NO. 07-08-00205-CR; 07-08-00206-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MARCH 22, 2010

LYNN TAYLOR, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 55,385-D, 55,386-D; HONOR ABLE DAVID GLEASON, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION
Appellant Lynn Taylor appeals his conv ictions for possession of cocaine 1 and unlawful possession of a firearm. 2 Through two issues he challenges the legal and factual sufficiency of evidence supporting the convictions and by a third issue he contends the trial court denied his constituti onal right to present a defense. We will affirm.

1 Tex. Health & Safety Code Ann. ' 481.115(a),(d) (Vernon 2003).

2 Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2009).2 Background On March 5, 2007, members of the Amarillo police department SWAT team executed a A no knock @ search warrant for crack cocaine at a city residence. According to the warrant = s supporting affidavit, a confidential in formant told police that within fortyeight hours of March 5 appellant possess ed crack cocaine at the residence and represented to the informant that the substance was cra ck cocaine. When officers entered the residence, they found appellant = s adult daughter Amber Richardson on a living room couch. In the upstairs bedroom, they located appellant in bed with Christa Morales. Downstairs, off the living room, was what officers termed a bar area. There, in shelving above the bar officers found two baggi es containing, respectively, 19.5 grams and 5.5 grams of a substance later identified as cocai ne, and a loaded .25 caliber handgun. The shelves cont ained three letters addressed to app ellant at the residence. From these envelopes, police obtained three finger prints matchi ng appellant and one unidentified print. Another le tter was addressed to Morales at the residence. A digital scale was found in a bank bag in a drawer below the bar. A finger print lifted from the scale matched appellant. A cabinet yielded a gun holster, a box of .45 caliber ammunition, and a box of .25 caliber amm unition. Among canned food items in a kitchen cabinet, officers found 138 one-dollar bill s. In kitchen tras h, officers found baggies with the corners removed. In the upstairs bedroom occ upied by appellant and3 Morales, officers found $1,500 cash in the pocket of appellant = s pants. 3 Appellant = s wallet contained his driver = s license, which listed the residenc e as his address. Also in the bedroom was a glass crack pi pe that officers attributed to Morales. It contained residue. Appellant was indicted for possession, with intent to deliver, of cocaine in an amount four grams or more but less than two hundred gr ams and unlawful possession of a firearm. 4 The guilt-innocence phase of trial was by jury. Evidence revealed appellant was on parole for a felony convicti on at the time of the alleged unlawful possession of a firearm. A Texas Department of Public Safety chemist testified to his opinion, based on testing, that the substance in the two bagg ies was cocaine. A police officer explained that small amounts of cra ck cocaine are sold in baggies with the corners removed to better conceal the drug. Another officer explained that it is not unusual to find large amounts of cash associat ed with illegal drug sales. In his opinion, the sale of illegal drugs is a A cash and carry business. @ According to the officer, narcotics are typically sold in amounts purchas ed with ten and twenty dollar bills. There was also testimony from an officer that deal ers of crack cocaine use digital scales to weigh narcotics. And plastic bags configur ed in this manner as those found in the kitchen trash are used in the sale of small amounts of narcotics. According to other

3 Photos show appellant’s pants lying folded on the floor next to the bed. The cash consisted of seven $100 bills, one $50 bill, thirty-three $20 bills, seven $10 bills, one $5 bill, and fifteen $1 bills.

4 Appellant refused court-appoint ed legal represent ation and appeared pro se in the trial court proceedings

. No appellate issue is raised with regard to his selfrepresentation at trial.4 testimony, Richardson had children and children = s clothing and toys were located in the residence, she was a A resident @ of the residence, and mail bearing her name had been delivered to the residence. There was test imony that the residence was owned jointly by appellant and his siblings. The jury convicted appellant of the lesser-included narcotics offense of possession of cocaine in the amo unt alleged by the indictment and the firearm violation. The sentencing range wa s enhanced by appellant = s prior felony convictions and a deadly weapon finding. The c ourt sentenced appellant to pr ison terms of twenty-five years on the narcotics violati on and twelve years on the fir earm violation. This appeal followed.

