Lamont Renard Stewart v. State

IN THE TENTH COURT OF APPEALS

No. 10-14-00183-CR

LAMONT RENARD STEWART, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2013-179-C2

MEMORANDUM OPINION

In four issues, appellant, Lamont Renard Stewart, challenges his conviction for unlawful possession of a controlled substance with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). Specifically, appellant argues that: (1) the trial court erred in admitting evidence of extraneous offenses involving him selling controlled substances to confidential informants; (2) the prejudicial effect of the extraneous drug-offense evidence outweighed its probative value; (3) the disclosure of the identities of the confidential informants was required; and (4) the evidence supporting his conviction is insufficient. We affirm.

I. BACKGROUND

After receiving information that appellant was selling ecstasy, Detective David Starr of the Waco Police Department’s narcotics unit began a five-month investigation into appellant’s actions. During this investigation, Detective Starr conducted twelve “controlled buys,” which involved appellant selling ecstasy pills to confidential informants. The “controlled buys” occurred at several locations, including the apartment of appellant’s girlfriend, Jeanetta Mozee. And on at least four of the “controlled buys,” Mozee accompanied appellant to the location of the drug deal.

Armed with the information obtained from the “controlled buys,” Detective Starr was able to obtain a warrant to search appellant’s house and Mozee’s apartment. On the day of the search, investigators observed appellant leave his house in a Suburban to drive to Mozee’s apartment. Once appellant had entered Mozee’s apartment and shut the door, a SWAT team entered Mozee’s apartment.

After the SWAT team secured the premises, Detective Starr entered the apartment, and on the kitchen counter, he observed appellant’s keys and a plastic bag that appellant had carried into the apartment. These items were next to a baggie of twenty-one pills that were in plain view on the kitchen counter. Witnesses testified that appellant was in close proximity to the baggie of pills and that appellant had stated the following when he was detained by the SWAT team: “I don’t know what the big deal is, it’s just 10 to 15 Ecstasy pills that I sell for, like, $3.00.” The SWAT team also found $¹,211 in cash on Stewart v. State Page 2 appellant’s person and a key to Mozee’s apartment on a keychain in appellant’s pocket. A subsequent test of the pills contained in the baggie revealed that the baggie contained 4.67 grams of 1-(3-trifluoromethylphenyl piperazine) or TFMPP, which, as Detective Starr testified, is similar to ecstasy.1 Later, investigators searched the center console armrest of one of appellant’s vehicles and found digital scales that are commonly used in the drug trade. Thereafter, appellant was charged with unlawful possession of a controlled substance with intent to deliver. See id.

This case proceeded to trial, and at the conclusion of the evidence, the jury found appellant guilty of the charged offense. Appellant pleaded “true” to two enhancement paragraphs contained in the indictment referencing appellant’s prior felony convictions for possession of a controlled substance with intent to deliver and aggravated assault. At the conclusion of the punishment phase, the jury sentenced appellant to sixty years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice with no fine. The trial court certified appellant’s right of appeal, and this appeal followed.

II. EXTRANEOUS DRUG-OFFENSE EVIDENCE

In his first two issues on appeal, appellant complains about the admission of extraneous drug-offense evidence pertaining to the “controlled buys.” More specifically, appellant asserts that the trial court erred in admitting evidence of the “controlled buys” because the evidence portrayed him as a drug dealer, and because neither intent nor knowledge were contested issues. Additionally, appellant contends that the probative value of admitting evidence of the “controlled buys” was outweighed by its prejudicial effect and allowed the jury to convict appellant for being a drug dealer in general, rather than for the charged offense. A. Standard of Review

We review the trial court’s admission of extraneous-offense evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial court’s ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s ruling on the admissibility of an extraneous offense is generally within this zone if the evidence shows that: (1) an extraneous transaction is relevant to a material, nonpropensity issue; and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. De La Paz, 279 S.W.3d at 344. “Furthermore, if the trial court’s evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling.” Id. B. Texas Rule of Evidence 404(b)

Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of the defendant in order to show he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the commonlaw principle that a defendant should be tried only for the offense for which he is charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that a defendant is generally to be tried only for the offense charged, not for any other crimes).

