Opinion issued April 30, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00288-CR
                             NO. 01-11-00289-CR
                           ———————————
                MARCUS DESHUNN FREEMAN, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                 On Appeal from the 183rd District Court
                           Harris County, Texas
                Trial Court Case Nos. 1238767 and 12387681




1
     Appellate case number 01-11-00288-CR pertains to trial court case number
     1238767 (possession with intent to deliver cocaine) and 01-11-00289-CR pertains
     to trial court case number 1238768 (possession with intent to deliver “cough
     syrup” codeine).
                        MEMORANDUM OPINION

      A jury convicted Marcus Deshunn Freeman of possession with intent to

deliver more than 4, but less than 200 grams of cocaine,2 and possession with

intent to deliver more than 400 grams of codeine cough syrup.3 The jury also

found that Freeman had used or exhibited a deadly weapon during the commission

of both offenses. Freeman was sentenced to a concurrent term of twenty-five

years’ imprisonment for each offense. In four issues, Freeman contends that (1)

the evidence supporting his convictions is legally insufficient, (2) the evidence

supporting the deadly weapon findings is legally insufficient, (3) he was

egregiously harmed by the State’s improper jury argument, and (4) the trial court

erred in refusing his request for an instruction to disregard another of the State’s

improper jury arguments. We affirm the judgment of the trial court.

                                   Background

      The Houston Police Department received information that narcotics were

being trafficked from a single-family residence located at 5315 Keystone Street.

After conducting some surveillance of the property, Officer S. Bryant, the lead

investigator, sent a confidential informant and another officer, K. Jacobs, to the

home to execute a controlled buy.       Officer Jacobs, who was posing as the

2
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .112(a), (d) (West
      2010).
3
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.105(1), .114(a), (e) (West 2010).

                                         2
informant’s girlfriend, witnessed Freeman sell crack cocaine to the informant from

the front doorway of the home. Based on information obtained as a result of the

controlled buy, Officer Bryant obtained a “no knock” search and arrest warrant for

5315 Keystone Street.

        Officer Bryant and the other members of his team executed the warrant five

days after the controlled buy took place. When they arrived at the property, the

officers found two men standing in front of the main house and another man inside

the main house. During the search, a marked patrol unit that was watching the

perimeter of the property alerted them that two more men—one of whom was later

identified as Freeman—were exiting a second, smaller, unattached building located

at the rear of the property.     The officers went to the backyard where they

encountered two pit bulls. One of the officers discharged his weapon to protect the

officers from the aggressive animals.        They then detained Freeman and his

companion. Freeman was later arrested and found to be carrying over $800 in

cash.

        After Freeman was detained, officers conducted a thorough search of both

the main house and the small, unattached building. The small, unattached building

was a ten-foot-by-ten-foot recording studio, with a seating area and a singing

booth. When the officers entered the studio they found two more men inside.




                                         3
They also recovered a loaded .38 caliber Smith & Wesson revolver and a rifle from

the recording studio’s attic.

      When they searched the main house, officers discovered a loaded,

chambered semi-automatic Glock pistol with hollow-point bullets on the

nightstand in the home’s only usable bedroom.4 Two baggies of marijuana were

lying next to the pistol, in plain view. Officer Bryant testified that all three of the

weapons recovered from the property—the revolver, the pistol, and the rifle—were

deadly weapons that were capable of causing death or serious bodily injury.

      Officers also found an opened bottle labeled as promethazine and codeine

phosphate syrup in a shoe box on a chair next to the nightstand. A second shoe

box that contained eight additional, unopened bottles of what appeared to be the

same codeine cough syrup was found in the bedroom closet. The officers also

found men’s clothes fitting someone Freeman’s size in the bedroom, as well as

mail addressed to Freeman at that address. In particular, officers found a cable

work order for that address that was dated earlier that week and listed Freeman as

the customer. Officer Bryant concluded, based upon the clothes and mail, that the

bedroom where the codeine and loaded Glock were found belonged to Freeman.

      In the kitchen of the main house, officers found a beaker lying on the

counter, a scale, and a knife that could be used to manufacture crack cocaine.


4
      The second bedroom in the main house was being used for storage.
                                          4
They also found several baggies in one of the kitchen drawers, each containing

what appeared to be a “cookie” of crack cocaine. The crime lab later determined

that one of those baggies contained 32.1 grams of crack cocaine.5 Officers also

found a recent electric bill for the property in the kitchen area that was addressed to

Freeman. Inside the black Chevy Impala parked in the driveway, officers also

found paperwork indicating that Freeman was doing business as “Full Metal Jacket

Records,” and bank records for Full Metal Jacket Records listing 5315 Keystone

Street as the business’s address.

