AFFIRM; and Opinion Filed March 13, 2014.




                                           Court of Appeals
                                                           S      In The


                                    Fifth District of Texas at Dallas
                                                       No. 05-12-00958-CR
                                                       No. 05-12-00959-CR

                                        GREGORIO DIAZ LOPEZ, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                              On Appeal from the Criminal District Court No. 4
                                           Dallas County, Texas
                            Trial Court Cause Nos. F09-40834-K and F09-40835-K

                                          MEMORANDUM OPINION
                                    Before Justices Francis, Lang-Miers, and Lewis
                                               Opinion by Justice Lewis
          A jury convicted appellant Gregorio Diaz Lopez of two offenses: knowingly possessing,

with intent to deliver, four or more but less than 200 grams of both heroin and cocaine. The trial

court assessed his punishment at five years’ confinement for each offense. In three issues,

appellant challenges the sufficiency of the evidence supporting his convictions and the

assessment of court costs against him. 1 We affirm the trial court’s judgments.

                                                             Background

          Police officers received a tip about drug activity at a Mesquite apartment and set up

surveillance around the complex. Appellant and his cousin, George Diaz, Jr., left that apartment

     1
       Appellant initially raised two additional issues concerning the adequacy of what he called the “accomplice-witness testimony” offered by
his witness, George Diaz, Jr. The State cited authorities establishing the testimony of appellant’s own witness was not accomplice-witness
testimony that required corroboration. See, e.g. Johnson v. State, 853 S.W.2d 527, 531 (Tex. Crim. App. 1992). In his reply brief, appellant
acknowledged the State’s legal argument was correct, so we need not address these issues further.
at approximately nine o’clock that night. The officers stopped the two men, who told officers

they were on their way to the gym to lift weights. Officers obtained consent to search the men’s

persons. The officers found marijuana and heroin in Diaz’s pockets; they did not find any drugs

in appellant’s possession. Shortly thereafter, a third man left the apartment, and police entered

the apartment to perform a protective sweep. They determined that only this third individual had

been present in the apartment when appellant and Diaz left and that no one else had entered in

the meantime. Police discovered an open shoe box on the kitchen counter that contained a

digital scale, a razor blade with heroin residue on it, small empty baggies, and a baggie

containing marijuana. The police then obtained a search warrant and found large amounts of

heroin and cocaine throughout the apartment.          In one bedroom they found a duffel bag

containing appellant’s personal belongings and just under six ounces of heroin. Officers also

discovered appellant’s driver’s license in the apartment kitchen.

       Appellant was arrested and charged with possession with intent to distribute heroin and

cocaine. Police officers involved in the surveillance and search testified at appellant’s trial.

Diaz testified for the defense. He acknowledged that he and others kept drugs in the Mesquite

apartment and dealt those drugs on a daily basis. Diaz testified, however, that he had an

agreement with the other occupants of the apartment to keep the drugs hidden during the time

appellant was staying there. Diaz testified appellant knew nothing about the drugs in the house

or the sales taking place connected with those drugs. The jury found appellant guilty on both

counts, and the trial court assessed his punishment at a term of five years for each offense.

       In this Court, appellant raises three issues, challenging the sufficiency of the evidence

supporting the jury’s verdicts and the trial court’s assessment of costs.




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                                  Sufficiency of the Evidence

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

conviction because there are no affirmative links connecting him to the contraband. Thus, he

argues, there was no evidence he unlawfully possessed the drugs. To prove unlawful possession

of a controlled substance, the State must prove that the accused exercised control, management,

or care over the substance, and that the accused knew the matter possessed was contraband.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State’s evidence may be

direct or circumstantial, but it must establish that the accused’s connection with the drug was

more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “This

is the so-called ‘affirmative links’ rule which protects the innocent bystander—a relative, friend,

or even stranger to the actual possessor—from conviction merely because of his fortuitous

proximity to someone else’s drugs.” Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App.