Extraneous-offense evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b) is not exhaustive. See Prible, 175 S.W.3d at 731. For example, extraneous-offense evidence may be admissible to demonstrate conduct by a defendant that indicates a consciousness of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980). An extraneous offense may also be admissible to show identity when identity is at issue in the case, or when the defense cross examines witnesses or alleges that someone else committed the crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). “Whether extraneous[-]offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court.” Stewart v. State Page 5 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b) ruling admitting evidence is generally within the zone of reasonable disagreement “if there is evidence supporting that an extraneous transaction is relevant to a material, nonpropensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

Here, the State introduced evidence of appellant’s prior sales of ecstasy to show his intent, knowledge, and possession in this case. Appellant contends that the evidence should have been excluded because neither intent nor knowledge were contested, and because the evidence portrayed appellant as a drug dealer. Appellant’s appellate arguments are belied by the testimony adduced at trial.

Specifically, as acknowledged in his brief, appellant’s defense at trial was that the pills found on Mozee’s kitchen counter were not his and instead belonged to Mozee. Furthermore, through questioning of witnesses, appellant attempted to demonstrate that the pills were for personal use and were not intended to be distributed. This shows that appellant’s intent, knowledge, and possession were indeed at issue in this case. And in any event, such a contention is without merit because the “State has the burden of proving the essential elements of the offense beyond a reasonable doubt regardless of whether the defendant chooses to contest any of those elements.” Payton v. State, 830 S.W.2d 722, 730 (Tex. App.—Houston [14th Dist.] 1992, no pet.).

“Knowledge (or criminal intent) is an essential element of the crime of possession of a narcotic drug. Evidence that the accused has, in the past, sold the narcotic of which he is now alleged to have possession is of probative value in establishing knowledge.” Arnott v. State, 498 S.W.2d 166, 176 (Tex. Crim. App. 1973) (internal citations omitted); see Stewart v. State Page 6 Mason v. State, 99 S.W.3d 652, 656 (Tex. App.—Eastland 2003, pet. ref’d) (finding no abuse of discretion in admitting extraneous drug-offense evidence to show that the defendant knowingly possessed cocaine); Payton, 830 S.W.2d at 730 (“Clearly, evidence that appellant sold cocaine approximately two days before his arrest is relevant to whether he possessed cocaine with intent to deliver.”); see also Banal v. State, No. 08-11-00032-CR, 2012 Tex. App. LEXIS 10661, at **10-12 (Tex. App.—El Paso Dec. 21, 2012, no pet.) (mem. op., not designated for publication) (concluding that the trial court did not abuse its discretion in admitting extraneous drug-offense evidence of an undercover buy made by the defendant the day before a search warrant was executed).

Detective Starr testified that he observed twelve “controlled buys” between appellant and confidential informants and that the pills found on the kitchen counter in Mozee’s apartment are similar to and are often confused with appellant’s drug of choice—ecstasy. We conclude that this extraneous drug-offense evidence was relevant to show that appellant had knowledge of the pills found on the kitchen counter of Mozee’s apartment and that he possessed them with intent to deliver.² See TEX. R. EVID. 404(b); Arnott, 498 S.W.2d at 176-77; Mason, 99 S.W.3d at 656; Payton, 830 S.W.2d at 730; see also Banal, 2012 Tex. App. LEXIS 10661, at **11-12. C. Texas Rule of Evidence 403

Evidence, though relevant, can nonetheless be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Once a trial court determines that extraneous-offense evidence is admissible under Rule 404(b), the trial court must, on proper objection by the opponent of the evidence, weigh the probative value of the evidence against its potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 377, 389 (Tex. Crim. App. 1990); see TEX. R. EVID. 403. Rule 403 favors admissibility of relevant evidence, and the presumption is that generally, relevant evidence will be more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’” Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).

Although not limited to the following enumerated factors, courts should balance the following factors under a Rule 403 analysis: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted the proper balancing test if it overrules a 403 objection, regardless of whether it conducted the test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).

As stated earlier, appellant’s defense was that the pills were Mozee’s and that, based on the quantity, the pills were for personal use, not for distribution. As such, appellant’s intent, knowledge, and possession were clearly at issue in this case. The State had a need for the complained-of extraneous drug-offense evidence because it was probative on the issue of appellant’s intent, knowledge, and possession of the pills. Specifically, the complained-of evidence was used to prove the State’s possession-with-intent-to-deliver case and refute appellant’s defensive theory. Furthermore, although some time was spent developing the complained-of drug-offense evidence, the testimony was limited to Detective Starr and a few questions of Mozee. Nevertheless, based on our review of the record, we do not believe that the complained-of evidence caused the jury to be confused or distracted or caused the jury to give the evidence undue weight, especially because, as we conclude later, the evidence affirmatively links appellant to the pills.

Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear disparity” between the danger of unfair prejudice posed by the complained-of evidence and its probative value. See id.; see also Conner, 67 S.W.3d at 202. Thus, we cannot conclude that the trial court abused its discretion in admitting the complained-of Stewart v. State Page 9 evidence over appellant’s Rule 403 and 404(b) objections. See TEX. R. EVID. 403, 404(b); see also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule appellant’s first two issues.

III. IDENTITY OF THE CONFIDENTIAL INFORMANTS

In his third issue, appellant asserts that the disclosure of the identity of the confidential informants was necessary for a fair determination of guilt because, though not directly involved in the charged offense, the informants were an integral part of the State’s case. A. Standard of Review

We review a trial court’s ruling on a defendant’s motion to disclose the identity of a confidential informant for an abuse of discretion. See Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); see also Haggerty v. State, 429 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)). Under this standard, a trial court’s decision will not be disturbed on appeal unless it falls outside the “zone of reasonable disagreement.” Haggerty, 429 S.W.3d at 8. We do not substitute out judgment for that of the trial court, but instead, determine whether the trial court’s decision was arbitrary or unreasonable. Portillo v. State, 117 S.W.3d 924, 928 (Tex. App.—Houston [14th Dist.] 2003, no pet.). B. Discussion

The State has the “privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer . . . conducting an investigation.” TEX. R. EVID. 508(a). Stewart v. State Page 10 There are three exceptions to this privilege, one of which appellant claims is applicable here. See id. at R. 508(c).

The “Testimony of Merits” exception requires disclosure of an informant’s identity if it appears from the evidence in the case or from other showing by a party that the informant may be able to give testimony necessary to a fair determination of a material issue on guilt or innocence in a criminal case. TEX. R. EVID. 508(c)(2). The burden is on the defendant to show that the informant’s testimony may be necessary to a fair determination of guilt or innocence; mere conjecture or supposition about possible relevancy is insufficient. See Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991); see also Rust v. State, No. 12-13-00157-CR, 2014 Tex. App. LEXIS 8532, at *4 (Tex. App.— Tyler Aug. 6, 2014, no pet.) (mem. op., not designated for publication). As stated in Bodin, the informant’s testimony must “significantly aid the defendant.” 807 S.W.2d at 318. However, courts have recognized that because the defendant actually may not know the nature of the informant’s testimony, he is required to make only a “plausible showing of how the [informant’s] information may be important.” Id.; see, e.g., Rust, 2014 Tex. App. LEXIS 8532, at *4.

The defendant has the initial burden of demonstrating that the informant’s identity must be disclosed. Blake v. State, 125 S.W.3d 717, 728 (Tex. App.—Houston [1st Dist.] 2003, no pet.). If the defendant meets his burden, the trial court must hold an incamera hearing to provide the State with an opportunity to present facts that rebut the defendant’s preliminary showing. See Bodin, 807 S.W.2d at 319. Stewart v. State Page 11

In response to appellant’s request for the State to disclose the identities of the informants used in the “controlled buys,” the trial court asked how the disclosure of the informants’ identities was necessary to a fair determination of guilt or innocence, and appellant argued the following:

Well, my theory is it is highly prejudicial and it’s going to inflame the jury. It’s going to—it’s an attempt by the State to bolster their case by extraneous evidence. And—and, you know, they’re trying to show, well, Mr. Stewart is a drug dealer, therefore, you know, he was there and these pills were there, so he had to know they were there. I don’t think that it—I agree with you. I don’t think that it does have any direct bearing on whether or not he possessed these pills on December the 7th. But the prejudicial effect and the fact that it just bolsters the case against my client, that’s what I believe is—is—is the detriment here.

Later, the trial court asked appellant “if you have any other ideas on how it would be plausible or what would make a plausible showing, let me know now.” Appellant responded,

Judge, I—without more information, I have no idea what I could be—what could be developed as far as a plausible showing of a—of any evidence that might be beneficial to the defense. Because I—I don’t—I mean—you know, this is a circular argument. I realize that. But without knowing who they are, I can’t—I can’t—I can’t tell you that I—that there may be a—you know, some evidence that would be beneficial to the defendant to the defense in this case. I don’t know how to put it any other way.