Discussion In his first and second issues, appellant contends the evidence was legally or factually insufficient to sust ain his conviction for possessi on of a controlled substance and unlawful possession of a firearm because of insufficient links connecting him with the items of contraband. When conducting a legal sufficiency review, we view the evidence in the light most favorable to the verd ict to determine whether a ra tional fact-finder could have found each element of the offens e beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) ( citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The trier of fact is t he sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.5 State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Accordin gly, when performing a legal sufficiency review, we are not free to re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Rather, we A determine whether the necessary inferences are reasonable based upon the combined and cumulati ve 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). If, based on all the evidence, a reasonably-minded jury must necessarily entertain a reas onable doubt of the defendant’s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95 ( citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)). A factual sufficiency review of the evidence is A barely distinguishable @ from the legal sufficiency review under Jackson v. Virginia

. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). A factual sufficien cy review considers whether the evidence supporting guilt, though legally suffici ent, is so weak that the jury = s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury = s verdict is against the great weight and preponderance of the evidence. Id. ; Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The gravamen of appellant = s challenge is the sufficiency of evidence proving his possession of the crack co caine and a firearm. A Possession means actual care, custody, control, or management. @ Tex. Penal Code Ann. ' 1.07(a)(39) (Vernon Supp.6 2009). A person commits a possessory off ense only if he voluntarily possesses the prohibited item. See id. ' 6.01(a) (Vernon 2003). A Possession is a voluntary act if the possessor knowingly obtains or receives the th ing possessed or is aware of his control of the thing for a suffici ent time to permit him to terminate his control. @ Id. ' 6.01(b). To prove unlawful possession of a contro lled substance, the State must prove the accused exercised actual care, cu stody, control, or management over the contraband and he knew the matter possessed wa s contraband. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2009) and ' 481.115(a) (Vernon 2003). Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). To establish unlawful possession of a firearm by a felon, the State must prove the accused was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or fr om supervision, whichever date is later. Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2009). We anal yze the sufficiency of the evidence proving unlawful possession of a firearm a ccording to the same standards applied in cases of unlawful possession of a controlled substance. Bates v. State, 155 S.W.3d 212, 216 (Tex.App.

B Dallas 2004, no pet.). It is not necessary for the State to prove the accused maintained exclusive possession of the contraband; rather, joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). If the accused did not maintain exclusive control of the lo cation of the contraband , however, the State must offer additional, indepe ndent facts linking the accused to the contraband.7 Poindexter, 153 S.W.3d at 406; Evans, 202 S.W.3d at 162. Thus, the defendant’s presence or proximity to contraband, if comb ined with other evidence, may be sufficient to establish his actual ca re, custody or control. Id. While not a litmus test, some of the factors linking an accused to contraband that courts have found may circumstantially show possession of contr aband include: (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 contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5 ) whether the defend ant possessed other contraband or narcotics 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 ri ght to possess the place where the contraband was found; (12) whether the pl ace where the contraband wa s found was enclosed; (13) whether the defendant was f ound with a large amou nt of cash; and (14) whether the conduct of the defendant indicat ed a consciousness of guilt. Id. at 162 n.12. Our analysis focuses not on the number of links shown but from the A logical force @ of all the evidence, direct and circumstantial. Id. at 161-62. Evidence showed the residence was owned jo intly by appellant and his siblings. But appellant had lived ther e some six months at the time officers executed the search warrant. His pants pocket contained a large amount of cash in denominations common to drug transactions. Appellant was directly tied to possession of cocaine by the evidence that, according to a confidential informant, appellant possessed crack cocaine8 at the residence and told the inform ant the substance was crack cocaine. 5 The jury could also have linked appellant to the cocaine and fir earm through evidence of mail addressed to him at the residence and bearing hi s fingerprint, found in a shelf above the bar where the firearm and drugs were found, and the digital scale, also bearing appellant’s fingerprint. When viewed in the light most favorable to the prosecution we find a rational trier of fact could have found the essential elements of possessi on of a controlled substance and unlawful possession of a fire arm beyond a reasonable doubt. Throughout trial appellant emphasized the presence of hi s adult daughter Richardson. As noted, she had childr en and the residence contained children = s toys and clothing. Relatives of appel lant testified that Richards on resided and received mail at that address. Despite t he efforts of a court-approved investigator for appellant, Richardson could not be located by the time of trial. As also noted, there was evidence that a crack pipe, found in t he bedroom occupied by appellant and Morales, belonged to Morales. While this evidence may point to occupancy of the residence by others, it does not dilute the force of evidence linking appe llant to the contraband. Viewing all the evidence in a neutral light we find the eviden ce supporting conviction is not so weak that the determination of the fact -finder is clearly wrong orunjust. The evidence was

