                                  NO. 07-05-0237-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  JUNE 15, 2007
                         ______________________________

            BENNIE L. COLLINS A/K/A BENNY L. COLLINS, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-409,185; HONORABLE CECIL PURYEAR, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


      Appellant Bennie L. Collins presents a single issue challenging the sufficiency of the

evidence supporting his conviction of possession of a controlled substance with intent to

deliver. Punishment, enhanced by a prior conviction, was assessed by the jury at life

imprisonment and a $10,000 fine. We will affirm the trial court’s judgment.


      The objective facts giving rise to appellant’s prosecution are largely undisputed.

The disputed issues at trial were appellant’s knowledge and intent. In late February 2004

Lubbock police officer Damien Pleasant received information that a person with
outstanding warrants could be found at a particular location. Driving to the location,

Pleasant found appellant sitting alone in the driver’s seat of a parked car. After the officer

obtained appellant’s identification, and while appellant remained in the car, the officer

confirmed there were warrants for appellant’s arrest.1 As Pleasant returned to speak to

appellant, a second officer arrived as backup. When appellant got out of the car, the

second officer saw a bag of what he believed was crack cocaine on the floor of the car.

The officers arrested appellant and conducted a search of the vehicle, which did not reveal

any other evidence. Subsequent testing showed the contents of the bag officers recovered

contained cocaine and weighed 6.2 grams.


       A May 2005 indictment charged appellant with possession of a controlled substance

in penalty group one with intent to deliver.2 The indictment contained an enhancement

paragraph alleging a prior felony conviction for delivery of a controlled substance.

Appellant pled not guilty to the indicted offense but true to the enhancement paragraph and

the case was tried to a jury. At trial the officers explained the bag was found in front of the

driver’s seat. It would not have been visible to a seated driver, but would have been visible

when getting into the car. As evidence of appellant’s intent to sell the cocaine, the State




       1
          Testimony revealed the warrants were for failure to display a driver’s license and
for failure to appear.
       2
         The indictment erroneously alleged the offense occurred “on or about” February
23, 2005. This defect was not fatal to appellant’s prosecution because the date of the
offense shown by the evidence was before the date of the indictment and within the
limitations period. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 2005); Sledge
v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997).

                                              2
presented testimony, over appellant’s objection,3 that he had sold cocaine to an undercover

officer in September 2004.


       Appellant now presents a single issue challenging the legal sufficiency of the

evidence supporting his conviction.4 The legal sufficiency standard of review requires us

to view the evidence in the light most favorable to the prosecution and determine whether

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005), citing

Jackson, 443 U.S. at 318-19.


       Appellant’s argument focuses on whether the evidence showed “affirmative links”

between appellant and the contraband. Citing Brown v. State, 911 S.W.2d 744, 748

(Tex.Crim.App. 1995), the State’s brief points to evidence it believes supports the jury

determination of possession and evidence supporting the determination that appellant had

an intent to deliver. We address both of those elements.


       The possession element of the charged offense required the State to prove

appellant exercised control, management, or care over the substance while knowing it to

be contraband. Poindexter, 153 S.W.3d at 405-06. Recognizing that a person may jointly



       3
       No appellate issue is raised concerning the admissibility of the extraneous offense
evidence.
       4
         Although appellant’s brief does not expressly state whether his challenge is to the
legal or factual sufficiency of the evidence, the standard of review he states, his citation to
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and his prayer
for an acquittal rather than a new trial, all support our conclusion that he contends the
evidence supporting his conviction was legally insufficient.

                                              3
possess property where contraband is found but not necessarily jointly possess the

contraband, our courts apply the rule that “[w]hen 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 and control over the contraband unless there are additional

independent facts and circumstances which affirmatively link the accused to the

contraband.” Id. at 406, quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.

1981) (other internal citation omitted).5 The “links” requirement is designed to protect the

innocent bystander from conviction merely because of his “fortuitous proximity to someone

else’s drugs.” Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006).6


       Here, the evidence is that appellant was in exclusive possession of the vehicle in

which the cocaine was found. He was alone in the car. We do not agree that the evidence

supports the statement in appellant’s brief that his friend and her child had been in the car

earlier in the day. The testimony showed only that officers released the car to the friend

after appellant’s arrest. The only evidence on ownership of the car was that officer

Pleasant believed it belonged to appellant’s mother. The threshold condition requiring

independent facts and circumstances linking appellant to the contraband, that of joint

possession of the place at which it was found, therefore, is not present in this case.




       5
        In Deshong, like here, the contraband in question was a controlled substance
found on the floorboard of a car in front of the driver’s seat. 625 S.W.2d at 329.
       6
        In Evans, decided after the briefs were filed in his appeal, the court dropped the
modifier “affirmative” from the description of a defendant’s links to the contraband. 202
S.W.3d at 161 n. 9.

                                             4
       Further, evidence of links present here included the location of the cocaine under

appellant’s legs while he was seated in the car. See Evans, 202 S.W.3d at 163 (court

described cocaine less that a foot away from defendant as being “right under his nose”);

Deshong, 625 S.W.2d at 329 (evaluating similar evidence). The cocaine was in plain view

and, as noted, appellant was alone in the car, seated in the driver’s seat. The evidence

of appellant’s sale of cocaine in September 2004 was a link showing appellant’s

involvement with cocaine generally and from which his knowledge of its appearance may

be inferred. See Mason v. State, 99 S.W.3d 652, 656 (Tex.App.–Eastland 2003, pet. ref’d)

(finding evidence of subsequent extraneous offenses admissible to show knowing

possession). Viewed in the light most favorable to the jury’s verdict, the evidence is

sufficient to permit a fact finder to rationally find appellant exercised control of the cocaine

and knew it was contraband.