At this point, the trial court sustained the State’s objection to the disclosure of the identities of the informants.

A review of the record reveals that appellant admits that the identities of the informants do not have any bearing on whether appellant possessed the drugs on the date in question. Compare Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991) (“Whenever it is shown that an informant was an eyewitness to an alleged offense then Stewart v. State Page 12 certainly that informant can in fact give testimony ‘necessary to a fair determination of the issues of guilt, innocence.’ Thus, we hold that appellant was entitled to disclosure of the informant’s identity and the trial court erred in failing to instruct the officer to disclose such or to proceed with the procedures delineated in Rule 508(c)(2).”), with Long v. State, 137 S.W.3d 726, 732-33 (Tex. App.—Waco 2004, pet. ref’d) (concluding that an informant who supplied information establishing probable cause for the issuance of a search warrant was not a material witness in a controlled-substance case that arose from the execution of the warrant because the informant was not present during the search, and because the evidence supporting the conviction was supplied by the officer who conducted the search). Moreover, appellant only proffers speculation and conjecture as to the potential relevancy of the identities of the informants. See Bodin, 807 S.W.2d at 318; see also Rust, 2014 Tex. App. LEXIS 8532, at *4. In other words, appellant was not able to articulate any plausible showing to the trial court when specifically asked how the disclosure of the informants’ identities would be necessary to a fair determination of guilt or innocence. See TEX. R. EVID. 508(c)(2); Bodin, 807 S.W.2d at 318; see also Rust, 2014 Tex. App. LEXIS 8532, at *4. Accordingly, we cannot say that appellant has met his burden of demonstrating that the informants’ identities must be disclosed. See Blake, 125 S.W.3d at 728. We overrule appellant’s third issue.

IV. EVIDENTIARY SUFFICIENCY

In his fourth issue, appellant complains that the evidence supporting his conviction is insufficient. More specifically, appellant argues that the evidence is Stewart v. State Page 13 insufficient to prove possession because the controlled substance was found in Mozee’s apartment, and because Mozee claimed possession. A. Standard of Review

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly 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. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are treated equally: “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder Stewart v. State Page 14 is entitled to judge the credibility of the witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability; and (4) adequately describes the particular offense for which the defendant was tried. Id.

The elements for possession of a controlled substance with intent to deliver are that the defendant: (1) possessed a controlled substance in the amount charged; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(38) (West Supp. 2014), 481.112(a); see also Erskine v. State, 191 S.W.3d 374, 379 (Tex. App.—Waco 2006, no pet.) (citing Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.— Houston [1st Dist.] 2004, no pet.)). When the defendant is not in exclusive possession of the place where the controlled substance is found, the State must also show that the defendant is affirmatively linked to the controlled substance. Haggerty, 429 S.W.3d at 5. B. Discussion

It is undisputed that this is an affirmative-links case. An affirmative link generates a reasonable inference that the defendant knew of the contraband’s existence and Stewart v. State Page 15 exercised control over it. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Courts have identified the following factors that may help to show a defendant’s affirmative links to a controlled substance: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the controlled substance; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband or controlled substances when arrested; (6) whether the defendant made 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 contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place whether the controlled substances was found; (12) where the location of the controlled substance was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). No set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.— Houston [14th Dist.] 2001, pet. ref’d). Affirmative links are established by the totality of the circumstances. See Wootton v. State, 132 S.W.3d 80, 87 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). The number of factors present is not as important as the logical force the factors create to prove the defendant knowingly possessed the controlled Stewart v. State Page 16 substance. See Black v. State, 411 S.W.3d 25, 28-29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

In the instant case, the evidence showed that the twenty-one pills were found in plain view on Mozee’s kitchen counter and within ten feet from where appellant was detained by the SWAT team. Investigators also testified that the keys to appellant’s vehicle and a plastic bag that appellant had carried into the apartment were found on the counter next to the pills. Additionally, two baggies of marihuana were found in plain view in the kitchen and in close proximity to appellant. Moreover, when detained, appellant made incriminating statements to investigators. Specifically, appellant stated: “I don’t know what the big deal is, it’s just 10 to 15 Ecstasy pills that I sell for, like, $3.00.” Investigators also found a large amount of cash on appellant’s person—$1,211—and a key to Mozee’s apartment on a keychain contained in appellant’s pocket. Furthermore, Detective Starr testified that he observed appellant use the key to gain access to Mozee’s apartment on multiple occasions during the five-month investigation into appellant’s drug dealing. Investigators also found that appellant had digital scales—commonly used in the drug trade—in one of his vehicles and that appellant had communicated with people via text message about drug deals.3 And finally, Detective Starr recounted the twelve “controlled buys” that appellant had made with informants.