      Freeman’s mother testified that she owned the home at 5315 Keystone, but

had moved out three years before officers searched the property. She testified that

another one of her sons lived in the house with his son and another man. She also

testified that Freeman did not live in the house, but he did spend a lot of time in the

recording studio he built in the back of the property. According to Freeman’s

mother, ten people, including herself and Freeman, received mail at the house.

                         Legal Sufficiency of the Evidence

      In his first and second issues, Freeman challenges the sufficiency of the

evidence supporting his convictions and the deadly weapon finding.



5
      The criminalist who tested the contents of the baggie testified that she weighed all
      of the baggies, but only tested the contents of one because even if all of the other
      baggies contained crack cocaine, the total amount would not exceed 200 grams,
      and therefore would not move the offense into the next penalty group.
                                           5
      A.     Standard of Review

      We review challenges to the sufficiency of the evidence under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim.

App. 2010)). Under the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact-finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

317–19, 99 S. Ct. at 2788–89; Brooks, 323 S.W.3d at 899 (“Considering all of the

evidence in the light most favorable to the verdict, was a jury rationally justified in

finding guilt beyond a reasonable doubt”). In viewing the record, direct and

circumstantial evidence are treated equally. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

      The Jackson standard gives full play to the responsibility of the fact-finder

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 318–19, 99

S. Ct. at 2788–89; Clayton, 235 S.W.3d at 778; see also Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder, the jury is entitled to

judge the credibility of witnesses, and can choose to believe all, some, or none of

                                          6
the testimony presented by the parties.”) We presume that the fact-finder resolved

any conflicting inferences in favor of the verdict and defer to that resolution. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We also

defer to the fact-finder’s evaluation of the credibility and weight of the evidence.

See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      B.     Possession with Intent to Deliver

      To demonstrate possession of cocaine with intent to deliver, the State is

required to show that (1) Freeman knowingly or intentionally; (2) possessed; (3)

cocaine; (4) in an amount greater than two but less than four hundred grams; (5)

with the intent to deliver the cocaine. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(3)(D), .112(a), (d) (West 2010). Likewise, in order to demonstrate

possession of codeine syrup with intent to deliver, the State is required to show that

(1) Freeman knowingly or intentionally; (2) possessed; (3) codeine cough syrup;6

(4) in an amount greater than 400 grams by aggregate weight; (5) with the intent to

deliver the codeine cough syrup.            See TEX. HEALTH & SAFETY CODE



6
      TEX. HEALTH & SAFETY CODE ANN. § 481.105(1) (West 2010) (defining Penalty
      Group 4 codeine as “a compound, mixture, or preparation containing limited
      quantities of any of the following narcotic drugs that includes one or more
      nonnarcotic active medicinal ingredients in sufficient proportion to confer on the
      compound, mixture, or preparation valuable medicinal qualities other than those
      possessed by the narcotic alone: not more than 200 milligrams of codeine per 100
      milliliters or per 100 grams”); see also Miles v. State, 357 S.W.3d 629, 636 (Tex.
      Crim. App. 2011) (describing Penalty Group 4 codeine as “codeine cough syrup”).

                                          7
ANN. §§ 481.105(1), .114(a), (e) (West 2010). Freeman is only challenging the

“possession” element of each offense.7

      The State need not show that a defendant exercised exclusive control over

the controlled substance, but, when a defendant does not have exclusive control,

the State must show additional affirmative links between the defendant and the

contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex. App.—Houston [1st Dist.]

2000, no pet.). The affirmative links rule, which protects innocent bystanders from

conviction based solely upon their fortuitous proximity to someone else’s

narcotics, simply restates the common-sense notion that a person—such as a father,

son, spouse, roommate, or friend—may jointly possess property like a house but

not necessarily jointly possess the contraband found in that house. Satchell v.

State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)

(citing Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005)). The

affirmative links must raise a reasonable inference that the accused knew of and

controlled the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex. App.—

Houston [1st Dist.] 1993, pet. ref’d).

      Texas courts have identified “many non-exhaustive factors” that may

demonstrate a link to contraband. Roberson v. State, 80 S.W.3d 730, 735 (Tex.
7
      Although Freeman cites the applicable law regarding the element of intent to
      deliver, he does not apply the law to the facts of this case or provide any relevant
      analysis. Accordingly, we will limit our discussion to the only element Freeman
      adequately challenges—possession.

