                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-400-CR


ZACHARY DANIEL HARRIS                                               APPELLANT
A/K/A ZACHARY HARRIS
                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      A jury convicted Appellant Zachary Daniel Harris a/k/a Zachary Harris of

possession with intent to deliver four grams or more but less than two-hundred

grams of a controlled substance, and the trial court sentenced him to thirty-five

years’ confinement. In four points, Harris argues that the trial court erred by



      1
          … See Tex. R. App. P. 47.4.
denying his motion to suppress evidence, that the evidence is legally and

factually insufficient to support his conviction, and that the trial court abused

its discretion by admitting certain evidence. We will affirm.

                                II. B ACKGROUND

      On May 5, 2006, pursuant to an arrest warrant, officers with the Grand

Prairie Police Department arrested Harris in the parking lot of a convenience

store when he exited a white Chevrolet Malibu that he had been driving.2

Officers searched the vehicle and recovered a loaded shotgun with a pistol grip

lying on the back seat in a black bag, two boxes of clear plastic bags on the

floorboard behind the driver’s seat, two cell phones from the front of the

vehicle, and a small canvas-type bag in the center console containing a pocket

digital scale with white residue on it and a plastic bag containing 70.93 grams

of an off-white, rock-like substance subsequently tested and determined to be

cocaine. Harris had $960 in his right front pants pocket.

      Harris entered a plea of not guilty to the charged offense of possession

with intent to deliver a controlled substance of four grams or more but less than

two-hundred grams and a plea of not true to the deadly weapon finding notice.


      2
       … The warrant states that the Affiant “ha[s] good reason and do believe
that on/about 5/2/06 one Harris, Zachary Daniel did then and there in the City
of Grand Prairie, Dallas County, Texas commit the offense of Capital Murder
19.03 C/F.”

                                       2
The trial court denied Harris’s motion to suppress the evidence seized from the

vehicle, and it found true beyond a reasonable doubt the State’s deadly weapon

notice. This appeal followed Harris’s trial and conviction.

                   III. M OTION TO S UPPRESS—O MITTED F ACT

      In his fourth point, Harris argues that the trial court erred by denying his

motion to suppress the evidence seized from the vehicle because the arrest

warrant was defective due to the omission of relevant and material facts that

were withheld from the supporting affidavit but known to the affiant when the

warrant was sought. Harris specifically complains about the affiant’s admitted

omission from the affidavit of the fact that Emerald Lyle—a witness to the

murder for which authorities sought to arrest Harris—did not identify Harris in

a photographic spread that she viewed prior to the magistrate’s issuance of the

arrest warrant and prior to Harris’s arrest on May 5, 2006. Harris contends

that “[h]ad the magistrate known this information, this affirmative fact

exculpating [Harris] would have vitiated probable cause and resulted in the

denial of the arrest warrant.”

            A.    Standard of Review

      Generally, the appropriate standard for reviewing a trial court’s ruling on

a motion to suppress is a bifurcated standard of review, giving almost total

deference to the trial court’s determination of historical facts and reviewing de

                                        3
novo the court’s application of the law. Amador v. State, 221 S.W.3d 666,

673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997).    When reviewing a magistrate’s decision to issue a warrant,

however, we apply a highly deferential standard in keeping with the

constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d 55,

60 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 810–11

(Tex. Crim. App. 2004). Under this standard, we uphold the probable cause

determination “so long as the magistrate had a ‘substantial basis for . . .

conclud[ing]’” that probable cause existed. Illinois v. Gates, 462 U.S. 213,

236, 103 S. Ct. 2317, 2331 (1983) (quoting Jones v. United States, 362 U.S.

257, 271, 80 S. Ct. 725, 736 (1960), overruled on other grounds by U.S. v.

Salvucci, 448 U.S. 83, 100 S. Ct. 2547 (1980)); see Swearingen, 143 S.W.3d

at 810.

      An arrest warrant must provide the magistrate with sufficient information

to support an independent judgment that probable cause exists for the warrant.

Jones v. State, 568 S.W.2d 847, 854 (Tex. Crim. App.), cert. denied, 439 U.S.

959 (1978). Whether the facts mentioned in the affidavit are adequate to

establish probable cause depends on the totality of the circumstances. Ramos

v. State, 934 S.W.2d 358, 362–63 (Tex. Crim. App. 1996). A reviewing court

should not invalidate a warrant by interpreting the affidavit or complaint in a

                                      4
hypertechnical manner.    See Gates, 462 U.S. at 236, 103 S. Ct. at 2331;

Rodriguez, 232 S.W.3d at 59.        Rather, when a court reviews an issuing

magistrate’s determination, the court should interpret the affidavit or complaint

in a commonsensical and realistic manner, recognizing that the magistrate may

draw reasonable inferences. See Rodriguez, 232 S.W.3d at 61; Davis v. State,

202 S.W.3d 149, 154 (Tex. Crim. App. 2006). The duty of a reviewing court

is thus simply to determine whether, considering the totality of the

circumstances, the magistrate had a substantial basis for concluding that

probable cause existed to support the issuance of the warrant when viewing

the affidavit. Gates, 462 U.S. at 238, 103 S. Ct. at 2332.

