Affirmed and Memorandum Opinion filed January 27, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00082-CR

                 RAYMOND EUGENE HARVEY, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1371500

                MEMORANDUM                     OPINION


      Appellant Raymond Eugene Harvey appeals his conviction for possession
with intent to deliver between four and 200 grams of cocaine on the grounds that
(1) the evidence is insufficient to support his conviction, and (2) the statutory
definition of “adulterants and dilutants” is facially unconstitutional. See Tex.
Health & Safety Code Ann. § 481.112 (West, Westlaw through 2013 3d C.S.). We
affirm.
                                   BACKGROUND

      On December 11, 2012, Officer Leonard Smith of the Houston Police
Department went to a residence at 5243 Dumore because he had received
notification from citizens and other officers that illegal narcotics potentially were
being sold from the house at that address. Smith was familiar with the house
because he previously had arrested people who were at that location or were
leaving the location. When Smith arrived at the Dumore location he observed an
African-American male walk out of the house and approach a vehicle where he
made a hand-to-hand transaction through the open window of the car. Based on his
experience and training, Smith believed he had witnessed a narcotics transaction.
When the African-American male saw the marked patrol car approaching the
house, he “immediately had a startled look on his face and turned and made
straight back for the house, walked real quickly back toward the house.”

      Smith followed the car as it drove away from the house. He stopped the
driver for a traffic violation and found $850.00 in the driver’s purse but no
narcotics in the car. Smith returned to the house and knocked on the front door.
Appellant came to the front door, opened it, saw Smith, and immediately closed
the front door. Smith asked appellant if he lived at the house. Appellant, answering
through a side window, told Smith he had lived in the house for four months. Prior
to this encounter, Smith had seen appellant at the house once before. In response to
Smith’s questions, appellant gave a false name and two false birthdates. Before
leaving the house, Smith made note of several municipal code violations.

      Smith returned to the house on December 17, 2012, with two other officers
and issued a citation to appellant for the municipal code violations. Upon learning
appellant’s identity, Smith also learned of an outstanding arrest warrant for
appellant due to a parole violation.

                                         2
      Kenneth Norris, appellant’s cousin, also was present on the property on
December 17. Norris explained that his and appellant’s grandmother had owned
the house, and that the status of ownership was pending the probate of her estate.
Norris gave consent to search the house. Norris also told Smith that appellant was
living in the house.

      Officers found a key to the house in appellant’s pocket and used it to gain
entry to search the house. When Smith entered the house he saw lawn equipment
stacked throughout the house, a partially caved-in roof, and urine and feces all over
the house from a dog that was tied up outside the garage. The only livable room in
the house was the front room from which appellant had spoken with Smith on
December 11. Officers found no other individual in the house.

      Officer Michael Glover entered the house on December 17, 2012, and also
noticed trash, lawn equipment, and the partially caved-in roof. Glover recovered
approximately 36 grams of crack cocaine from the refrigerator in the house. The
refrigerator contained very little food and three boxes of baking soda, which
Glover testified is commonly used in making crack cocaine.

      In his pocket, appellant had the key to the house and the keys to one of the
cars parked in the driveway. Officer Robert Muller testified that he had seen
appellant at the house at least six times. A chemist testified that the recovered
cocaine weighed 34.09 grams.

                                     ANALYSIS

      I.     The evidence is sufficient to support appellant’s conviction

      In his first issue appellant contends the evidence is insufficient to support his
conviction because the State failed to show sufficient links between appellant and
the controlled substance, and failed to prove appellant had custody and control

                                          3
over the substance. Specifically, appellant contends there is no evidence that
appellant lived at the residence where the cocaine was seized.

       We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single legal
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See
Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App. 2013); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

       When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences from it, whether any rational factfinder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011); see also Jackson, 443 U.S. at 319. The jury is
the exclusive judge of the credibility of witnesses and the weight to be given to the
evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We
defer to the jury’s responsibility to fairly resolve or reconcile conflicts in the
evidence. Id. We draw all reasonable inferences from the evidence in favor of the
verdict. Id.

       A person commits an offense if he knowingly or intentionally possesses
cocaine weighing, by aggregate weight, including adulterants and dilutants, four
grams or more but less than 200 grams. Tex. Health & Safety Code Ann. §
481.112(d). To prove possession, the State must show the accused (1) exercised
control, management, or care over the contraband, and (2) knew the substance
possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.
2006); Roberts v. State, 321 S.W.3d 545, 548 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). Possession may be proved through either direct or circumstantial
evidence. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

                                          4
      When the accused is not in exclusive possession or control of the place
where contraband is discovered, the State must show additional facts and
circumstances affirmatively linking the accused to the contraband to show the
accused’s knowledge of or control over the contraband. Id. at 406; Roberts, 321
S.W.3d at 549. We consider the totality of the circumstances when determining
whether the accused is linked to the recovered contraband. Roberts, 321 S.W.3d at
549. The accused’s connection with the contraband must be “more than just
fortuitous.” Poindexter, 153 S.W.3d at 405–06. Mere presence at the scene where
contraband is found is insufficient, by itself, to establish possession. Evans, 202
S.W.3d at 162. Presence or proximity, combined with other evidence or links may
be sufficient to establish the element of possession beyond a reasonable doubt. Id.
The number of links is not dispositive; establishing possession depends on the
logical force of all the evidence. Id.

