                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-07-00309-CR

KELVIN KIANTA BROOKS,
                                                                   Appellant
    v.

THE STATE OF TEXAS,
                                                                   Appellee


                               From the 19th District Court
                                McLennan County, Texas
                               Trial Court No. 2007-844-C1


                             MEMORANDUM OPINION


         Kelvin Kianta Brooks was charged with the offenses of possessing with intent to

deliver more than four but less than 200 grams of crack cocaine and possession of a

controlled substance (ecstasy). TEX. HEALTH & SAFETY CODE ANN. §§ 481.112, 481.116

(Vernon Supp. 2009).         A jury convicted Brooks of both offenses and assessed

punishment at twenty-five years and ten years in prison, respectively.1



1 The memorandum opinion issued by this Court involved both convictions in Cause Numbers 10-07-
00309-CR and 10-07-00310-CR. However, only the conviction in No. 10-07-00309-CR (possession with
intent to deliver crack cocaine) was included in the opinion on the petition for discretionary review
issued by the Court of Criminal Appeals. Therefore, this opinion relates only to No. 10-07-00309-CR.
        On direct appeal, this Court found that the evidence was legally sufficient to

sustain Brooks’ convictions, but reversed the judgment on the possession with intent to

deliver crack cocaine on the ground that the evidence was factually insufficient for the

jury to have determined that Brooks possessed the crack cocaine with the intent to

deliver. See Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. LEXIS 7364 at *11 (Tex.

App.—Waco Oct. 1, 2008) (mem. op., not designated for publication). However, the

Court of Criminal Appeals determined that the only standard for determining the

sufficiency of evidence is the standard set forth in Jackson v. Virginia and a complaint

alleging factual insufficiency is no longer valid. See Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (plurality op.) Accordingly, the Court of Criminal Appeals

reversed this Court’s judgment and remanded the case to this Court for a

reconsideration of the sufficiency of the evidence using the Jackson v. Virginia standard.

On remand, we affirm.

        We directed the parties to supplement their briefing and now again address

Brooks’s contentions and the record under the standard outlined in Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

        In the Texas Court of Criminal Appeals's disposition of Brooks, the Court stated

its reasoning for the necessity of a remand:

        [W]e could decide that the court of appeals necessarily found that the
        evidence is legally insufficient to support appellant's conviction when it
        decided that the evidence is factually insufficient to support appellant's
        conviction. However, primarily because the 'confusing' factual-sufficiency
        standard may have skewed a rigorous application of the Jackson v. Virginia
        standard by the court of appeals, we believe that it is appropriate to
        dispose of this case by sending it back to the court of appeals to reconsider

Brooks v. State                                                                         Page 2
        the sufficiency of the evidence to support appellant's conviction under a
        proper application of the Jackson v. Virginia standard.

Brooks, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240, at *58.

Standard of Review for Sufficiency

        In reviewing the 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, 61

L. Ed. 2d 560 (1979); Brooks, 323 S.W.3d at 899. We consider all of the evidence admitted

at trial, even improperly admitted evidence, when performing this sufficiency review.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury’s

determinations of the witnesses’s credibility and the weight to be given their testimony

because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899.

The Facts

        The evidence showed that two police officers went into a bar to investigate a

report that someone matching Brooks’s description was there with a gun. The officers

asked Brooks to step outside, but Brooks ran from the officers. He was seen throwing

two baggies toward a pool table just before he was tased by one of the officers. One

baggie was located under the pool table. A second baggie was found in the ball return

of the pool table. The first baggie contained a small amount of marijuana (about 3

grams). The other baggie contained two other baggies—one held 4.72 grams of crack

cocaine and the other held six ecstasy tablets that weighed 1.29 grams. Brooks also had


Brooks v. State                                                                      Page 3
a cell phone and, according to one of the officers, “a couple of dollars.” Brooks testified

at trial that he had "like $30 or $40" on him. At that time, Brooks did not appear to be

under the influence of narcotics, and he was not in possession of any drug

paraphernalia that could have been used for smoking crack cocaine. No gun was

located. The police gave Brooks’s cell phone and money to an acquaintance of Brooks

before they took him to jail.

        An experienced Waco Police Department drug-enforcement investigator

(Thompson) testified that the bag containing the 4.72 grams of crack cocaine contained

“two larger size rocks and then maybe a smaller one” and a useable amount of

“crumbs.” He testified that each of the two large rocks weighed at least two grams and

the other one weighed “a gram and a half or something like that.” Thompson testified

that “he would say” that 4.72 grams was a “dealer amount,” which could have been cut

up into 23 or 24 rocks using a thumbnail or sharp object. He testified that 4.72 grams of

crack cocaine is worth about $470.

        Thompson stated that a “typical quantity” that a dealer would have would be

more than two rocks and that he “would think” that someone with more than a gram

would be a dealer. Thompson testified that it is not “typical” for drug users to be in

possession of a large amount of drugs. He rarely had encountered many people that

are users that have more than one or two small rocks in their possession because they

generally use it as soon as they get it. Thompson also testified that typically, most crack

cocaine users would have some type of paraphernalia in their possession with which to




Brooks v. State                                                                      Page 4
smoke the crack cocaine.       He further stated that typically dealers do not carry

paraphernalia because they do not generally use their product.