      B.    Supplemented Affidavit Sufficient to Show Probable Cause

      The United States Supreme Court has held that an affirmative

misrepresentation of a material fact that establishes probable cause, made

knowingly or recklessly in a probable cause affidavit, will render a search

warrant invalid under the Fourth Amendment. See Franks v. Delaware, 438

U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978).           Although the court of

criminal appeals has yet to state clearly that Franks should apply to omissions

as well, the Fifth Circuit, this court, and other courts of appeals have applied

the same analysis to omissions of material facts. See United States v. Martin,

615 F.2d 318, 328 (5th Cir. 1980); McKissick v. State, 209 S.W.3d 205,

                                       5
211–14 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Darby v. State, 145

S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Ward v.

State, No. AP-74695, 2007 WL 1492080, at *3–4 (Tex. Crim. App. May 23,

2007).   We therefore analyze the complained of omission regarding Lyle’s

failure to identify Harris in a photographic spread under Franks. See Martin,

615 F.2d at 328; McKissick, 209 S.W.3d at 211–14; Darby, 145 S.W.3d at

722; Volk v. State, Nos. 01-07-00265-CR, 01-07-00266-CR, 01-07-00326-CR,

2008 WL 2854166, at *4–5 (Tex. App.—Houston [1st Dist.] July 24, 2008,

no pet.) (mem. op.) (applying Franks to argument that material, exculpatory

omissions in affidavit    supporting search warrant invalidated warrant).

Accordingly, if a defendant establishes by a preponderance of the evidence that

omissions of fact were made in a probable cause affidavit and that such

omissions were made intentionally or with reckless disregard for the truth, the

warrant will be held invalid if the inclusion of the omitted facts would vitiate

probable cause. Martin, 615 F.2d at 328.

      Here, Detective Joseph Wood of the Grand Prairie Police Department is

the affidavit’s affiant. According to the affidavit, Lyle awoke in her living room

to discover Megal Brown standing in between Christopher Jackson (also known

as “Chris” or “Lil Chris”) and “a black male that she recognized . . . had been

at her apartment before.” Lyle heard Brown call out her name, she heard a

                                        6
gunshot, and she observed Brown fall to the floor. The two men ran out of the

apartment.

         Lyle did not know the name of the “black male,” but she identified

Jackson and told Detective Wood that Jackson’s phone number was listed in

Brown’s cell phone. Investigators located a phone number on the cell phone

under the name “Lil Chris,” called the number, and spoke to Jackson, who said

his last name was Jackson, provided his date of birth, and agreed to talk to

investigators. Investigators obtained a photograph of Jackson and showed it

to Lyle. Lyle confirmed that Jackson was the person in the photograph.

         Investigators arrested Jackson, and Jackson “waived his rights and

admitted to being in the apartment buying weed from [Brown].” According to

Jackson, he had completed his drug transaction and was about to leave when

Harris arrived at the apartment.    Jackson knew Harris by name.      Jackson

observed Harris and Brown “tussle[] around the kitchen/dining area of the

apartment,” and he heard a gunshot as he was leaving to get away from the

fight.

         In light of this information contained within the four corners of the

affidavit, we hold that, considering the totality of the circumstances, the

magistrate had a substantial basis for concluding that probable cause existed

to support the issuance of the warrant for Harris’s arrest even when the

                                        7
affidavit is supplemented with the omitted information. See Gates, 462 U.S.

at 238, 103 S. Ct. at 2332; Martin, 615 F.2d at 328; McKissick, 209 S.W.3d

at 211–14; Darby, 145 S.W.3d at 722. Thus, the inclusion in the affidavit of

the fact that Lyle failed to positively identify Harris in a photographic spread

would not have vitiated probable cause and consequently rendered invalid the

arrest warrant.   Accordingly, the trial court did not err by denying Harris’s

motion to suppress evidence. We overrule Harris’s fourth point.

                         IV. E VIDENTIARY S UFFICIENCY

      In his first and second points, Harris challenges the legal and factual

sufficiency of the evidence to show that he possessed the controlled substance

for which he was prosecuted.

      A.    Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether 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 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

                                       8
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

                                        9
is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the factfinder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9. An opinion addressing factual sufficiency must include a

discussion of the most important and relevant evidence that supports the

appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.

