis knock on the door,
someone look out the door, and that person allow Davis entry into the room; (14) Hethcock
observed Davis leave the room “pretty quickly” and again drive away. Viewing the above
circumstances in their totality, we conclude that the record supports a finding by the district court
that the police had reasonably trustworthy information that, when considered as a whole, is sufficient
to warrant a reasonable person to believe that Davis had committed or was committing a narcotics
offense. See Woodward, 668 S.W.2d at 344-46; McNickles v. State, 230 S.W.3d 816, 819-21
(Tex. App.—Houston [14th Dist.] 2007, no pet.). To summarize, a confidential informant, who had
provided accurate information regarding drug transactions “well over 20 times,” had informed
Hethcock that Davis was in possession of and distributing crack cocaine, and accurately identified
both the vehicle and the general location in which Davis would be found doing so; other officers
observed Davis’s vehicle make “brief stops” at “several locations” throughout town in a manner that
was consistent with illegal narcotics transactions; and Hethcock personally observed Davis on
two occasions in the same evening exit a room at a motel known as a “cess pool of illegal activity,”
including narcotics trafficking, where Davis’s partner was believed to be located, “cutting [the
crack cocaine] up, or chopping it up.” The determination that the officers had, at the time of the
traffic stop, probable cause to arrest Davis for committing a narcotics offense is “reasonably
supported by the record” and is not “outside the zone of reasonable disagreement.” Accordingly,
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we cannot conclude that the district court abused its discretion in denying the motion to suppress
on that ground.
Because we can sustain the district court’s denial of the motion to suppress on the
above ground, we need not consider the alternate grounds on which the district court denied the
motion to suppress. And, because we cannot conclude that the district court abused its discretion
in denying the motion to suppress, we similarly cannot conclude that the evidence was improperly
considered by the jury. We overrule Davis’s first, second, third, and fourth issues.
Evidentiary sufficiency
In his fifth issue, Davis asserts that the evidence is insufficient to prove that he
possessed the cocaine found in the vehicle he was driving. In his sixth issue, Davis asserts that the
evidence is insufficient to prove that he had an intent to deliver the cocaine.
When reviewing the sufficiency of the evidence to support a conviction, we consider
all of the evidence in the light most favorable to the finding of guilt to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virgina, 443 U.S. 307, 319 (1979). We must consider all the evidence in the
record, whether direct or circumstantial or properly or improperly admitted. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports
the finding, and we defer to the trier of fact’s determinations of the witnesses’ credibility and the
weight to be given their testimony. Jackson, 443 U.S. at 318; Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010); Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04.
14
We first address the sufficiency of the evidence tending to show that Davis possessed
the cocaine. To prove that Davis possessed the cocaine, the State was required to prove that Davis:
(1) exercised control, management, or care over the contraband; and (2) knew that the item he
possessed was contraband. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011)
(citing Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005)). “Whether this
evidence is direct or circumstantial, ‘it must establish, to the requisite level of confidence, that the
accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called
‘affirmative links’ rule.’” Poindexter, 153 S.W.3d at 405-06 (quoting Brown v. State, 911 S.W.2d
744, 747 (Tex. Crim. App. 1995)).
There are many factors by which a defendant may, under the unique circumstances
of each case, be sufficiently “linked” to the contraband, including: (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 contraband; (4) whether the defendant was under the
influence of contraband 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 745. However, “[t]hese are simply some factors which may
circumstantially establish the legal sufficiency of the evidence to prove a knowing ‘possession.’
15
They are not a litmus test.” Id. Furthermore, it is not the number of links that is dispositive, but
rather the logical force of all the evidence, direct and circumstantial. Id. at 745. The force of these
links need not be such as to exclude every other alternative hypothesis except the defendant’s guilt.
Brown, 911 S.W.2d at 748; Figueroa v. State, 250 S.W.3d 490, 501 (Tex. App.—Austin 2008,
pet. ref’d).
