                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-434-CR


RUDY ABELINO BANDA                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

                                    ------------

            FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      Appellant Rudy Abelino Banda appeals his conviction for possession of a

controlled substance, cocaine (200–400 grams), with intent to deliver.2 In one




      1
          … See Tex. R. App. P. 47.4.
      2
       … Banda was also convicted of possession of marijuana (50–2,000
pounds) in a drug-free zone, but he does not appeal his conviction on this
count.
point, Banda argues that the evidence is legally and factually insufficient to

sustain his conviction. We will affirm.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Officers from the W ichita Falls Police Department executed a search

warrant to search for narcotics in Banda’s residence. Banda, his wife, and his

small child were sleeping in their bedroom when police entered the home.

Police found cocaine inside a locked safe in the bedroom. Banda informed the

officers that the key to the safe “was inside his hat,” which was located on the

nightstand by his bed.    In addition to the cocaine, the safe contained over

$10,000 in cash. Police found cocaine and marijuana in five separate locations

of Banda’s residence and ultimately seized 77.75 pounds of marijuana, 271.11

grams of cocaine, envelopes containing $10,951 in cash, including one

envelope marked with hand-written dollar amount notations, a calendar from

the kitchen marked with hand-written dollar amount notations corresponding to

the notations on the envelope, and four digital scales.

      Police arrested Banda. During questioning, Banda told the police that he

had allowed a friend, Carlos Torres, to store the marijuana and cocaine at his

house as a favor.

      A jury convicted Banda of both counts contained in the indictment,

assessed his punishment at twenty-five years’ confinement for the first count

                                       2
(possession of cocaine with intent to deliver) and ten years’ confinement for the

second count (possession of marijuana), and recommended that the trial court

suspend punishment of the sentence for the second count and place him on

community supervision. The trial court sentenced him accordingly.

                           III. S TANDARDS OF R EVIEW

                             A. 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 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

                                       3
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). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

                             B. 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

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

                                        4
under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      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.” Id. We cannot conclude 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




                                        5
weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

                       IV. S UFFICIENCY OF THE E VIDENCE

      In his sole point, Banda argues that the evidence is legally and factually

insufficient   to   convict    h im   of    p ossession    of   a    controlled

substance—cocaine—with intent to deliver. Banda challenges only the intent-

to-deliver element of the offense, contending that no credible direct evidence

exists showing that he had any intent to deliver the cocaine.

                         A. Law on Intent to Deliver

      To establish an intent to deliver, the State must prove that the accused

intended to transfer, actually or constructively, a controlled substance to

another. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2008),

§ 481.112(a) (Vernon 2003). Intent to deliver may be proved by circumstantial

evidence. Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort Worth

2004, no pet.) (citing Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort

Worth 1995), aff’d, 945 S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S.

894 (1997)). Additionally, intent to deliver may be inferred from the quantity

of drugs possessed and from the manner in which they were packaged.

Rhodes, 913 S.W.2d at 251. Expert testimony may be introduced to prove

intent to deliver. Jordan, 139 S.W.3d at 726.

                                       6
      Courts use several factors when determining intent to deliver, including

the following: (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 either use or

sale; (5) the defendant’s possession of large amounts of cash; and (6) the

defendant’s status as a drug user.          Id.; see also 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) (applying “Jordan

factors” in legal and factual sufficiency analysis).

                           B. Law on Law of Parties

      Under the law of parties, a person is criminally responsible for the

conduct of another if, acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon

2003). The evidence must show that, at the time of the offense, the parties

were acting together, each contributing some part toward the execution of their

common purpose. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App.

1994). In determining whether a defendant participated in an offense as a

party, the factfinder may examine the events occurring before, during, and after

the commission of the offense and may rely on actions of the defendant that

                                        7
show an understanding and common design to commit the offense. Id. The

accused's mere presence at a location at which narcotics are also present and

over which he does not exercise sole control does not necessarily establish

possession; rather, some evidence must also affirmatively link him to the

contraband.   McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App.

1985).

                        C. Legally Sufficient Evidence

      Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that the following evidence was introduced at trial relevant to the

issue of intent to deliver. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2793;

Clayton, 235 S.W.3d at 778.      Regarding the nature of the area where the

defendant was arrested, although no evidence exists that Banda lives in a high

crime area, Banda told police that he lives in a bad neighborhood. Concerning

the quantity of the drugs, Banda does not dispute that he had possession of

77.75 pounds of marijuana and 271.11 grams of cocaine.           Officer Folmar,

testified that the amount of cocaine found in the safe was “an extremely large

amount, much more than just the typical user’s amount of cocaine.” Officer

Folmar also stated that the cocaine marked as State’s Exhibit 4 was “in a

smaller plastic baggy, which indicated to me that it was intended for resale.”