Crim. App. 2003).

      B.    Sufficient Evidence of Possession

      A person commits an offense if the person knowingly possesses with

intent to deliver a controlled substance in the amount of four grams or more but

less than 200 grams.     Tex. Health & Safety Code Ann. § 481.112(a), (d)

(Vernon 2003). To prove possession of a controlled substance, the State had

to prove that Harris (1) exercised actual care, custody, control, or management

over the contraband and (2) that he knew the matter possessed was

contraband. See id. § 481.002(38), 481.112(a); Brown v. State, 911 S.W.2d

744, 747 (Tex. Crim. App. 1995). Regardless of whether the evidence is direct

or circumstantial, it must establish that the defendant’s connection with the

                                      10
drug was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex.

Crim. App. 2006); Beall v. State, 237 S.W.3d 841, 850 (Tex. App.—Fort

Worth 2007, no pet.).     This is the so-called “affirmative links” rule, which

protects the innocent bystander from conviction merely because of his

fortuitous proximity to someone else’s drugs. Evans, 202 S.W.3d at 161–62.

While mere presence at the location where drugs are found is insufficient by

itself to establish actual care, custody, or control of the drugs, presence or

proximity, when combined with other evidence, either direct or circumstantial

(e.g. “links”), may well be sufficient to establish that element beyond a

reasonable doubt. Id. at 162.

      No formula of facts exists to dictate a finding of links sufficient to support

an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827,

830 (Tex. App.—Dallas 2003, no pet.); Ramos v. State, Nos. 02-07-00118-CR,

02-07-00119-CR, 2008 WL 623777, at *4 (Tex. App.—Fort Worth Mar. 6,

2008, pet. ref’d) (mem. op.). It is the logical force of the evidence, and not the

number of links, that supports a factfinder’s verdict. Evans, 202 S.W.3d at

166. Possible links include but are not limited to the following: (1) whether the

defendant was present when the drugs were found; (2) whether the drugs were

in plain view; (3) the defendant’s proximity to and the accessibility of the drugs;

(4) whether the defendant was under the influence of drugs when arrested; (5)

                                        11
whether the defendant possessed other contraband or drugs when arrested; (6)

whether the defendant made any 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 drugs; (10) whether other

contraband or other drug paraphernalia was present; (11) whether the

defendant owned or had the right to possess the place where the drugs were

found; (12) whether the place 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 162 n.12; Beall, 237 S.W.3d at 850.

      In this case, on May 5, 2006, officers arrested Harris immediately after

he exited the white Chevrolet Malibu with license plate number 853 CDR that

he had been driving and that he had parked at a convenience store. An officer

with the Arlington Police Department testified that he spoke to Harris on

December 5, 2005, and that Harris was driving a white Chevrolet Malibu with

license plate number 853 CDR at the time. Officers searched the vehicle and

recovered a loaded shotgun with a pistol grip lying on the back seat in a black

bag, two boxes of clear plastic bags on the floorboard behind the driver’s seat,

two cell phones from the front of the vehicle, and a small canvas-type bag in

the center console containing a pocket digital scale with white residue on it and

                                       12
a plastic bag containing 70.93 grams of cocaine. A search of Harris’s person

revealed that Harris had $960 in his right front pants pocket. The vehicle was

not registered to Harris.

      A detective with the Grand Prairie Police Department testified that it is

common for individuals involved in narcotics dealing to use sandwich bags to

package narcotics, to use pocket scales, to have shotguns, to have multiple cell

phones, to drive vehicles that aren’t registered to them, and to carry large

amounts of cash.

      Harris contends that the evidence is insufficient to show that he

possessed the cocaine because he was not the registered owner or insurer of

the vehicle; no drugs or paraphernalia were found on his person; no fingerprints

were obtained tying him to the drugs, the shotgun, the cell phones, or the

scales; no information was obtained from the two cell phones concerning who

they belonged to; and he made no efforts to elude detection, nor did he make

any furtive movements or attempt to flee. Notwithstanding this evidence, the

State established multiple, logically forceful links—including that Harris was

driving the vehicle in which the drugs were found, that Harris was in close

proximity to and could easily access the drugs, that other items associated with

narcotics dealing were present in the vehicle, and that Harris had a large

amount of cash on his person—demonstrating Harris’s possession of the

                                      13
cocaine. See Evans, 202 S.W.3d at 162 n.12. Harris’s analysis ignores much

relevant evidence and does not appropriately implement the applicable

standards of review.

      Viewing the evidence in a favorable or neutral light, the evidence is legally

and factually sufficient to link Harris to the cocaine recovered from the vehicle

that he was driving.      Consequently, the evidence is legally and factually

sufficient to show that Harris possessed the cocaine. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Watson, 204 S.W.3d at 414–15, 417. We overrule

Harris’s first and second points.

