                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00196-CR


BRYAN JEREMIAH WILLIAMS                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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           FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                          MEMORANDUM OPINION1

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      Appellant Bryan Jeremiah Williams appeals his conviction for possessing

between four grams and two hundred grams of cocaine while intending to deliver

it.2 In two issues, he contends that the evidence is insufficient to prove his intent




      1
         See Tex. R. App. P. 47.4.
      2
         See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(a), (d) (West
2010).
to deliver the cocaine and that the trial court erred by admitting evidence about

ammunition and a stolen gun. We affirm.

                               Background Facts

      One day in June 2010, the Gainesville Police Department (GPD)

simultaneously executed thirteen search warrants at the homes of individuals

suspected of selling cocaine. GPD Investigator Tim Green joined with a group of

officers who executed a no-knock search warrant at 812 Buck Street, where

appellant lived.3   After executing the warrant and after securing the scene,

Investigator Green found appellant standing under a carport. Close to appellant,

Investigator Green found $10,593 in cash along with appellant’s driver’s license

and his debit card. These items had been removed from appellant’s pockets by

another officer.

      Appellant eventually offered to show Investigator Green “the stuff [the

officers] were looking for.” Appellant led Investigator Green to a bedroom where

Investigator Green found a “pretty good size chunk of crack cocaine.”         The

cocaine weighed 17.74 grams, which, according to Investigator Green, was

among the larger amounts of cocaine that had been found in Cooke County. In

appellant’s house, Investigator Green also recovered a stolen handgun,

ammunition, a razor blade containing white residue, digital scales, and a letter to


      3
         Prior to June 2010, there had been a high amount of foot traffic and car
traffic at 812 Buck Street. Some of the people who had visited the home were
known to be involved with illegal drugs.


                                        2
appellant from someone who was incarcerated for a drug-related offense.

Appellant later admitted that the cocaine belonged to him and said that he had

intended to use it.4

          A Cooke County grand jury indicted appellant for possessing the cocaine

while intending to deliver it. Appellant pled not guilty. After the parties filed

various pretrial documents and presented their cases,5 the jury found appellant

guilty.       The jury heard evidence concerning appellant’s punishment and

assessed fifteen years’ confinement. The trial court sentenced him accordingly.

This appeal followed.

                               Evidentiary Sufficiency

          In his first issue, appellant contends that the evidence is insufficient to

sustain the jury’s verdict that he intended to deliver the cocaine. In our due-

process review of the sufficiency of the evidence to support a conviction, we view

all of the evidence in the light most favorable to the verdict 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); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).


          4
      Appellant also conceded in his brief that he possessed the cocaine.
Along with the cocaine, the police found a small amount of marijuana in an
automobile at the home.
          5
        Although appellant did not testify at trial, the jury heard his version of the
facts (that he possessed the cocaine but did not intend to deliver it) through the
admission of testimony that he had previously given.


                                           3
This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct.

at 2789; Isassi, 330 S.W.3d at 638.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).    Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at

638. The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13.

      “In a possession with intent to deliver case, the State must prove that the

defendant:    (1) exercised care, custody, control, or management over the

controlled substance; (2) intended to deliver the controlled substance to another;

                                        4
and (3) knew that the substance in his possession was a controlled substance.”

Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d); see Tex. Health & Safety Code Ann. § 481.112(a). Appellant argues only

that the evidence was insufficient to establish his intent to deliver.

      Intent to deliver may be established through circumstantial evidence. See

Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.).

Furthermore, “intent to deliver is a question of fact for the jury to resolve, and it

may be inferred from the acts, words, or conduct of the accused.” Taylor v.

State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Testimony by

experienced law enforcement officers may be used to establish a defendant’s

intent to deliver. Robinson v. State, 174 S.W.3d 320, 331 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d). We may consider several factors in determining such

intent, including the nature of the location where the defendant was arrested, the

quantity of drugs the defendant possessed, the manner of packaging the drugs,

the presence or absence of drug paraphernalia (for use or sale), whether the

defendant possessed a large amount of cash in addition to the drugs, and the

defendant’s status as a drug user. Jones v. State, 195 S.W.3d 279, 288 (Tex.

App.—Fort Worth 2006) (op. on reh’g), aff’d, 235 S.W.3d 783 (Tex. Crim. App.

2007); Jordan, 139 S.W.3d at 726. “The number of factors present is not as

important as the logical force the factors have in establishing the elements of the

offense.”   Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d) (op. on reh’g).


                                           5
      Appellant argues that the location where the officers found the cocaine, his

home, is not in a high drug traffic area. It is true that the evidence did not reveal

that any particular successful drug purchase had occurred at appellant’s home.

