Affirmed and Memorandum Opinion filed July 17, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00261-CR

                  BREALAND DWAYNE COMBS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1287840

                       MEMORANDUM OPINION

      Appellant was convicted of possessing more than four grams of cocaine with
intent to deliver. Punishment was assessed at twenty-five years’ imprisonment. On
appeal, the only question is whether the evidence is sufficient to support the
conviction. We conclude that it is and affirm the judgment of the trial court.
                                  BACKGROUND

      Appellant was arrested during a “buy-bust” operation. In December 2010, an
undercover officer with the Houston Police Department made contact with a drug
dealer, Giovanni Cabrera, at a gas station near Hobby Airport. The officer
indicated that he was looking to buy crack cocaine. Cabrera agreed to obtain the
drugs in exchange for forty-five dollars. The officer gave Cabrera the money in
three marked bills, then Cabrera contacted his supplier.

      Ten to fifteen minutes after the call, appellant arrived at the gas station and
made a hand-to-hand transaction with Cabrera. Cabrera then delivered the officer a
package containing approximately 0.4 grams of crack. The officer gave the signal
that drugs had been delivered, which prompted marked patrol units to arrive on
scene. Uniformed police officers arrested Cabrera without incident, but appellant
ran off on foot. As he fled, appellant dropped a package near the gas pumps
containing more than four grams of crack. Appellant was apprehended at a nearby
motel, where he was hiding on a second floor balcony. The three marked bills were
found in his possession.

                                 ISSUES PRESENTED

      Appellant has filed two briefs in this case, one through his court-appointed
lawyer, and the other written in his own hand. We do not consider the arguments
presented in appellant’s self-written brief because appellant is not entitled to hybrid
representation. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App.
2004). Looking only at the arguments raised by appellant’s lawyer, we consider the
following issues presented: whether the evidence is legally and factually sufficient
to support the jury’s verdict.




                                          2
                           STANDARD OF REVIEW

      We review factual sufficiency challenges under the same standard for legal
sufficiency challenges. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App.
2011) (per curiam). When reviewing the legal sufficiency of the evidence, we
examine all of the evidence in the light most favorable to the verdict and determine
whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360
(Tex. Crim. App. 2013). Although we consider everything presented at trial, we do
not reevaluate the weight and credibility of the evidence or substitute our judgment
for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Because the jury is the sole judge of the credibility of witnesses and of
the weight given to their testimony, any conflicts or inconsistencies in the evidence
are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111
(Tex. Crim. App. 2000). Our review includes both properly and improperly
admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We also consider both direct and circumstantial evidence, as well as any
reasonable inferences that may be drawn from the evidence. Id.

                                    ANALYSIS

      To support a conviction for possession with intent to deliver, the State must
prove each of the following elements: (1) the defendant exercised care, custody,
control, or management over a controlled substance; (2) the defendant intended to
deliver the controlled substance to another; and (3) the defendant knew that the
substance in his possession was a controlled substance. See Tex. Health & Safety
Code §§ 481.002(38), 481.112(a); Parker v. State, 192 S.W.3d 801, 805 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). When the defendant is not in exclusive
possession of the place where the controlled substance is found, the State must also

                                         3
show that the defendant is affirmatively linked to the controlled substance. See
Haggerty v. State, 429 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

      Appellant asserts that there is insufficient proof of intent to deliver because
there was no testimony that the large bag of cocaine was comprised of smaller,
individualized baggies. But, packaging is not the exclusive means of proving intent
to deliver. Intent can also be inferred by a person’s conduct and surrounding
circumstances. See Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009).

      Here, the jury heard testimony that appellant dropped a bag containing more
than four grams of crack cocaine. The undercover officer testified that the bag
contained a “very large” quantity of drugs that would be too much for personal use.
Based on his own experience in narcotics investigations, the officer stated the
drugs would be divided for sale, and served to approximately twenty-five people.
From this evidence, a rational jury could have found that appellant possessed the
drugs with the intent to deliver.

      A rational jury could also infer intent to deliver because the record supports
a finding that appellant actually delivered crack cocaine in this case. The
undercover officer testified that he gave three marked bills to Cabrera in exchange
for crack. Cabrera placed a call for the drugs, and minutes later, appellant arrived
on scene and made a hand-to-hand transaction with Cabrera. Shortly after that, the
officer received a small 0.4-gram rock of crack cocaine from Cabrera. The jury
could have determined that appellant delivered the small rock in exchange for the
three marked bills, which were later recovered on appellant’s person.

      Appellant further asserts that the State failed to show that he was
affirmatively linked to the large bag of crack cocaine. Appellant bases this
complaint on the State’s failure to obtain appellant’s fingerprints on the bag.


                                          4
      An affirmative link generates a reasonable inference that the defendant knew
of the contraband’s existence and exercised control over it. See Olivarez v. State,
171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Courts
have identified the following factors that may help to show a defendant’s
affirmative links to a controlled substance: (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 controlled substance;
(4) whether the defendant was under the influence of a controlled substance when
arrested; (5) whether the defendant possessed other contraband or controlled
substances 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 controlled
substance was found; (12) where the location of the controlled substance was
enclosed; (13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of defendant indicated a consciousness of guilt. See
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). No set formula
necessitates a finding of an affirmative link sufficient so support an inference of
knowing possession. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d). Affirmative links are established by the totality of the
circumstances. See Wootton v. State, 132 S.W.3d 80, 87 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d). The number of factors present is not as important as
the logical force the factors create to prove the defendant knowingly possessed the
controlled substance. See Black v. State, 411 S.W.3d 25, 28–29 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).


                                           5
      The evidence showed that appellant dropped a plastic bag as he was running
from police. The jury heard testimony that a plastic bag containing more than four
grams of crack cocaine was recovered in the exact spot where appellant was
observed to have dropped something. Even without fingerprints, the evidence was
sufficient to affirmatively link appellant to the drugs that were recovered. Based on
the testimony that appellant discarded the plastic bag in his flight from police, the
evidence was also sufficient to show that appellant knew he was possessing a
felony quantity of crack cocaine. See Bigby v. State, 892 S.W.2d 864, 883 (Tex.
Crim. App. 1994) (evidence of flight is circumstantial evidence of guilt). We
conclude that a rational jury could have found every element of the offense beyond
a reasonable doubt.

                                 CONCLUSION

      The judgment of the trial court is affirmed.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                             6
