
                           NO. 07-09-0276-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL B

                              MAY 4, 2010




                            DARRON T. MOORE,


                                 Appellant
                                   v.


                          THE STATE OF TEXAS,


                                 Appellee
                      ____________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2007-414,858; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING



                           Memorandum Opinion





Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


         Darron T. Moore was convicted of possession  of  a  controlled
substance (cocaine) with intent to deliver.  On appeal,  he  challenges
the legal and factual  sufficiency  of  the  evidence  to  sustain  his
conviction and the trial court’s denial of his motion to suppress.   We
affirm the judgment of the trial court.

      Background

       Law  enforcement  officers  with  the  Drug  Enforcement  Agency
received a tip from a confidential informant that two  individuals  had
a quantity of cocaine in a certain motel room at the  Sunset  Motel  in
Lubbock.  They obtained a search warrant  and  executed  it  within  72
hours on December 8, 2006.  As they approached the room, they  observed
a white female nearing the door.  A black female  opened  the  door  of
the room.  When the black female saw that police officers were  outside
the room, she shut the door.  As the officers  entered  the  room,  the
black female was sitting on the bed.  Apppellant  was  seen  completely
naked with his hand in  the  toilet  of  the  bathroom.   Two  bags  of
cocaine were extracted from the swirling toilet.

      Issues 1 and 2 – Legal and Factual Sufficiency of the Evidence

       In  his  first  two  issues,  appellant  argues  that  there  is
insufficient evidence to prove that the drugs  belonged  to  him.   The
standards by which we  review  the  sufficiency  of  the  evidence  are
discussed in Jackson v. Virginia, 443  U.S.  307,  99  S.Ct.  2781,  61
L.Ed.2d 560 (1979) and Watson v. State,  204  S.W.3d  404  (Tex.  Crim.
App. 2006).  To convict appellant of the  charged  offense,  the  State
had to prove  that  appellant  intentionally  and  knowingly  possessed
cocaine with the intent to deliver.  Tex. Health  &  Safety  Code  Ann.
§481.115(d)  (Vernon  Supp.  2009).   Thus,  it  had  to   prove   that
appellant’s connection with the drug was “more than  just  fortuitous.”
Brown  v.  State,  911  S.W.2d  744,  747  (Tex.  Crim.   App.   1995).
Furthermore, his mere presence at the site where the drugs were  found,
without more, is insufficient to establish  actual  care,  custody,  or
control of the narcotics.  See Martin v. State,  753  S.W.2d  384,  387
(Tex. Crim. App. 1988).

      Courts have developed numerous factors  found  to  be  useful  in
determining whether the accused’s link to the contraband was more  than
mere fortuity.   Although not exclusive, the list includes  whether  1)
the  accused  was  present  when  the  search  was  conducted,  2)  the
contraband was plainly visible by those  present,  3)  the  drugs  were
near the defendant, 4) the defendant was under  the  influence  of  the
substance found, 5) the defendant possessed other  contraband  or  drug
paraphernalia when arrested, 6) the defendant  made  any  incriminating
statements, 7) the defendant attempted to flee, 8) the  defendant  made
furtive gestures, 9) the contraband emitted a recognizable odor at  the
time, 10) other contraband or drug paraphernalia was present,  11)  the
defendant had the right to exclusive or joint possession of  the  place
where the drugs were found, 12) the place where the  drugs  were  found
was enclosed, 13) the accused attempted to conceal the contraband,  and
14) the accused was familiar with the  type  of  contraband.   Kyte  v.
State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana 1997, no  pet.);  Hurtado
v. State, 881 S.W.2d 738, 743 n.1 (Tex. App.–Houston [1st Dist.]  1994,
pet. ref’d).  The number of factors established is not as important  as
the degree to which they tend to link the  defendant  to  the  offense.
Wallace v. State, 932 S.W.2d  519,  524  (Tex.  App.–Tyler  1995,  pet.
ref’d).

      Here, the jury  was  presented  evidence  of  1)  a  tip  from  a
confidential informant disclosing that  cocaine  was  present  in  that
particular motel room in the  possession  of  a  black  male  known  as
“Dizzy” and a black  female  known  as  “Nookie,”  2)  appellant  being
discovered in the motel  room  at  a  motel  commonly  known  for  drug
distribution, 3) appellant being naked in the bathroom in the  presence
of the drugs, 4) appellant having his hand  in  the  toilet  where  the
drugs were found, 5) the black female in the room having perceived  the
presence of the officers and shutting the door in their  face,  6)  the
toilet where the drugs were located having been  flushed,  and  7)  the
amount of drugs present constituting more than that  of  mere  personal
use.  As previously stated, the number of factors  established  is  not
as important as the degree to which they tend to link  the  accused  to
the drugs.  The aforementioned evidence constitutes sufficient  indicia
to enable jurors to rationally conclude beyond a reasonable doubt  that
appellant knowingly and intentionally had care,  custody,  and  control
of the narcotics.  Moreover, that appellant  attacked  the  credibility
of the officers executing the affidavit does not  render  that  verdict
manifestly unjust.  Appellant’s first two issues are overruled.

      Issue 3 – Motion to Suppress

            In his  third  issue,  appellant  claims  the  trial  court
should have suppressed the evidence found as a result of  execution  of
the search warrant.  We overrule the issue for  appellant  uttered  “no
objection” when the evidence was offered by  the  State.   Having  said
that, he waived any complaint he may have had.   Brown  v.  State,  183
S.W.3d 728, 741 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d).

      Accordingly, the judgment is affirmed.



                                        Brian Quinn

                                        Chief Justice



Do not publish.