However, Investigator Green testified that during surveillance of the home, he

witnessed people known to be involved in the drug culture coming and going

from the house. Furthermore, Yusef Stevenson, a man known to Investigator

Green through previous narcotics investigations, was found inside of the house

upon the execution of the warrant.6       Thus, the jury could have reasonably

inferred from the evidence that appellant’s home was associated with the delivery

of drugs and that this factor weighed in favor of a finding of appellant’s intent to

deliver.

      Appellant next contends that the quantity of crack cocaine found in his

home is consistent with personal use rather than delivery.         But Investigator

Green testified that the quantity of cocaine found in appellant’s home, 17.74

grams, is consistent with dealing rather than using. Investigator Green explained

that most crack cocaine users use any drugs in their possession almost

immediately and are not typically found with a large amount of cocaine.

Moreover, the evidence established that the amount of appellant’s cocaine was

worth at least $1,700 and that cocaine is typically sold in .2 or .3 gram portions

worth $20. Based on this evidence, the jury could have reasonably determined


      6
       Appellant’s mother was also in the home.


                                         6
that appellant’s possessing 17.74 grams of cocaine was inconsistent with

personal use. See Rhodes v. State, 913 S.W.2d 242, 250–51 (Tex. App.—Fort

Worth 1995) (finding that evidence was sufficient to establish a defendant’s intent

to deliver 2.09 grams of crack cocaine), aff’d, 945 S.W.2d 115 (Tex. Crim. App.),

cert. denied, 522 U.S. 894 (1997); see also Mack v. State, 859 S.W.2d 526, 528–

30 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (holding that 8.9 grams of crack

cocaine was consistent with a defendant’s intent to distribute).

      Appellant also argues that the evidence does not indicate intent to deliver

because the crack cocaine was found in a solid chunk in one bag and no small

baggies, which are frequently used for distribution, were found in his home.

Appellant claims that this lack of evidence emphasizes that his cocaine was for

personal use. But although the police did not find small plastic bags, they did

find, in various parts of the house, a razor blade, a stolen handgun, ammunition,

and two sets of digital scales with a three pound limit.           Investigator Green

testified that drug dealers frequently use digital scales to measure drug quantities

and that scales of the size found in appellant’s home indicate that they were used

to measure higher quantities than that of a typical drug user. Also, the jury heard

that drug dealers tend to use knives or razor blades to cut the large cookie of

cocaine into smaller pieces for individual sale. Furthermore, Investigator Green

testified that drug dealers usually keep a firearm “to protect their interest[s]” and

that those handguns are frequently stolen by drug users and exchanged with

dealers for drugs.     See Leadon v. State, No. 02-08-00163-CR, 2009 WL


                                         7
1815663, at *3 (Tex. App.—Fort Worth June 25, 2009, no pet.) (mem. op., not

designated for publication) (considering a gun found in the defendant’s home

with drugs as evidence of the defendant’s intent to distribute).7

       Although the police did not find plastic baggies, the record does not

establish that they found evidence that appellant is a drug user, such as a pipe.

See Jordan, 139 S.W.3d at 726–27 (holding that although the police found no

evidence that the defendant intended to distribute drugs, they also found no

evidence indicating an intent to use the drugs, and the jury could therefore

reasonably find an intent to distribute). Based on the other evidence presented,

the jury could have reasonably found that appellant intended to distribute his

cocaine despite the fact that no small baggies were found in his home. See

Brown v. State, No. 02-04-00564-CR, 2006 WL 412466, at *3 (Tex. App.—Fort

Worth Feb. 23, 2006, no pet.) (mem. op., not designated for publication) (holding

similarly).




       7
        In his brief, appellant relies on a federal case in which the Fifth Circuit
held that the evidence was insufficient to prove the defendant’s intent to deliver
drugs because, in part, the gun that an officer had found was not physically close
to the drugs. See United States v. Hunt, 129 F.3d 739, 743 (5th Cir. 1997). Like
in Hunt, the gun and ammunition in this case were not close to the drugs. But in
this case, unlike in Hunt, the State presented evidence of a large amount of cash
and of the presence of scales. Id. at 744. Also, the weight of the drugs at issue
in Hunt was less than half of the weight in this case. Id. at 741. Finally, there is
no indication from the opinion in Hunt that the gun involved in that case was
stolen, and the evidence in this case established that the gun was stolen and that
drug dealers often receive stolen guns in exchange for delivering drugs.


                                         8
      Next, appellant argues that he has a legitimate explanation for the large

amount of cash seized by the police. During the search of appellant’s home, the

police recovered $10,593. Appellant claims that he received $7,000 for a car that

his mother had previously purchased for $150.           He also asserts that the

remaining $3,593 was given to him by the mother of his children to buy a music

studio. Investigator Green testified that drug dealers tend to keep large sums of

cash to make transactions. Investigator Green also testified that drug dealers

typically keep the cash on their person, rather than hidden elsewhere, to prevent

theft. Finally, Investigator Green testified that “rocks” of cocaine, weighing .2 to

.3 grams are typically sold for $20 apiece. The cash that appellant possessed

contained many $20 bills. Based on Investigator Green’s testimony, the jury

could have reasonably concluded that appellant possessed a large amount of

cash because of his position as a drug dealer instead of other reasons.