                                           8
App.—Houston [1st Dist.] 2002, pet. ref’d).          These factors include (1) the

accused’s presence when a search is conducted, (2) whether the narcotics were in

plain view, (3) the accused’s proximity to and the accessibility of the narcotics, (4)

whether the accused was under the influence of narcotics when arrested, (5)

whether the accused possessed other contraband or narcotics when arrested, (6)

whether the accused made incriminating statements when arrested, (7) whether the

accused attempted to flee, (8) whether the accused made furtive gestures, (9)

whether there was an odor of contraband or narcotics, (10) whether other

contraband or narcotic paraphernalia was present, (11) whether the accused owned

or had the right to possess the place where the narcotics were found, (12) whether

the place in which the narcotics were found was enclosed, (13) whether the

accused was found with a large amount of cash, and (14) whether the conduct of

the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158,

162 n.12 (Tex. Crim. App. 2006). These factors constitute “a shorthand way of

expressing what must be proven to establish that [narcotics] were possessed

knowingly.” Roberson, 80 S.W.3d at 735. The number of linking factors present

is not as important as the “logical force they create to prove” that an offense was

committed. Id. There is no set formula necessitating a finding of an affirmative

link, but rather, affirmative links are established by the totality of the




                                          9
circumstances. Sosa v. State, 845 S.W.2d 479, 483 (Tex. App.—Houston [1st

Dist.] 1993, pet. ref’d).

      In support of his insufficiency challenge, Freeman argues that there were no

affirmative links connecting him to either the cocaine or the codeine cough syrup

found in the main house. To the contrary, Officer Bryant testified that the codeine

syrup was found in Freeman’s bedroom, along with recent mail addressed to

Freeman at that address, and clothes that Officer Bryant opined belonged to

Freeman.     The crack cocaine was discovered in the kitchen, along with

drug-manufacturing paraphernalia, and more mail addressed to Freeman at that

address. Furthermore, Officer Jacobs testified that she witnessed Freeman selling a

small amount of crack cocaine to a confidential informant from the front doorway

of the main house only days before. Freeman, who operated his music business

out of the studio behind the main house, spent a considerable amount of time at the

property. Both the codeine syrup and the crack cocaine were easily accessible to

Freeman, who had access to both buildings. Freeman also had over $800 in cash

on him when he was arrested.

      Freeman acknowledges this evidence but argues that the mail and clothes

found in the home are insufficient to link him to the narcotics, because several

other people also received mail at that address, and the clothes found in the

bedroom could have belonged to any of the other seven male suspects identified in

                                        10
the offense report. Freeman further argues that he was in the studio when the

warrant was executed and that, at most, the evidence (i.e., the mail, the bank

records) merely links him to the studio which shares a mailing address with the

main house. Freeman also argues that Officer Jacobs’s testimony that she saw him

sell crack cocaine to an informant from the front door of the main house five days

prior to the execution of the search warrant is too remote in time to affirmatively

link him to the narcotics.

      We recognize that there was evidence of the presence of other men in both

the main house and the studio at the time of the search, and testimony that other

men lived in the main house and that several people received their mail at that

address. We also acknowledge that the sale to the informant occurred several days

before the search. However, in a legal-sufficiency review we are required to defer

to the jury’s weight determinations and resolve inconsistencies in the evidence in

favor of the verdict. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Williams, 235

S.W.3d at 750.

      Viewing the evidence in the light most favorable to the verdict, we conclude

that the logical force from these links is sufficient for the jury to have concluded

beyond a reasonable doubt that Freeman exercised care, custody, control, or

management over both the cocaine and the codeine cough syrup recovered at the

property. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

                                        11
      C.     Deadly Weapon Findings

      A deadly weapon finding can be made if a deadly weapon “was used or

exhibited during the commission of a felony offense.” TEX. CODE CRIM. PROC.

ANN. art. 42.12 § 3g(a)(2) (West Supp. 2012). Thus, “we must determine whether

a rational trier of fact could have found beyond a reasonable doubt that [Freeman]

used the [revolver, the pistol, or the rifle] to facilitate possession and delivery of

the narcotics.” Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004).

      In the context of a deadly weapon finding, the term “use” means any

employment of a deadly weapon, even simple possession, if that possession

facilitates the associated felony. Id.; see Patterson v. State, 769 S.W.2d 938, 941

(Tex. Crim. App. 1989) (holding that “use” of deadly weapon “extends as well to

any employment of a deadly weapon, even its simple possession, if such

possession facilitates the associated felony”).     The term “exhibit” requires a

weapon to be consciously shown, displayed, or presented to be viewed. Coleman,

145 S.W.3d at 652; Patterson, 769 S.W.2d at 941. Thus, the real question is

whether the weapons that were recovered were found to have facilitated Freeman’s

possession and distribution of the narcotics also found at the residence.         See

Coleman, 145 S.W.3d at 655.

      Here, officers executing the search warrant found a Glock pistol loaded with

hollow-point bullets in Freeman’s bedroom. The Glock, which was in plain view

                                         12
on a nightstand, was easily accessible to Freeman, who was carrying over $800 in

cash.    Officers also found a large amount of codeine cough syrup in close

proximity to the loaded pistol and cocaine in the kitchen. See Coleman, 145

S.W.3d at 654 (upholding deadly weapon finding when guns and safe containing

drugs were found in separate rooms of defendant’s house, in spite of fact that

defendant was handcuffed in police car when weapons were discovered).