Regarding drug paraphernalia found in the residence, police seized four digital

                                       8
scales and found hand-written notations indicating drug activity on an envelope

containing cash and on a calendar.      Officer Folmar testified that the dollar

amount notations on the envelope and calendar, which ranged from $3,000 to

$5,000, were significant because people who sell narcotics generally keep track

of how much money they are making in profit. Cash in the amount of $10,951

was located in envelopes in the same safe that contained the cocaine. Relating

to Banda’s status as a drug user, he admitted that he has been buying

marijuana from Torres for at least two years.

      Banda contends that the “only evidence” concerning the intent-to-deliver

element of the offense was Officer Folmar’s speculative testimony that the

cocaine was for sale or resale. But in addition to Officer Folmar’s testimony,

evidence was presented at trial regarding the large amount of cocaine found in

Banda’s home and the manner in which it was packaged. From this evidence

the jury could have inferred an intent to deliver the cocaine. See Jordan, 139

S.W.3d at 726; Rhodes, 913 S.W.2d at 251.

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

hold that a rational trier of fact could have found that the evidence at trial was

sufficient to establish beyond a reasonable doubt that Banda, acting as a

principal, possessed the intent to deliver. See Tex. Health & Safety Code Ann.

§§ 481.002(8), .112(a); Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

                                        9
Clayton, 235 S.W.3d at 778; see also Robinson v. State, 174 S.W.3d 320,

331 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding evidence legally

sufficient to support possession with intent to deliver as a principal actor or a

party). Accordingly, we hold that the evidence is legally sufficient to support

Banda’s conviction.

                       D. Factually Sufficient Evidence

      Banda also argues in his sole point that the evidence is factually

insufficient to support his conviction because the evidence shows that he was

holding the contraband for Torres and that he “had no knowledge” of the illicit

nature of what he was storing.       But the trial court’s charge to the jury

contained an instruction on the law of parties. Under the law of parties, the

jury was authorized to find Banda responsible for the actions of Torres if Banda,

with the intent to promote or assist the commission of the offense, solicited,

encouraged, aided, or attempted to aid Torres to commit the offense. See Tex.

Penal Code Ann. § 7.02(a)(2); see also Ortiz v. State, No. 01-05-00500-CR,

2006 WL 1549758, at *5 (Tex. App.—Houston [1st Dist.] June 8, 2006, pet.

ref’d) (discussing how appellant could have been found guilty of possession of

400 grams or more of a controlled substance with intent to deliver even if the

cocaine was solely controlled by two other people because appellant’s having

acted as the “middleman” assisted the other two people in the commission of

                                       10
the offense), cert. denied, 549 U.S. 1285 (2007). Banda told police that he

had been storing the cocaine and marijuana for Torres for three to four months

and that Torres would stop by and pick up whatever he needed.               Thus,

although Banda testified at trial he did not know that Torres was storing

cocaine at his house, the evidence is factually sufficient to support Banda’s

conviction simply under the law of parties.      See Tex. Penal Code Ann. §

7.02(a)(2).

      Banda possessed 271.11 grams of cocaine, $10,951 in cash, and four

digital weight scales, and he admitted buying marijuana. Applying the Jordan

intent-to-deliver factors to the present case, the evidence supports the jury’s

determination that Banda intended to deliver the cocaine or acted with intent

to promote or assist in the delivery of the cocaine. See Jordan, 139 S.W.3d

at 726; see also Salazar v. State, 95 S.W.3d 501, 504–05 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (holding evidence legally sufficient

to support conviction for possession with intent to deliver under law of parties);

Brown, 2006 WL 412466, at *3 (holding that factually sufficient evidence of

intent to deliver existed when defendant possessed 6.9 grams of cocaine and

$399 in cash despite absence of evidence of drug paraphernalia, weight scales,

or defendant’s drug usage).




                                       11
      We have thoroughly reviewed the evidence in a neutral light, and we find

no objective basis in the record for holding that the jury’s verdict was clearly

wrong or manifestly unjust or that it is contradicted by the great weight and

preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the jury’s verdict, and no contrary evidence exists that would render

the evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.

Accordingly, having held that the evidence is legally and factually sufficient to

support Banda’s conviction, we overrule his sole point.

                                V. C ONCLUSION

      Having overruled Banda’s sole point, we affirm the trial court’s judgment.




                                                 PER CURIAM

PANEL: WALKER, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: July 23, 2009




                                       12