       Intent to deliver can be proven by circumstantial evidence. Ingram v. State, 124

S.W.3d 672, 675 (Tex.App.--Eastland 2003, no pet.). The State’s argument supporting the

jury finding of appellant’s intent to deliver the cocaine is presented in the context of the

factors identified in Smith v. State, 737 S.W.2d 933 (Tex.App.–Dallas 1987, pet. ref’d).

Those factors are: (1) the quantity of contraband, (2) the manner in which it was packaged,

(3) the presence of large amounts of money, (4) whether the defendant is a drug user, and

(5) other evidence of drug transactions. Id. at. 941. See also Branch v. State, 599 S.W.2d

324, 325 (Tex.Crim.App. 1979) (considering amount of contraband and cash). Our courts

continue to look at the same core factors. See, e.g., Robinson v. State, 174 S.W.3d 320,

331 (Tex.App.--Houston [1st Dist.] 2005, pet. ref’d); Jordan v. State, 139 S.W.3d 723, 726


                                               5
(Tex.App.–Fort Worth 2004, no pet.). Expert testimony also may be introduced to prove

intent to deliver. Id.; Mack v. State, 859 S.W.2d 526, 529 (Tex.App.–Houston [1st Dist.]

1993, no pet.).


       The State characterizes the quantity of cocaine found here as “large.”             The

quantities of drugs involved in the cases the State cites are substantially larger than the 6.2

grams present here. In Smith the defendant possessed 1331 grams of powder of which

349.5 grams were pure cocaine. 373 S.W.2d at 941. Similarly, the defendant in Gabriel

v. State, 900 S.W.2d 721 (Tex.Crim.App. 1995), possessed 35.2 grams of cocaine. See

also Branch, 599 S.W.2d 324, 326 (Tex.Crim.App. 1979) (rev’d on rehearing on other

grounds) (defendant possessed 2,864 “hits” of heroin); Simmons v. State, 100 S.W.3d 484,

489 (Tex.App.--Texarkana 2003, pet. ref’d), cert. denied, 541 U.S. 996 (2004) (1000 grams

of cocaine supported finding of intent to deliver). Nonetheless, the State’s evidence here

included the testimony of Tony Marez, an investigator with the narcotics division of the

Lubbock County Sheriff’s Department, who described the quantities of crack cocaine

typically involved in the personal use of the drug by a user. He characterized a “$20 rock”

of the substance, containing “.20 or .25 grams of crack,” as an “average rock that they are

selling out there.” He also said that a $20 rock is sufficient to allow one to three people to

“get high,” and that one gram of crack is adequate for that result in five to fifteen people.7

Marez further opined that 6.2 grams of crack would not be for personal use. Other

evidence showed the bag found with appellant contained more than one rock of cocaine.



       7
       Marez referred to a circumstance in which a pipe containing the cocaine was
passed around and smoked by several users.

                                              6
The jury could have found the quantity of cocaine present here indicates appellant’s

possession of it was accompanied by an intent to deliver the substance to others. See

Mack, 859 S.W.2d at 529 (evidence of 8.9 grams of cocaine as 29 rocks together with

testimony the area was known for drug sales and users would not carry that amount of

cocaine).


      The record before us contains no testimony attributing any significance to the way

in which the cocaine possessed by appellant was packaged. We also find no evidence

supporting the third factor listed in Smith. No cash was found in the car and there was no

evidence of the amount found on appellant. Compare Smith, ($9,000 present in hotel

room); Gabriel, 842 S.W.2d at 331 ($80 in defendant’s pocket). See also Branch, 599

S.W.2d at 325 ($8,000 in small bills). There was no evidence on the fourth factor, whether

appellant used cocaine.


      The State also relies on the evidence of appellant’s extraneous sale of cocaine as

supporting the fifth Smith factor. Investigator Marez was the undercover officer who

testified he was introduced to appellant by a paid informant and bought a “fat stone”8 of

crack cocaine from appellant in September 2004, some six months after the offense being

tried. Marez testified also that, immediately after the purchase, he asked appellant for a

telephone number at which Marez could contact him directly, without the informant’s

involvement. Appellant provided Marez a telephone number and a password for that



      8
       Marez testified a fat stone is a larger-than-normal rock of cocaine. Testimony also
revealed the substance, which Marez purchased from appellant on that occasion for $200,
weighed some 3.82 grams.

                                            7
purpose.9 We agree with the State that the jury could consider appellant’s September

2004 sale to Marez and their conversation as evidence of appellant’s intent with respect

to the 6.2 grams he possessed on the occasion in question here. See Mason, 99 S.W.3d

at 656.


       This evidence, coupled with that of appellant’s knowing possession of the cocaine

and viewed in the light most favorable to the jury’s verdict, would justify a rational fact

finder’s determination that appellant possessed the drug with the intent to deliver it.

Accordingly, we find the evidence was legally sufficient to support appellant’s conviction.

Poindexter, 153 S.W.3d at 405.


       We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




Do not publish.




       9
        Marez said, “[Appellant] advises me whenever I call, just say ‘Baby boy, what’s up,’
and that way, he’ll know it’s me because nobody else says that to him when they call.”

                                             8
