Opinion filed July 31, 2014




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-12-00148-CR
                                   __________

                     JAIME DAVID GARCIA, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 32nd District Court
                             Mitchell County, Texas
                           Trial Court Cause No. 7304


                      MEMORANDUM OPINION
       The jury convicted Jaime David Garcia of possession of four grams or more
but less than 200 grams of cocaine with the intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112 (West 2010).             Appellant pleaded true to an
enhancement allegation. The jury found the enhancement allegation to be true, and
it assessed Appellant’s punishment at confinement for eighty years. In a single
issue on appeal, Appellant challenges the sufficiency of the evidence to support his
conviction. We affirm.
                                      Background Facts
       The indictment alleged that, on or about March 30, 2011, Appellant
knowingly possessed, with the intent to deliver, a controlled substance—namely,
cocaine—in an amount of four grams or more but less than 200 grams. Gary
Clark, a former Mitchell County Deputy Sheriff, testified that, on March 30, 2011,
he, Investigator Billy Sides, and Investigator Ronnie Stiltner were observing traffic
on Interstate 20 when Appellant drove by them in a pickup. Appellant exited the
highway and drove through the town of Westbrook. Deputy Clark had to drive
about seventy miles per hour through the town of Westbrook to catch up to
Appellant’s pickup. Appellant eventually pulled off the road and stopped his
pickup. Deputy Clark determined that Appellant was driving without a valid
driver’s license and arrested him for that offense.
       The officers smelled the odor of marihuana emanating from the pickup.
Deputy Clark asked K’Ana Garcia, who was in the front passenger seat of the
pickup, to get out of the pickup. Deputy Clark then searched the pickup. During
the search, Deputy Clark found a plastic bag that contained marihuana, a black
pipe, a box of sandwich bags, a set of digital scales, a straw, and a hunting knife.
Based on the results of the search, the officers arrested Appellant and K’Ana for
possession of marihuana. When Appellant realized that K’Ana was being arrested,
Appellant told Deputy Clark that “everything in the truck” belonged to him.
       Deputy Clark testified that a search of K’Ana at the jail revealed that she
was in possession of 12.6 grams of cocaine 1 at the time of her arrest. Deputy Clark
said that 12.6 grams of cocaine is a lot of cocaine and exceeds the typical amount
that would be possessed for personal use. He explained that digital scales are
commonly used for weighing narcotics. Deputy Clark testified that sandwich bags,

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        Department of Public Safety Chemist Dennis Hambrick testified that he analyzed the substance
found on K’Ana and determined that it weighed 12.6 grams and that it contained cocaine.

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such as those that he found in Appellant’s pickup, are frequently used to package
drugs for sale.   Deputy Clark explained that the type of straw he found in
Appellant’s pickup is commonly used to snort cocaine and said that the straw had a
white residue on it that appeared to be cocaine. He also said that cocaine residue
was on the console of the pickup.
      Investigator Sides testified that a white powder residue was on the digital
scales that were found in the pickup. He said that 12.6 grams of cocaine is a lot of
cocaine.   Investigator Sides explained that sellers of narcotics commonly use
digital scales to weigh drugs in connection with their sales. He said that, normally,
casual users of drugs do not use digital scales but that heavy drug users might use
digital scales in an effort to make sure that they do not get “ripped off” when they
purchase drugs. Investigator Sides testified that plastic sandwich bags are often
used to package narcotics for sale. Investigator Sides said that the type of straw
that was found in Appellant’s pickup is commonly used to snort cocaine and that
the type of pipe that was found is used to smoke small amounts of marihuana.
      K’Ana, who is Appellant’s ex-girlfriend, testified that, on March 30, 2011,
she and Appellant were driving from Colorado City to Big Spring when Deputy
Clark pulled them over.     K’Ana said that, before she and Appellant had left
Colorado City, she saw a cigarette box that contained cocaine on the console in
Appellant’s pickup. When she realized that Deputy Clark was attempting to pull
them over, K’Ana asked Appellant what she should do with the cigarette box that
contained the cocaine. According to K’Ana, Appellant told her to “throw it out.”
K’Ana testified that she instead put the cocaine in her pants, because she thought
that Deputy Clark would see her if she threw the cocaine out of the pickup.
      After K’ana was arrested and transported to jail, she learned that she was
going to be strip searched. Because K’ana realized that the cocaine in her pants
would be found during a search, she surrendered the cocaine to an officer. K’Ana
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testified that, at the time of her arrest in this case, she and Appellant were heavy
drug users.    K’Ana said that she and Appellant could have used all of the
confiscated cocaine in “[p]robably a couple of days.”
                                       Analysis
      Appellant does not challenge the sufficiency of the evidence to establish that
he possessed the cocaine. Rather, he contends that the evidence was insufficient to
establish his intent to deliver the cocaine.
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty 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; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
       “Deliver” means to transfer, actually or constructively, a controlled
substance to another. TEX. HEALTH & SAFETY CODE ANN. § 481.002(8) (West
Supp. 2013). Intent to deliver can be proved by circumstantial evidence, including
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evidence that an accused possessed the contraband. Moreno v. State, 195 S.W.3d
321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Patterson v. State,
138 S.W.3d 643, 649 (Tex. App.—Dallas 2004, no pet.); Ingram v. State, 124
S.W.3d 672, 675-76 (Tex. App.—Eastland 2003, no pet.). Factors courts consider
in determining whether an accused had the intent to deliver include: (1) the nature
of the location at which the accused was arrested, (2) the quantity of the controlled
substance in the accused’s possession, (3) the manner of packaging of the drugs,
(4) the presence or absence of drug paraphernalia (for either use or sale), (5) the
accused’s possession of large amounts of cash, and (6) the accused’s status as a
drug user. Moreno, 195 S.W.3d at 325; Williams v. State, 902 S.W.2d 505, 507
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). The number of factors present
is not as important as the logical force the factors have in establishing the elements
of the offense. Moreno, 195 S.W.3d at 326; Gilbert v. State, 874 S.W.2d 290, 298
(Tex. App.—Houston [1st Dist.] 1994, pet ref’d).           Expert testimony by an
experienced law enforcement officer may be used to establish an accused’s intent
to deliver. Moreno, 195 S.W.3d at 326; Mack v. State, 859 S.W.2d 526, 529 (Tex.
App.—Houston [1st Dist.] 1993, no pet.).
      The evidence showed that Appellant possessed 12.6 grams of cocaine, which
is a large amount of cocaine. Deputy Clark explained that such a large amount of
cocaine exceeds the amount of cocaine that is typical for personal use.
Considerably smaller amounts of cocaine have been held sufficient to support a
finding of intent to deliver. See Sneed v. State, 406 S.W.3d 638, 642 (Tex. App.—
Eastland 2013, no pet.) (finding that appellant’s possession of 6.37 grams of
cocaine, coupled with other evidence, established intent to deliver); Mack, 859
S.W.2d at 528–29 (finding that evidence established appellant’s intent to deliver
the 8.9 grams of cocaine he possessed). In this case, the officers found digital
scales and sandwich bags in Appellant’s pickup. Investigator Sides explained that
                                          5
dealers commonly use digital scales to weigh the drugs they sell. The officers
explained that dealers commonly use sandwich bags to package their drugs for
sale. Considering the above factors, we conclude that the evidence offered at trial
provided the jury with a sufficient basis to conclude, beyond a reasonable doubt,
that Appellant possessed the 12.6 grams of cocaine with the intent to deliver.
Therefore, the evidence was sufficient to support Appellant’s conviction.
Appellant’s sole issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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