                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00051-CR

LAWRENCE EDWARD BLUE,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 11-02471-CRF-272


                           MEMORANDUM OPINION


       The jury convicted Lawrence Blue of the offense of possession with intent to

deliver a controlled substance, cocaine, in a drug free zone.       The jury assessed

punishment at forty-five years confinement. We affirm.

                               Sufficiency of the Evidence

       In his first issue on appeal, Blue argues that the evidence is insufficient to

support his conviction. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Blue v. State                                                                               Page 2
Facts

        On February 23, 2011, the Bryan Police Department executed a narcotics search

warrant. There were three houses that were the subject of the search, and Lawrence

Blue was a subject named in the warrant. Officer Jon Agnew, along with two other

officers, conducted surveillance for the search warrant, and Officer Agnew provided

information to the officers executing the warrant. Officer Agnew testified that he set up

around 6:30 a.m. and that he observed Blue drive up to one of the houses in a white

pickup. Blue got out of the pickup and went in the house, but left in the pickup a short

time later. Blue returned in the pickup and went back into the house carrying a plastic

bag. Blue went back and forth between the three houses that were the subject of the

search warrant and then sat outside in a chair between the properties.

        Officer Agnew testified that Blue sat in the chair for approximately ten minutes

and then a car drove up to the property. Blue got up from the chair, went and got

something out of a tree, and then approached the car. Blue walked to the driver’s side

window of the car and an exchange took place. The car left, and Blue walked back to

the tree and placed something back into the tree. Officer Agnew testified that he was

certain he observed a drug deal. Officer Agnew notified Sergeant Gabriel Alvarez by

radio of his observations. Sergeant Alvarez then brought in the team to execute the

search warrant. Officer Agnew kept surveillance on the area, particularly the tree, until

the team arrived to execute the warrant.        Officer Agnew stated that no one else

approached the tree prior to the officers arriving.




Blue v. State                                                                      Page 3
        Sergeant Alvarez testified that he was the first person who went to the tree after

Officer Agnew’s observations. Sergeant Alvarez stated that there was a razor blade

stuck in the tree. There was also a divot in the tree and inside of the divot was a plastic

bag. There were forty-five rocks in the plastic bag that were determined to be crack

cocaine. Sergeant Alvarez testified that the amount of cocaine was consistent with that

of a drug dealer.

Possession

        Blue specifically argues that the evidence is insufficient to show that he

knowingly or intentionally possessed the cocaine. To prove unlawful possession of a

controlled substance, the State was required to prove that: 1) Blue exercised control,

management, or care over the substance; and 2) Blue knew that the matter possessed

was contraband.      Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011);

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether this evidence is

direct or circumstantial, "it must establish, to the requisite level of confidence, that the

accused's connection with the drug was more than just fortuitous. This is the whole of

the so-called 'affirmative links' rule." Poindexter v. State, 153 S.W.3d at 405-6. The

affirmative links rule is designed to protect the innocent bystander from conviction

based solely upon his fortuitous proximity to someone else's drugs. Poindexter v. State,

153 S.W.3d at 406. When 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.    The

Blue v. State                                                                           Page 4
affirmative link may be shown by direct or circumstantial evidence, but in either case it

must establish, to the requisite level of confidence, that the accused's connection with

the drug was more than just fortuitous. Id.

        The evidence shows that Blue was alone outside the houses subject to the search

warrant. After a car pulled up, Blue went to a tree, took something from the tree, went

to the driver’s side of the car, and exchanged something with the driver. The car left,

and Blue returned something to the tree. Officers maintained surveillance and no one

else approached the tree after Officer Agnew observed the transaction between Blue

and the driver of the car. Officer Agnew testified that he was certain he observed a

drug transaction. A jury could reasonably find beyond a reasonable doubt that Blue’s

connection to the cocaine was much more than just a fortuitous accident. See Blackman

v. State, 350 S.W.3d at 596. We find that the evidence is sufficient to show that Blue

possessed the cocaine. We overrule the first issue.

                                  Admission of Evidence

        In his second issue, Blue argues that the trial court erred in admitting evidence of

items found at the location where he was arrested. In the third issue, he complains that

the trial court erred in admitting extraneous offense evidence.

         Relevant evidence is "evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more or less probable

than it would be without the evidence."        TEX. R. EVID. 401.    Relevant evidence is

generally admissible. TEX. R. EVID. 402. Even relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

Blue v. State                                                                         Page 5
confusion of the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence. TEX. R. EVID. 403. Absent an abuse of

discretion, we will not disturb a trial court's decision whether to admit or exclude

evidence. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Under the abuse

of discretion standard of review, we will uphold a trial court's evidentiary ruling so

long as that ruling is within the zone of reasonable disagreement. Id.

Evidence Admitted at Trial

        Blue contends that the trial court erred in admitting evidence of items found at

the location where he was arrested during the execution of the search warrant. Officer

Randall Hall testified that he searched the outside of one of the houses where Blue was

located. Officer Hall stated that he was at the back of the residence and that he saw a

metal toolbox that goes on the back of a pickup. He cut the locks on the toolbox and

inside he found firearms and a bag containing $14,385.

        Officer Paul Mahoney testified that drug dealers keep their money and drugs in

separate locations. Officer Mahoney further testified that it is common for drug dealers

to have a weapon to protect their drugs and money.

        The State was required to prove that Blue possessed the cocaine with the intent

to deliver. Evidence that weapons were found in close proximity to Blue was relevant

to show that the weapons were used for protection of the drugs. See Levario v. State, 964

S.W.2d 290, 297 (Tex. App.─El Paso 1997, no pet.); Hawkins v. State, 871 S.W.2d 539, 541-

2 (Tex. App.─Fort Worth 1994, no pet.). The evidence makes it more probable that Blue



Blue v. State                                                                      Page 6
possessed the drugs with the intent to deliver. The trial court found that the probative

value of the evidence outweighed the prejudicial effect and admitted the evidence with

a limiting instruction. The trial court did not abuse its discretion in admitting the

evidence. We overrule Blue’s second issue.

Extraneous Offenses

        Officer Mahoney testified that he conducted three undercover drug transactions

involving Blue prior to Blue’s arrest. Officer Mahoney stated that he purchased crack

cocaine from Blue in a constructive delivery. Officer Mahoney indicated to Blue that he

wanted to purchase forty dollars worth of crack cocaine, and another individual

delivered the crack cocaine to Officer Mahoney. Officer Mahoney testified that he

purchased the crack cocaine with impressed funds and that those funds were recovered

in the tool box at the residence.

        Rule 404(b) of the Rules of Evidence provides that evidence of extraneous

offenses is not admissible "to prove the character of a person in order to show action in

conformity therewith." TEX. R. EVID. 404(b). However, Rule 404(b) allows evidence of

extraneous offenses if the evidence has relevance apart from character conformity. For

example, extraneous offense evidence may be admissible to prove motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX.

R. EVID. 404(b); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). Evidence that

Blue had constructively delivered drugs to Officer Mahoney about two weeks before his

arrest was relevant to show that, on the date of his arrest, he possessed the cocaine with

the intent to deliver. Gately v. State, 321 S.W.3d 72, 81 (Tex. App.─Eastland 2010, no

Blue v. State                                                                        Page 7
pet.). The trial court did not abuse its discretion in admitting the extraneous offense

evidence. We overrule Blue’s third issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 7, 2013
Do not publish
[CRPM]




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