In this case, the evidence tending to “link” Davis to the cocaine found in the vehicle
includes the following: (1) Davis was the driver of and the only occupant in the vehicle at the time
the cocaine was found; (2) the cocaine was found in the console of the vehicle, to which, the jury
could have reasonably inferred, Davis had easy access; (3) Davis was found with a large amount of
cash on his person at the time the cocaine was found, approximately $2,000; (4) Detective Thomason
testified that he smelled an odor of marihuana when he approached the vehicle, which, the jury could
have reasonably inferred, indicated that Davis had possessed other contraband; (5) an additional
amount of cocaine was subsequently found on Davis’s person, which, the jury could have reasonably
inferred, indicated that Davis was aware of the cocaine in the vehicle; (6) the confidential informant
had told Detective Hethcock that Davis was in possession of cocaine; (7) a digital scale was also
found in the vehicle; (8) based on the smell of marihuana in the vehicle, the jury could have
reasonably inferred that Davis was under the influence of narcotics; (9) prior to the traffic stop, Davis
was seen exiting a room at the El Patio Motel, which, Hethcock testified, had a reputation for
criminal activity including narcotics trafficking; and (10) the cocaine was found in a clear plastic
baggy, which, the jury could have reasonably inferred, would have been easily visible to Davis.
Viewing the above evidence and all reasonable inferences therefrom in the light most favorable to
the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Davis:
16
(1) exercised control, management, or care over the cocaine; and (2) knew that the item he possessed
was cocaine. Accordingly, the evidence is sufficient to prove that Davis possessed the cocaine. We
overrule Davis’s fifth issue.
We next address the sufficiency of the evidence tending to show that Davis had
an intent to deliver the cocaine. “Deliver” means to transfer, actually or constructively, to another
a controlled substance. Tex. Health & Safety Code § 481.002. “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).
The “intent to deliver” element of an offense may be proven by circumstantial evidence, including
evidence relating to the accused’s possession of the contraband. See Moreno v. State, 195 S.W.3d
321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Patterson v. State, 138 S.W.3d
643, 649 (Tex. App.—Dallas 2004, no pet.). 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.
Utomi v. State, 243 S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Williams
v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)).
In this case, evidence tending to show that Davis had an intent to deliver the cocaine
includes the following: (1) the cocaine was found in a motor vehicle, which, the jury could have
reasonably inferred, was being used by Davis to transport the cocaine from seller to buyer; (2) the
motor vehicle was on the road in transit at the time it was stopped, which, the jury could have
reasonably inferred, tended to show that an actual drug delivery was in progress; (3) earlier that day,
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officers had observed Davis make brief stops at other locations throughout San Angelo, which, the
jury could have reasonably inferred, was evidence that Davis had been engaged in other drug
deliveries throughout the day; (4) Davis had made not one but two stops at the El Patio Motel,
which, the jury could have reasonably inferred based on Hethcock’s testimony concerning the
motel’s reputation for being a location of narcotics activity, was for the purpose of obtaining cocaine
for delivery to others; (5) a digital scale was found in the same location as the cocaine, which, the
jury could have reasonably inferred, was being used by Davis to measure the cocaine for delivery
purposes; (6) a large amount of cash was found on Davis’s person, which, the jury could have
reasonably inferred, was evidence that Davis had been delivering the cocaine to buyers throughout
the day; (7) Detective Hethcock testified that the cash taken from Davis was in the amount of
54 twenty dollar bills and 9 one-hundred dollar bills, which, Hethcock testified, were the
denominations that were used to pay for commonly sold quantities of crack cocaine; (8) Hethcock
testified that the confidential informant had told him that Davis was “distributing crack cocaine” on
the date in question; (9) the confidential informant had also told Hethcock that Davis’s partner,
“Brad,” was “cutting up” or “chopping up” the cocaine, which, the jury could have reasonably
inferred, was being done to make the cocaine easier to deliver in specific quantities; (10) Hethcock
also testified that nothing was found on Davis’s person or in his vehicle that would have enabled
Davis to ingest the cocaine for his own personal use, which, the jury could have reasonably inferred,
meant that Davis was delivering the cocaine for use by others; and (11) the total amount of cocaine
found in Davis’s vehicle and on his person was 2.18 grams, which, the jury could have reasonably
inferred, was a quantity that was capable of being distributed to a drug user other than Davis.
Viewing the above evidence and all reasonable inferences therefrom in the light most favorable to
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the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that
Davis had an intent to transfer the controlled substance from one person to another. Accordingly,
the evidence is sufficient to prove that Davis had an intent to deliver the cocaine. We overrule
Davis’s sixth issue.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed: August 27, 2013
Do Not Publish
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