5 This hearsay statement was admitted without objection. See Poindexter, 153 S.W.3d at 406 ( A once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding proce ss, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence @ ).9 factually sufficient to support c onviction. We overrule appellant = s first and second issues. By his third issue, appellant contends t he trial court erred by excluding his proffered evidence attempting to tie Richards on more closely to the contraband. He contends the court’s evidentiary ruling denied him his constitu tional right to present to the jury a defense asserting Richardson’s guilt. For purposes of our disposition of his third issue, although appellant did not articulate his constitutional theory to the tria l court with any specificity, we will assume the trial court was sufficiently aware of hi s contention to preserve it for our review. 6

We review a trial court = s decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). A trial court abuses its discretion when its decision is so clear ly wrong as to lie outside that zone within whic h reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Cri m.App. 2005). Outside the presence of the jury, the tria l court heard testimony from two Amarillo police officers, neither of whom was invo lved in the March 2007 possession arrest for which appellant was being tr ied. Their testimony conc erned events that occurred in January 2007. One officer testified he inve stigated a police report of an aggravated

6 Proper preservation of error require s a party make a timely and specific objection as soon as the basis for the objection becomes apparent, and the complaint on appeal must not vary from the trial court objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 536 (Tex.Crim.App. 2004). Even claims of constitutional error ma y be waived if not properly brought to the attention of the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (waiver of objection underConfrontation Clause).10 assault that allegedly occurred in the parki ng lot of a convenienc e store on Amarillo Boulevard. The report, dated J anuary 2, 2007, told of a fight involving several people. According to the report, the officer who authored it A was told @ that someone named

A Amber Richards @ or A Amber Richardson @ had a .25 caliber handg un, may have fired it, and put it in a trash dumpster in front of the store. Although a .25 cali ber handgun was recovered from the dumpster, the officer was not able to determine if the gun was fired during the fight. He said police found no she ll casings at the scene. The second officer testified that he recovered the handgun from the dumpster. He ex plained that a surveillance video recording from the stor e showed someone disposing of the weapon, but he was not aware of the identity of this person. Police did not open a case on the incident as none of the alleged complainants wished to pursue the matter. In support of presenting this testimony before the jury , appellant argued it would show an A M.O. @ for Richardson, that a . 25 caliber gun was her A gun of choice, @ and that she planted the gun and drugs in the residence in exchange for police dropping any charge against her from the January 2 incident. The trial court rul ed the proffered evidence was not relevant, and did not allow the jury to hear the officers’ testimony. [T]here are two distinct scenarios in which rulings excluding evidence might rise to the level of a constituti onal violation: 1) a state evidentiary rule which categorically and arbitr arily prohibits t he defendant from offering otherwise relevant, reliable evidence which is vital to his defense; and 2) a trial court’s clearly erroneous ruling excluding otherwise relevant, reliable evidence which “forms such a vital portion of the case that exclusion effectively precludes the def endant from presenting a defense.” In the first category, the constitutional infirmity is in the arbitrary rule of evidence itself. In the second category, the rule itself is appropriate, but the trial court erroneously applies the rule to ex clude admissible evidence to such an extent that it effectively prevents t he defendant from presenting11 his defensive theory. In other words, the erroneous ruling goes to the heart of the defense.