      Finally, Investigator Green testified that his investigation prior to the

execution of the search warrant provided evidence of appellant’s involvement in

the delivery of cocaine.    Specifically, appellant had driven a car from which

another person had exited with the purpose of delivering cocaine.

      Viewing the evidence in the light most favorable to the jury’s verdict and

presuming that the jury resolved any conflicting inferences from the evidence in

favor of the verdict, we conclude that a rational jury could have determined

beyond a reasonable doubt that appellant intended to deliver the cocaine. See




                                         9
Tex. Health & Safety Code Ann. § 481.112(a); Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Isassi, 330 S.W.3d at 638. We overrule appellant’s first issue.

                              Preservation of Error

      In his second issue, appellant argues that the trial court erred by admitting

the stolen gun and ammunition that the police found in his home. Appellant

contends that the gun and ammunition were more prejudicial than probative.

See Tex. R. Evid. 403. The State contends that appellant forfeited his complaint

about the admission of the evidence. We agree with the State.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh’g). Preservation of error is a systemic requirement. Archie v.

State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007).

      The purpose of requiring a timely objection is to give the trial court or the

opposing party the opportunity to correct the error or remove the basis for the


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objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). If a

defendant fails to object until after an objectionable question has been asked and

answered, and he can show no legitimate reason to justify the delay, his

objection is untimely, and any claim of error is forfeited. Luna v. State, 268

S.W.3d 594, 604 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 72 (2009).

      In Ratliff v. State, Ratliff was convicted of possession of less than one

gram of methamphetamine. 320 S.W.3d 857, 858 (Tex. App.—Fort Worth 2010,

pet. ref’d). The police arrested Ratliff for possessing two marijuana cigarettes

and then, upon searching the car he had been in, the police discovered

methamphetamine among other drug paraphernalia. Id. at 859. Ratliff argued

that the trial court erred by admitting the physical evidence that was obtained

from the car. Id. at 860. Ratliff filed a motion to suppress but did not obtain a

pretrial hearing or ruling on the motion. Id. at 861. Furthermore, he allowed a

police officer to answer several questions regarding the evidence confiscated

from the car before objecting to the admission of the physical evidence itself. Id.

We held that Ratliff’s failure to object to the officer’s testimony describing the

evidence from the car forfeited any error associated with his objection to the

State’s later introduction of the evidence. Id. at 862; see Turner v. State, 642

S.W.2d 216, 217 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (concluding that

a defendant forfeited his argument by waiting to object to the admission of

evidence until after a police officer extensively testified about the evidence).




                                         11
      Investigator Green answered several questions regarding the stolen

handgun before appellant objected. When asked what he found in appellant’s

house, Investigator Green stated, without objection, that he found a .380 caliber

handgun and .380 caliber ammunition. Investigator Green then identified State’s

Exhibit 2, a map of the layout of appellant’s house, which included a photograph

of the handgun labeled as “STOLEN .380 CALIBER HANDGUN” and a

photograph of the ammunition labeled as “.380 CALIBER AMMUNITION.”

Appellant did not object to the admission of State’s Exhibit 2.       Later in his

testimony, Investigator Green discussed, without an objection under Texas Rule

of Evidence 403, State’s Exhibit 7, another photograph of the box of ammunition,

and State’s Exhibit 11, another photograph of the handgun.

      Eventually, appellant objected that testimony about the gun and

ammunition was more prejudicial than probative and that the actual admission of

the gun and ammunition was more prejudicial than probative. But at that point,

like in Ratliff, significant evidence had already been admitted, without objection,

about the ammunition and the gun.

      We conclude that because appellant did not timely object, he forfeited any

error associated with the admission of the evidence about the gun and

ammunition. See Tex. R. App. P. 33.1(a); Marini v. State, 593 S.W.2d 709, 714

(Tex. Crim. App. [Panel Op.] 1980); Ratliff, 320 S.W.3d at 862 (explaining that a

defendant’s “failure to object at the time [a detective] specifically described the

physical evidence and explained how he found that evidence forfeited any error


                                        12
associated with [the defendant’s] objection to the State’s later introduction of the

evidence”); Tell v. State, 908 S.W.2d 535, 543–44 (Tex. App.—Fort Worth 1995,

no pet.) (holding that the defendant failed to preserve error by allowing several

questions and answers regarding a ski mask before finally objecting); Thomas v.

State, 884 S.W.2d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d) (holding

similarly). We overrule appellant’s second issue.

                                      Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgment




                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

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

DELIVERED: November 1, 2012




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