State’s Exhibit 10 showed the following exchange, as it appeared on his cell phone, that appellant 3

had with an unknown source:

Incoming: Yu got tabs bro . . .

Outgoing: Yeah, how many Stewart v. State Page 17

Based on the foregoing evidence, we cannot say that appellant’s connection to the seized pills was merely fortuitous. See Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005) (noting that the State “must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule”). The foregoing evidence demonstrates appellant’s involvement with drugs. See Evans, 202 S.W.3d at 162 (stating that, among other things, mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs); Poindexter, 153 S.W.3d at 405; see also Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (noting that evidence which links the defendant to the controlled substance suffices for proof that he possessed it knowingly). As such, we conclude that the evidence links appellant to the seized pills. See Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 405; Brown, 911 S.W.2d at 747; see also Black, 411 S.W.3d at 28-29.

Nevertheless, appellant emphasizes on appeal that he did not exercise care, custody, or control over the pills because Mozee stated that the pills were hers. However, a review of the testimony shows that Mozee initially told investigators that she did not know anything about the pills and denied that they were hers. She later changed her story to contradict her initial statement. In any event, we note that it is within the province of the factfinder, the jury here, to judge the credibility of the witnesses. See

Incoming: Prolly three . . . gone have to meet yu in bout a hour.

Outgoing: K just call[.] I’m ready. Stewart v. State Page 18 Chambers, 805 S.W.2d at 461. This means that the jury was entitled to believe all, some, or none of the testimony presented by the parties. See id. And because it is within the province of the jury, we are to defer to the jury’s resolution of conflicts in the evidence. See Jackson, 443 U.S. at 329, 99 S. Ct. at 2792-93; see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge.”). With its guilty verdict, the jury resolved any conflicts in Mozee’s statements in favor of the prosecution.

Accordingly, viewing the evidence in the light most favorable to the jury’s verdict, we cannot say that the evidence is legally insufficient to support appellant’s conviction. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894. We overrule appellant’s fourth issue.

V. CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of the trial court.

AL SCOGGINS Justice

Stewart v. State Page 19

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 18, 2015 Do not publish [CRPM]

Stewart v. State Page 20

Footnotes

[1] When asked about TFMPP, Detective Starr noted: It’s a—it’s a drug that mimics Ecstasy, MDMA, methylenedioymethamphetamine. It’s not the same drug, but it mimics it. It has some of the same side effects as Ecstasy. It creates a euphoria type of experience for the drug users. Sometimes it will last—it takes 20 to 30 minutes to take affect [sic]. Sometimes it will last three to four hours. Detective Starr later admitted that the terms Ecstasy and TFMPP are often used interchangeably and that the drugs look alike. He also affirmed that because Ecstasy and TFMPP are so similar, “dealers often think they have Ecstasy so they will call something Ecstasy when in fact it is TFMPP.” Stewart v. State Page 3 Stewart v. State Page 4

[2] Appellant also argues that the complained-of extraneous drug-offense evidence constitutes improper propensity evidence. We are not persuaded by this argument, especially in light of Arnott, Mason, Payton, and Banal—all of which allow for the admission of extraneous drug-offense evidence to show intent, knowledge, and possession. See Arnott v. State, 498 S.W.2d 166, 176-77 (Tex. Crim. App. 1973); Mason v. State, 99 S.W.3d 652, 656 (Tex. App.—Eastland, pet ref’d); Payton v. State, 830 S.W.2d 722, 730 (Tex. App.— Houston [14th Dist.] 1992, no pet.); see also Banal v. State, No. 08-11-00032-CR, 2012 Tex. App. LEXIS 10661, at **10-12 (Tex. App.—El Paso Dec. 21, 2012, no pet.) (mem. op., not designated for publication). And as we describe later, we are not convinced that the complained-of extraneous drug-offense evidence confused or distracted the jury or suggested a decision on an improper basis. See TEX. R. EVID. 403; see also Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d). Stewart v. State Page 7 Stewart v. State Page 8