Wiley v. State, 74 S.W.3d 399, 405 (Tex.Crim.App. 2002) (footnotes omitted). As we understand appellant ’s argument, he does not challenge a Texas evidentiary rule but argues the court’s ru ling fits the second scenario described in Wiley because it excluded his proffe r of otherwise relevant, reliable evidence forming such a vital part of his defensive theory that he effe ctively was precluded from presenting a defense.

Relevant evidence is A evidence having any tendency to make the existence of any fact that is of consequence to the dete rmination of the action more probable or less probable than it would be without the evidence. @ Tex. R. Evid. 401. A Evidence which is not relevant is inadmissible. @ Tex. R. Evid. 402. Evidence is relevant if it is material and probative. Steven Goode, O lin Guy Wellborn, III, and M. Michael Sharlot, 1 Texas Practice: Guide to the Te xas Rules of Evidence ' 401.1 (3d ed. 2002). To be material, the evidence A must be shown to be addressed to the pr oof of a material proposition, i.e., any fact that is of consequence to the determination of the action. @ Id. (internal quotation marks omitted). Evidence is considered probative if it A tends to make the existence of the fact more or less probabl e than it would be without the evidence. @ Id. (internal quotation marks omitted).

The Sixth and Fourteenth Amendments to the United States Constitution guarantee an accused a m eaningful opportunity to pres ent a complete defense. Crane12 v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L.Ed.2 d 636 (1986). It is equally clear, however, that t he exercise of that opportuni ty does not preclude a trial court from excluding testimonythat presents irrelevant or unreliable evidence. See Crane , 476 U.S. at 689-90 (Constitution gives tr ial judges “wide latitude” to exclude evidence that is only marginally relevant or poses undue risk of confusion of the issues); Wiley , 74 S.W.3d at 407-08 (no constitutional vi olation from exclusion of proffered testimony under Rule of Evidence 403). Accord, Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 2017, 135 L. Ed.2d 361 (1996) ( quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L. Ed.2d 798 (1988)) (“accused do es not have an unfettered right to offer [evidence] that is . . . inadmissible under standard rules of evidence @ ); United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (cons titutional right to present a defense A does not give criminal defendants carte blanche to circumvent the rules of evidence @ ). Without abusing its discretion, the trial court here could have regarded the layers of hearsay included in appellant’s proffere d testimony made it unreliable as proof appellant’s daughter was the pers on who put the .25 caliber ha ndgun in the dumpster in January 2007. See Stevens v. State, No. 01-07-00111-CR, 2008 Te x. App. Lexis 5237, at *15-16 (Tex.App.--Houston 1st Dist. July 10, 2008, no pet.) (mem. op.) (not designated for publication) (hearsay evidence is unreliable because cross-examination is not available to test the veracity of the declarant). Also wit hout abusing its discretion the court could have determined the facts pur portedly shown by the evidence, that is, that Richardson possessed and disposed of such a handgun in January 2007, were not probative of any fact of consequence to the determination of appellant’s guilt. Further,13 the trial court could have determined that any relevanc e the evidence possessed was substantially outweighed by the danger of confusion of the i ssues involved in appellant’s prosecution. See Tex. R. Evid. 403; Wiley , 74 S.W.3d at 407-08 (Rule 403 supported exclusion of evidence of alter native perpetrator). Such a conclusion by the trial court would have been supported by appe llant’s assertion the eviden ce showed a likelihood that police did not charge Richardson fo r her possession of the gun because she agreed to plant the drugs found in March on appellant. Such speculation would not have aided the jury’s determinati on of the issues properly before it in this case. For all these reasons, we see no viol ation of appellant’s constitu tional right to present a defense from the trial court’s exclusion of appellant’s proffered testimony. See Wiley , 74 S.W.3d at 405 (violation may occur from e rroneous exclusion of “otherwise relevant, reliable evidence”). We overrule appellant = s third issue.

Conclusion Having overruled appellant = s three issues, we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.