        Thompson described other factors which could indicate that a person is a dealer:

(1) possession of five, ten, or twenty dollar bills; (2) names in the person's cell phone; (3)

possession of some document identifying who owes what; (4) possession of a weapon;

or (5) others observed the person trying to sell drugs. Because the money and the cell

phone were not retained by the arresting officers, and therefore could not be searched

or introduced as evidence, none of these types of evidence were introduced in Brooks’s

case. Thompson also acknowledged that a person could possess 4.72 grams of crack

cocaine for friends or for personal use over the course of several days.

        Brooks testified that he possessed only the baggie containing the marijuana, and

denied possessing the baggies containing the crack cocaine and the ecstasy pills.

However, he admitted that the baggie containing the crack cocaine and ecstasy was

packaged the same as the baggie containing the marijuana. Brooks admitted that he has

two prior convictions for possession of cocaine and another prior conviction for

possession with intent to deliver cocaine. As to these prior convictions, no limiting

instruction was requested at the time the evidence was admitted, however, the jury was

instructed in the charge that it could have considered these extraneous offenses “in

determining the intent, motive, opportunity, preparation, plan, knowledge, identity, or

absence of mistake or accident by the Defendant, if any, in connection with the offenses,

if any, alleged against him in the indictment in this case, and for no other purpose.”




Brooks v. State                                                                         Page 5
Possession with Intent to Deliver

        A person commits the offense of possession with intent to deliver a controlled

substance if he knowingly or intentionally possessed a quantity of the controlled

substance with the intent to deliver it.     See TEX. HEALTH & SAFETY CODE ANN. §

481.112(a) (Vernon Supp. 2009); Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—

Houston [1st Dist.] 2004, no pet.). “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 another;

and (3) knew that the substance in his possession was a controlled substance.” Nhem,

129 S.W.3d at 699. Intent to deliver may be established by expert testimony, such as

testimony from experienced law enforcement, and circumstantial evidence, such as

evidence of an accused’s possession of the contraband. Moreno, 195 S.W.3d at 325;

Ingram v. State, 124 S.W.3d 672, 675-76 (Tex. App.—Eastland 2003, no pet.). “Inferences

can be made from the conduct of the defendant as well as the amount of the controlled

substance possessed and the manner in which it was possessed.” Ingram, 124 S.W.3d at

675-76. Other circumstantial factors which may establish intent include: “(1) the nature

of the location at which the accused was arrested; (2) the quantity of contraband in the

accused’s possession; (3) the manner of packaging; (4) the presence or lack thereof 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 325-26;

Erskine v. State, 191 S.W.3d 374, 380 (Tex. App.—Waco 2006, no pet.). The logical force

Brooks v. State                                                                      Page 6
the factors have in proving the elements of the offense is more important than the

number of factors present. Moreno, 195 S.W.3d at 326. Further, intent is a question of

fact that is determined by the trier of fact. Ingram, 124 S.W.3d at 676.

        The State argues that the following evidence constitutes evidence of intent to

deliver: (1) both the bag of marijuana and the bag of cocaine were packaged in the same

manner; (2) Brooks was not in possession of any drug paraphernalia for either use or

sale; (3) Thompson testified that users typically carry some type of heating element,

such as a crack pipe, but dealers do not; (4) at the time of his arrest, Brooks was not

under the influence of a narcotic; (5) Brooks has a previous conviction for possession

with intent to deliver; (6) Brooks attempted to evade capture and discarded contraband

in the process; and (7) Brooks was found in possession of three different types of drugs.

Analysis

        There were more drugs found than a user would normally take at one time

(more than 20 “servings”), there were three separate types of drugs being held by

Brooks, there was evidence that Brooks was not using or did not appear to be under the

influence of any of the drugs that were found when he was arrested, there was evidence

that Brooks did not have in his possession the tools necessary to ingest the crack cocaine

himself, and an expert opined that this evidence was, in his opinion, consistent with

what a dealer would have in his possession. The logical inference to be drawn from this

set of facts is that the drugs were possessed with the requisite intent to deliver.

        The jury observed the witnesses and made its credibility determinations. We are

required to give deference to the trier of fact to “fairly resolve conflicts in the testimony,

Brooks v. State                                                                         Page 7
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson v. Virginia, 443 U.S. at 319. The jury could have believed the opinion of

Thompson, an experienced law enforcement officer, that Brooks possessed the crack

cocaine with the intent to deliver it, taken with the other circumstances present, and

could have determined that Brooks was not a credible witness.

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

the evidence was sufficient for the jury to have determined that Brooks possessed the

crack cocaine with the intent to deliver. We overrule issue one.

Conclusion

        We find that the evidence was sufficient under the Jackson v. Virginia standard to

sustain the conviction. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 16, 2011
Do not publish
[CRPM]




Brooks v. State                                                                     Page 8