2006) (internal footnote omitted).    A defendant’s mere presence where drugs are found is

insufficient alone to establish the defendant’s possession of the drugs. Id. at 162. But a

defendant’s presence or proximity to the drugs, when combined with other evidence, can suffice

to establish possession beyond a reasonable doubt. Id. Ultimately, the evidence is sufficient if—

when the evidence is examined in the light most favorable to the judgment—any rational trier of

fact could have found that appellant possessed the contraband beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Because appellant did not have exclusive possession of the apartment where the

contraband was found, the State must connect him to the heroin and cocaine found there. See

Brown, 911 S.W.2d at 748. This Court has looked to a nonexclusive list of possible links that

can make that connection: (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

                                                 –3–
the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether

the defendant possessed other contraband; (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 the defendant owned

or had the right to possess the place where the drugs were found; (11) whether the place the

drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant

possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor v.

State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729,

732 (Tex. App—Dallas 1994, pet. ref’d). We are less concerned with the number of links than

with the degree to which the links tend to connect the defendant to the contraband. See Evans,

202 S.W.3d at 162; Taylor, 106 S.W.3d at 831.

       In this case, a number of these factors, alone and in combination, tend to connect

appellant affirmatively to the drugs found in the apartment. Employing the numbers associated

with the factors listed above, we consider the following evidence: (1) appellant was present

when heroin was found in his cousin’s pocket, and appellant had left the apartment only minutes

before heroin and cocaine were found there; (2) drugs were in plain view in the apartment shortly

after appellant exited; (3) appellant was staying at the apartment where the drugs were found,

and almost six ounces of heroin was found in the closet of the specific bedroom where evidence

indicated he was staying; (5) police also found marijuana and drug paraphernalia in the

apartment; (9) officers testified to smelling both marijuana and heroin in the apartment; (10)

appellant resided at, and thus had the right to possess, the place where the drugs were found; (11)

the apartment, of course, was an enclosed area; significantly, it was a relatively small area—

estimated in police testimony to contain approximately 800 square feet; (12) testimony




                                               –4–
confirmed the testing of more than 112 grams of heroin and more than four grams of cocaine

seized in this case.

        Other evidence also supports a finding appellant exercised some control over the drugs.

Diaz admitted carrying two ounces of heroin when stopped, worth $2600; he conceded he had

arranged to sell the heroin when he and appellant arrived at the gym. There was testimony that

drug dealers, especially juveniles like Diaz, were often accompanied by individuals who could

provide protection to the dealer himself during a sale. Appellant’s driver’s license was found in

a kitchen drawer, in close proximity to drugs and paraphernalia being used that night.

        There was conflicting testimony at trial concerning how long appellant had been staying

at the apartment: officers said appellant told them he had been at the apartment for a month;

Diaz testified appellant had been there only six days. However, Diaz testified he conducted

between fifteen and thirty drug sales a day and that “on a good day,” he would take in $15,000.

Given the presence of such a large amount of contraband and the large amount of drug activity

going on around him, a jury could have inferred appellant’s knowledge of those drugs and that

activity, even if he had only been present for six days.

        We conclude the direct and circumstantial evidence sufficiently links appellant to the

heroin and cocaine seized in this case. Viewing the evidence in the light most favorable to the

judgments, we conclude a rational juror could have found beyond a reasonable doubt that

appellant exercised care, custody, and management over the seized drugs and knew they were

contraband. See Jackson, 443 U.S. at 319. Accordingly, we overrule appellant’s first issue.

                                           Court Costs

        In his two remaining issues, appellant argues the evidence is insufficient to support the

trial court’s assessment of court costs against appellant in both cases because the clerk’s records

do not contain appropriate written bills of cost. This Court obtained supplemental clerk’s

                                                –5–
records of the costs in both cases below, and appellant objected to those supplements. The

record before us contains the bills of costs. Appellant’s complaints have been addressed and

rejected. See Johnson v. State, No. PD-0193-13, 2014 WL 714736, at *4–8 (Tex. Crim. App.

Feb. 26, 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d).

We overrule appellant’s objections to the supplemental records, and we decide his final two

issues against him.

       We affirm the trial court’s judgments.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

120958F.U05




                                                –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GREGORIO DIAZ LOPEZ, Appellant                     On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-12-00958-CR        V.                       Trial Court Cause No. F09-40834-K.
                                                   Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of March, 2014.




                                                   /David Lewis/
                                                   DAVID LEWIS
                                                   JUSTICE




                                             –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GREGORIO DIAZ LOPEZ, Appellant                     On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-12-00959-CR        V.                       Trial Court Cause No. F09-40835-K.
                                                   Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of March, 2014.




                                                   /David Lewis/
                                                   DAVID LEWIS
                                                   JUSTICE




                                             –8–
