                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-163-CR


LAMONT TERRELL LEADON                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                   Introduction

      Appellant Lamont Terrell Leadon appeals his conviction for possession of

cocaine with intent to deliver.         See Tex. Health & Safety Code Ann.

§ 481.102(3)(D) (Vernon Supp. 2008), § 481.112(d) (Vernon 2003). In one

issue, he contends that the evidence is legally and factually insufficient to prove

his intent to deliver the cocaine. We affirm.



      1
          … See Tex. R. App. P. 47.4.
                               Background Facts

      On May 9, 2007, a Fort Worth Police Department (FWPD) SWAT team

executed a search warrant at a “dope house” owned by Leadon’s mother; 2 the

team was looking for crack cocaine. The SWAT team pried open burglar bars

that blocked the front door of the residence and entered inside it. Members of

the team saw a loaded .38 caliber semi-automatic handgun near what appeared

to be crack cocaine on a table in the living room. There was also a piece of

tape on the floor in front of the table, between the table and the front door.

      FWPD Officer Ken Clowers found Leadon on the kitchen floor; officers

also found several other people in the residence. Officer Clowers and FWPD

Officer Jimmy Ferguson, who was also in the kitchen, both saw an empty pistol

holster on Leadon’s belt near his right hip.

      Officer Clowers put handcuffs on Leadon to temporarily detain him for

questioning in connection with the search warrant and escorted him out of the

house. He then turned Leadon over to the perimeter team, which is a group of

officers assigned to cover the outside area surrounding the house and to

interview those detained. FWPD Officer R.M. Salazar gained Leadon’s consent

to search him; Officer Salazar found a plastic bag containing crack cocaine in



      2
       … At the time of Leadon’s arrest, his mother had rented the house to a
third party.

                                       2
Leadon’s front pants pocket. Officer Salazar saw the holster on Leadon’s belt

but did not take it into evidence because he did not realize there was a weapon

in the house. A chemist later weighed the cocaine at 11.94 grams.

      The grand jury indicted Leadon with possession with intent to deliver

cocaine of more than four but less than two hundred grams. Leadon pled not

guilty and “not true” to a deadly weapon allegation. After the parties filed

various pretrial documents and presented their cases, the jury found him guilty,

but it found that the deadly weapon allegation was not true. Leadon elected

to have the trial judge determine punishment, and the judge sentenced him to

twenty years’ confinement. Leadon timely filed his notice of this appeal.

                              Standards of Review

Legal sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order 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); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 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

                                         3
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778.

      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 (Vernon 1979); Brown v.

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

2075 (2009). Thus, when performing a legal sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

      Instead, we “determine 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). In determining the legal sufficiency of the

evidence to show an appellant’s intent, and faced with a record that supports

conflicting inferences, we “must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflict in favor

of the prosecution, and must defer to that resolution.” Matson v. State, 819

S.W.2d 839, 846 (Tex. Crim. App. 1991).




                                      4
Factual sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704–05

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.              A factual

sufficiency review of circumstantial evidence is the same as a review of direct

evidence.    King v. State, 29 S.W .3d 556, 565 (Tex. Crim. App. 2000);

Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (reasoning that

“[c]ircumstantial evidence, by itself, may be enough to support the jury’s

verdict”).

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

                                        5
that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim.

App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

      Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an

evaluation of credibility and demeanor, and those jurors were in attendance

when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless

we conclude that it is necessary to correct manifest injustice, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Id. at 9. Our deference

in this regard safeguards the appellant’s right to a trial by jury. Lancon, 253

S.W.3d at 704.

                                    Analysis

      The jury convicted Leadon for possessing while intending to deliver

cocaine. “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

                                        6
another; 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).

      Leadon contends in his only issue that the evidence is legally and factually

insufficient to prove his intent to deliver. We disagree.

      Intent to deliver can be proved by circumstantial evidence. See 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); Rhodes v. State, 913 S.W.2d

242, 251 (Tex. App.—Fort Worth 1995) (explaining that such intent, for

example, may be inferred from the quantity of drugs or the manner of their

packaging), aff’d, 945 S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S.

894 (1997).     Courts consider several factors in determining such intent,

including (1) the nature of the location where the defendant was arrested; (2)

the quantity of drugs the defendant possessed; (3) the manner of packaging the

drugs; (4) the presence or absence of drug paraphernalia (for use or sale);

(5) whether the defendant possessed a large amount of cash in addition to the

drugs; and (6) the defendant’s status as a drug user. Jones, 195 S.W.3d at

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

pet.). “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,

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195 S.W.3d 321, 326 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (op.

on reh’g).

      Officers arrested Leadon in a house in which the police had previously

executed several other search warrants.3 Officer Ferguson testified that the

SWAT team had a drawing of the floor plan of the interior of the house from

these prior visits. Officer Clowers testified that the layout had been confirmed

on repeat visits.

      Leadon’s mother owned the house, but neither she nor Leadon lived in it.