      The following non-exclusive “affirmative links” have been recognized as
sufficient, either singly or in combination, to establish a person’s connection to
contraband: (1) the accused’s presence when the search was conducted; (2)
whether the contraband was in plain view; (3) the accused’s proximity to and the
accessibility of the contraband; (4) whether the accused was under the influence of
narcotics when arrested; (5) whether the accused possessed other contraband or
narcotics when arrested; (6) whether the accused made incriminating statements
when arrested; (7) whether the accused attempted to flee; (8) whether the accused
made furtive gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the accused
owned or had the right to possess the place where the contraband was found; (12)
whether the contraband was found in an enclosed place; (13) whether the accused
was found with a large amount of cash; and (14) whether the conduct of the


                                         5
accused indicated a consciousness of guilt. Id. at 162 n. 12; Olivarez v. State, 171
S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

      Appellant argues that the evidence is insufficient to support his conviction
because (1) appellant did not have exclusive possession of the house; (2) the
contraband was not found in plain view; (3) the house was not in livable condition;
(4) appellant was not in possession of, or under the influence of, narcotics; (5)
appellant made no incriminating statements; (6) no fingerprints or DNA were
collected; (7) appellant did not attempt to flee or make furtive gestures; and (8)
there was no odor of contraband in the house.

      The jury heard evidence that appellant had been seen at the house several
times including six days earlier when he told Smith that he lived at the house.
Although the ownership of the house was not yet determined, appellant had a key
to the house in his pocket and keys to one of the cars in the driveway. Appellant
had been observed conducting what officers believed to be a hand-to-hand drug
transaction in front of the house six days before appellant’s arrest. Officers did not
see any other individuals in the house on either December 11 or December 17.
Appellant’s failure to give a real name or birthdate on December 11 can be
considered as evidence indicating a consciousness of guilt. See Ly v. State, 273
S.W.3d 778, 782 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (lying to law
enforcement officers demonstrates a consciousness of guilt).

      Appellant relies on Allen v. State, 249 S.W.3d 680, 691 (Tex. App.—Austin
2008, no pet.), in which the Austin Court of Appeals concluded that the evidence
was insufficient to support a possession-of-narcotics conviction. The facts in Allen
are distinguishable from the facts in this case. In Allen, the evidence only
established that the defendant was present in an apartment in which she did not
reside when cocaine was found secreted throughout the house: in a plastic bag

                                          6
within a closed dog food bag in the dining room; under the kitchen sink; in a
kitchen cabinet; and on a platter on top of a refrigerator. The Austin Court of
Appeals held that this evidence was legally insufficient to support a conviction for
possession of cocaine. Allen, 249 S.W.3d at 695–97, 703. In this case, appellant
admitted to living in the house; the cocaine was found in the refrigerator and was
immediately apparent when opening the refrigerator; appellant initially lied to law
enforcement officers about his identity; and appellant had been seen conducting a
hand-to-hand transaction in front of the house, which officers suspected was a drug
transaction.

      In deciding whether the evidence is sufficient to link the cocaine to
appellant, the jury as the fact finder is the exclusive judge of credibility of the
witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at
406. The jury must resolve conflicts in the evidence and is free to accept or reject
any or all of the evidence presented by either side. See Lancon v. State, 253
S.W.3d 699, 706 (Tex. Crim. App. 2008); Johnson v. State, 23 S.W.3d 1, 7 (Tex.
Crim. App. 2000). Based upon the verdict, the jury chose to believe that appellant
possessed the cocaine and knew it was in the refrigerator of the house in which he
lived. The jury was in the best position to evaluate the credibility of the witnesses,
and we afford due deference to this determination. See Marshall v. State, 210
S.W.3d 618, 625 (Tex. Crim. App. 2006).

      The absence of several links—no attempt to flee, no furtive gestures, no
large amount of cash—is not dispositive. Each case must be determined on its own
facts, and factors that contribute to the sufficiency of the evidence in one situation
may be of little value under different facts. See Roberts, 321 S.W.3d at 552. We
conclude that the links established by the evidence in this case are sufficient to
support a finding that appellant knowingly possessed the cocaine. We overrule

                                          7
appellant’s first issue.

       II.    Appellant waived his constitutional challenge.

       In his second issue appellant contends the statutory definition of “adulterants
and dilutants” is facially unconstitutional and void for vagueness in contravention
to the rights of criminal defendants under the due process clauses of the United
States Constitution. Because appellant did not present this challenge to the trial
court, we hold he has waived this complaint. See Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009) (holding facial constitutional challenge must be
presented to trial court first to be preserved for appeal). Because he did not
preserve error, we overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                       /s/       William J. Boyce
                                                 Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                             8