        Viewing the evidence in the light most favorable to the jury’s finding, we

conclude that a rational trier of fact could have found beyond a reasonable doubt

that Freeman used the guns to facilitate possession and delivery of the narcotics.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Coleman, 145 S.W.3d at 655.

        We overrule Freeman’s first and second issues.

                             Improper Jury Arguments

        In his third and fourth issues, Freeman contends that the State made two

improper jury arguments that deprived him of a fair trial.

        A.    Standard of Review

        Permissible jury argument by the State generally falls into four categories:

(1) summation of the evidence; (2) reasonable deductions from the evidence; (3)

pleas for law enforcement; and (4) response to opposing counsel. Jackson v. State,

17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Dominguez v. State, 125 S.W.3d 755,

763 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Even when an argument

                                         13
exceeds the permissible bounds of these approved areas, it will not constitute

reversible error unless, in light of the record as a whole, the argument is manifestly

improper or injects new, harmful facts into the case, see Jackson, 17 S.W.3d at

673–74, and affects the defendant’s substantial rights. See Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (improper jury arguments are generally

considered non-constitutional error); see also TEX. R. APP. P. 44.2(b) (non-

constitutional errors not affecting substantial rights are disregarded.).          In

determining whether a defendant’s substantial rights are affected, we balance three

factors: 1) the misconduct’s severity, 2) the measures adopted to cure the

misconduct, and 3) the certainty of punishment without the misconduct.            See

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

       To preserve jury argument error, a defendant must contemporaneously

object and obtain an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.

Crim. App. 1996); Dominguez, 125 S.W.3d at 763. If the objection is sustained,

the defendant must request an instruction to disregard the argument and, if granted,

must move for mistrial. Cockrell, 933 S.W.2d at 89; Dominguez, 125 S.W.3d at

763.

       B.    “All cops are liars”

       In his third issue, Freeman argues that the State impermissibly argued that

the only way the jury could reach a verdict of “not guilty” was if the jurors

                                         14
concluded that all of the police were “lying” under oath.                  Although he

acknowledges that he never objected to the State’s comments at trial, he argues

that we should nevertheless reach this argument based upon the Supreme Court’s

opinion in Living Centers of Texas Inc. v. Penalver, 256 S.W.3d 678, 680–81 (Tex.

2008). However, the Court of Criminal Appeals has held that a defendant’s failure

to object to an improper jury argument in a criminal case forfeits his right to

complain about the jury argument on appeal. See Cockrell, 933 S.W.2d at 89

(holding defendant’s failure to object to jury argument, or failure to pursue adverse

ruling on his objection to jury argument, forfeits his right to complain about jury

argument on appeal); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)

(holding defendant’s “right” not to be subjected to incurable erroneous jury

arguments is one of those rights that is forfeited by failure to insist upon it).

      We overrule Freeman’s third issue.

      C.     “Pit bull dog owners are drug dealers”

      In his fourth issue, Freeman complains that the trial court erred in denying

his request for an instruction to disregard the State’s argument regarding a

connection between drug dealers and pit bull dogs. During its closing argument,

the State argued: “This is [Freeman’s] cash. It’s right here. You can read the

inventory on the front of it. Drugs, cash. Oh, let’s not forget all the guns. But

we’ll get back to that because what do drug dealers use to protect their products?

                                           15
They use guns. They use pit bulls. That happened to be there, too.” The defense

objected on the ground that the State was arguing facts outside the scope of the

record (i.e., that Freeman owned the pit bull dogs found at the residence). The

court sustained the objection.      The defense then moved for an “instruction

regarding the pit bulls.” The court denied that motion, but instructed the State to

“stay in the record, please.” Freeman argues that he was harmed by the State’s

argument, which was intended to arouse the passions and prejudices of the jury.

      In this case, the evidence demonstrated that two pit bull dogs were in the

backyard, between the main residence and the recording studio, when the warrant

was executed, and that the dogs were so aggressive that one of the officers

discharged his weapon to protect himself and the other officers from the animals.

The evidence also linked Freeman to both buildings, as well as the narcotics and

weapons the officers found inside them. Officer Bryant also testified that firearms

are normally involved to protect the narcotics. The State’s comment that the

aggressive, pit bull dogs on the property were also there to protect the narcotics is a

reasonable, logical deduction, and as such, was not improper. See Jackson, 17

S.W.3d at 673 (permissible jury argument by State includes reasonable deductions

from evidence).

      We overrule Freeman’s fourth issue.




                                          16
                                    Conclusion

      We affirm the judgment of the trial court.

                                 PER CURIAM

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




                                        17