                            V. E VIDENCE OF S HOTGUN

      In his third point, Harris argues that the trial court abused its discretion

by admitting in evidence the shotgun found on the back seat of the vehicle that

he was driving just before his arrest. Harris preserved for appellate review his

rules of evidence 401, 403, and 404(b) objections to the admission of the

shotgun.

      A.      Standard of Review

      We will not disturb a trial court’s evidentiary ruling absent an abuse of

discretion.   Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007).     As long as the trial court’s ruling is within the zone of reasonable

disagreement and is correct under any theory of law, it must be upheld. Id.

                                       14
      B.    Rule 401

      “All relevant evidence is admissible . . . . Evidence which is not relevant

is inadmissible.” Tex. R. Evid. 402. Evidence is relevant if it has any tendency

to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the

evidence. Tex. R. Evid. 401.

      As examined above, the State had the burden of proving that Harris

possessed narcotics as part of its prosecution of him for the offense of

possession with intent to deliver a controlled substance of four grams or more

but less than two-hundred grams.        See Tex. Health & Safety Code Ann.

§ 481.112(a)(d). A detective with the Grand Prairie Police Department testified

that it is common for individuals involved in narcotics dealing to have shotguns

or other firearms. The shotgun located on the back seat of the vehicle that

Harris was driving immediately before his arrest thus had the tendency to make

more probable Harris’s knowing possession of the cocaine. Accordingly, we

hold that the trial court did not abuse its discretion by admitting the shotgun in

evidence over Harris’s rule 401 objection. See Tex. R. Evid. 401.

      C.    Rule 403

      Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

                                       15
issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence. Tex. R. Evid. 403. Once appellant makes

a rule 403 objection, the trial court must weigh the probativeness of the

evidence to determine if it is substantially outweighed by its potential for unfair

prejudice. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

A rule 403 balancing test includes the following factors: (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest

decision on an improper basis, (4) any tendency of the evidence to confuse or

distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex.

Crim. App. 2006).

      The rules of evidence favor the admission of relevant evidence and carry

a presumption that relevant evidence is more probative than prejudicial. Jones

v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S.

832 (1997). When determining whether evidence is admissible under rule 403,

we do not consider just whether the evidence is more prejudicial than probative,

                                        16
we consider whether the probative value is substantially outweighed by the

danger of unfair prejudice. Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim.

App. 2006), cert. denied, 127 S. Ct. 1289 (2007).

      As Harris argued in the point above, the vehicle that he was driving was

not registered to him, no drugs or paraphernalia were found on his person, no

fingerprints were obtained tying him to the drugs, the shotgun, the cell phones,

or the scales, and no information was obtained from the two cell phones

concerning who they belonged to. The probative value of the shotgun was thus

considerable and significantly necessary to the State’s case because it is a link

tending to show that Harris knowingly possessed the cocaine. Weighing the

probative value of the evidence of the shotgun with the other rule 403 factors,

the trial court could have reasonably concluded that the shotgun did not have

a tendency to suggest decision on an improper basis, to confuse or distract the

jury, or to be given undue weight by the jury. Consequently, the trial court

could have reasonably concluded that the probative value of the evidence of the

shotgun was not substantially outweighed by the danger of unfair prejudice.

See Tex. R. Evid. 403. We hold that the trial court did not abuse its discretion

by admitting the shotgun in evidence over Harris’s rule 403 objection.




                                       17
      D.     Rule 404(b)

      Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. Tex. R.

Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.

1990) (op. on reh’g). This rule reflects the well-established principle that a

defendant should not be tried for some collateral crime or for being a criminal

generally.   Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987).

Evidence of prior criminal conduct may, however, be admissible if it is logically

relevant to prove some other fact, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.

R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App.

2004). For extraneous offense evidence to be admissible under rule 404(b), the

evidence must be relevant to a fact of consequence in the case apart from its

tendency to prove conduct in conformity with character.         Johnston, 145

S.W.3d at 220.

      Here, the evidence of the shotgun was relevant to prove Harris’s

knowledge that he possessed narcotics. Harris’s knowledge that he possessed

narcotics is a fact of consequence of the case apart from its tendency to prove

conduct in conformity with his character.      See id.; see also Tex. R. Evid.

404(b). Accordingly, we hold that the trial court did not abuse its discretion by

                                       18
admitting the evidence of the shotgun over Harris’s rule 404(b) objection. We

overrule Harris’s third point.

                                 VI. C ONCLUSION

      Having overruled Harris’s four points, we affirm the trial court’s judgment.




                                                   PER CURIAM

PANEL: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 4, 2008




                                       19