Throughout trial, numerous uncontested references were made to the house’s

status as a “dope house” or a “drug house.”            The house had features

associated with other drug houses—Officers Ferguson and Hickey testified that

it had burglar bars in the windows and doors, a table facing the front door, a

loaded gun on the table next to some drugs, 4 and a piece of tape on the floor

in front of the coffee table. According to Officer Hickey, the tape indicated that

drug sales took place in the house because the tape represented a line that




      3
          … The FWPD’s visits to the house began in 2002.
      4
       … The State presented evidence that narcotics dealers typically carry
weapons. Officer Ferguson has found weapons hundreds of times while
executing search warrants on suspected drug houses. Officer Clowers stated
that the gun that the officers found in this case could fit into Leadon’s holster.

                                        8
potential drug buyers could not cross, protecting the drug sellers from violence

or theft.5 Officers found more drugs in the kitchen drainpipe.

      Leadon possessed over eleven grams of crack cocaine in the form of a

“cookie.” 6 Officer Salazar, who has executed two or three hundred search

warrants as part of the FWPD’s narcotics division, testified that a “cookie” is

made by cooking cocaine into a large, round, solid mass from which dealers can

easily break off pieces as small as .2 grams to sell. 7 He also testified that the

amount of cocaine that he found on Leadon was a “dealer amount” because

“people . . . doing personal use don’t buy large amounts like [Leadon had] and

carry it around with them.”       Several officers testified that the amount of

cocaine found on Leadon is well over what is usually found on a mere user.




      5
        … Officer Hickey has been a police officer for sixteen years, has
purchased or supervised other officers purchasing crack cocaine over one
hundred times, has been into over one hundred drug houses, and has
interviewed over one hundred drug users and approximately seventy-five drug
dealers.
      6
          … A chemist testified as to the weight and nature of the drug.
      7
      … Other cases support testimony regarding a “cookie” of cocaine as
supporting a jury’s determination of intent to deliver. See Jelks v. State, No.
14-07-00295-CR, 2008 WL 5132655, at *3 (Tex. App.—Houston [14th Dist.
Dec. 4, 2008, pet. ref’d) (mem. op. on reh’g, not designated for publication);
Hodge v. State, No. 11-05-00239-CR, 2007 WL 1849098, at *4 (Tex.
App.—Eastland June 28, 2007, pet. ref’d) (not designated for publication).

                                         9
      Leadon did not possess a large amount of cash at the time of his arrest;

however, Officer Salazar testified that it is common for drug dealers to separate

their money from their drugs to protect themselves if they are robbed or

searched by police.    Officer Hickey testified likewise.   In addition, Officer

Hickey testified that the absence of cash in Leadon’s possession could have

occurred because Leadon had just bought the eleven grams of cocaine (with the

intent to resell the cocaine) and therefore did not have any money on him.

      Finally, while Leadon did not possess any drug paraphernalia indicating

an intent to sell, he also did not possess any paraphernalia indicating an intent

to merely use. See Jordan, 139 S.W.3d at 726. There was no testimony

regarding Leadon’s status as a drug user.

      The evidence detailed above could have allowed a rational jury to

determine beyond a reasonable doubt that Leadon had an intent to deliver the

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

and deferring to the jury’s implicit resolution of the weight of the evidence, we

hold that the evidence is legally sufficient to support the jury’s verdict.

See Clayton, 235 S.W.3d at 778. We therefore overrule the legal sufficiency

portion of Leadon’s first issue.

      Leadon also contends the evidence is factually insufficient to prove his

intent to deliver. Again, we disagree.

                                       10
      Because no evidence presented at trial directly conflicted with the

evidence above, the jury’s determination about Leadon’s intent to deliver could

only be reversed for factual insufficiency if the evidence was so weak that the

determination was clearly wrong and manifestly unjust.        See Lancon, 253

S.W.3d at 705. We cannot conclude that standard has been satisfied based

on the evidence presented.

      The State presented testimony from numerous officers as to the events

related to the search warrant and the cocaine found on Leadon. The jury heard

from officers with substantial training and experience in drug-related cases, and

the jury’s determination was based on evidence that they implicitly found

credible. This testimonial evidence was not so weak that we can say the jury’s

determination was clearly wrong or manifestly unjust. Id. at 704–05; Watson,

204 S.W.3d at 414–15, 417.

      At trial, Leadon’s counsel seemed to theorize that Leadon went to the

house for his mother to investigate reports by a neighbor that something was

amiss. Although his mother’s testimony provides some evidence that supports

this alternate explanation, the jury was free to either believe or disbelieve the

conflicting theory of why Leadon was at the house. See Goodman v. State, 66

S.W.3d 283, 287 (Tex. Crim. App. 2001) (stating that it “is a jury, not a

reviewing court, that accepts or rejects reasonably equal competing theories”);

                                       11
Gregory v. State, 159 S.W.3d 254, 261 (Tex. App.—Beaumont 2005, pet.

ref’d).   Furthermore, the theory does nothing to account for the cocaine

“cookie” found on Leadon.

      Affording the jury’s decision appropriate deference under the authority

cited above, we conclude that the evidence is factually sufficient to support the

jury’s verdict. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas

2003, no pet.) (explaining that “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”).    We therefore also overrule the factual sufficiency portion of

Leadon’s only issue.

                                  Conclusion

      Having overruled Leadon’s sole issue, we affirm the trial court’s

judgment.




                                            TERRIE LIVINGSTON
                                            JUSTICE


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

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

DELIVERED: June 25, 2009



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