### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00727- CR

Jason Raf

ie Nazar i, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 2023 06, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found J ason Rafie Nazari g uilty of possession with intent to deliver a controlled substance, namely coca ine, in an amount of four g rams or more but less than 200 g rams. See Tex. Hea lth & Safety Code Ann. § 481.112 (West 2010). After finding that Nazari had been convicted of two previous felonies, the trial court sentenc ed him to eig hteen y ear s’ imprisonment. Nazari appea ls, asser

ting that the evidenc e is insufficient to sustain the jury ’s verdic t reg arding the elements of posse ssion and intent to deliver. We aff irm the trial cour

t’s judgme nt.

BACK GR OUND On April 27, 2009, police office rs executed a sear ch war rant for the residenc e located at 941 East 491⁄2 Street in Austin, Texas afte r the Austin Police Depa rtment rec eived information thatNazari, the alleg ed resident, was selling coca ine. At Nazari’s trial on the resulting char g e, the jury 1 hear d t est imony from three Austin police office rs involved in the sear ch and an Austin Police Depa rtment che mist. Detec tive Stephen Shafer testified that upon rea ching the residenc e, the office rs knocked on the door, announced their prese nce as police officer s with a sea rch w arr ant, and, a fter waiting fiftee n to twenty seconds, breac hed the door. Shafe r, the fir st to enter the efficie ncy -sty le apar tment, testified that the first thing he saw was a fema le in the apar tment’s living room. He then found Na zari exi ting the bathroom, which wa s connec ted to the living r oom throug h the kitchen. 2

After they detained Nazari and the woman found in the living room, the office rs

sear ched the apar

tment for narc otics. They found a plastic bag containing white powder floating in the toilet, later identified by a n Au stin Police Depa

rtment chemist as 13.55 g rams of powder coca ine. Acc ording to Shafer, a fter f inding the c ocaine in the toilet, Shafer told Nazari that “it didn’t all g o down.” Na zari sighe d in response.

During the sear ch, police also discovere d an Aleve bottle containing approximately tw e n ty in d iv id u a l cra ck-c ocaine rocks, amounting to 4.27 g rams, on a window sill in the living room. I n the living room closet, police found a jar containing marijuana , an assortment of presc ription pills, and a c lear

dish holding .95 g rams of cra ck coc aine. Anothe r assortment of presc ription pill s was

The fa cts rec ited here in are taken f rom the testimony

and exhibits admitted at trial. 1 When questioned, Shafer first stated that he encounte red Nazari “coming out of the 2 bathroom and the small kitchen are a.” Testimony later clar ified that Shafer in fac t observe d Nazari coming out of the bathroom itself. 2found on the living room television stand. Shafer testified at trial that the amount of narc otics found

in the apar

tment was consistent with dea ling r ather than individual use. A Py rex measuring cup and digital scale , b o t h containing trac es of a powder preliminarily identified as coca ine, wer e found in plain view on the kitchen counter along with two container s of b ak i n g soda. Shafer testified that the measuring cup, baking soda, and digital scale

wer e tools used to manufa cture cra ck coc aine.

I n their sear ch of the apar

tment, police also c o ll e c te d a s ma ll, red notebook containing

a re cord of

names a nd numbers. At trial, Shafe r identified a pag e rippe d from the book a s a “tally sheet,” a common method used to rec ord the sale of cra ck coca ine. The numbers noted on the tally sheet, Shafe r testified, a

re c onsistent with selli ng cra ck coc aine. 3 The living room contained a photogr aph of Nazari and sever al p ap ers, including two letters and two vehicle reg istration documents, i d en tify ing Nazari’s addre ss as 4912 Har mon Avenue , a re sidence located ne ar the eff iciency apar tment. The jury found Nazari g uilty of possession with intent to deliver a co n t ro l led substance, namely coca ine, in an amount of four g rams or more but less than 200 g rams. During the punishment phase, the State prese nted evidenc e of two prior felony offen ses, and Nazari was sentenc ed to eig hteen y ear s’ imprison m ent. He appea ls, arg uing that the evidenc e is leg ally and fac tually insufficient to sustain the convic tion.

Nazari’s counsel arg

ued that the numbers on the “tally sheet” and notebook wer e also 3 consistent with scores f

or g ames such a s Yahtzee or g in rummy

.

3STANDARD OF REVIEW The Texas Court of Criminal Appea ls rec entl y ab ro gated the fac tual sufficie ncy standard of revie w. The court held in Brooks v. State , 323 S.W .3d 893 (Tex. Crim. App. 2010), that there is no meaning ful distinction betwe en the f actua l sufficienc y

standard of revie w and the leg al sufficie ncy

standard of

revie w, id

. at 895; both apply the standar d set forth in Jack son v. Virginia

. 443 U.S. 307, 319 (1979). Acc ording ly , we analy ze Nazari’s arg uments under the Jack son standard. See id .; Brooks , 323 S.W .3d at 895.

I n revie wing the su ff

i ciency of the evidenc e to support a conviction, we view all evidenc e in the light most favor able to the judgme nt to deter mine whether any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. Jack son , 443 U.S. at 31 9. I t is the responsibility of the fac tfinder to resolve conflicts in the testimony , weig h the evidenc e, and draw

rea sonable infe renc es. Id . The trier of fa ct is the sole judge of the weig ht a nd

cre dibilit y of the evidenc e, and we may not substitut e o u r j u d gm en t for that of the fac tfinder. Dewberry v. State , 4 S.W .3d 735, 740 (Tex. Crim. App. 1999). We must presume that the fac tfinder

re s olved any conflicting infere nces in favor of the conviction. Jack son , 443 U.S. at 326. Th e standard of revie w is the same for direc t and circ umstantial evidenc e case s; circ umstantial evidenc e may be as probative as direc t evidence i n es t ab l ishing the g uilt of an actor
. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

DISCUSSIO N To prove possession of a controlled substance with intent to de liver, the State must establish bey ond a rea sonable doubt that Nazari: (1) possessed a controlled substance in the amount 4alleg ed; (2) intended to deliver the controlled substance to another ; and (3) knew that the substance

in his p o s s es s i o n was a controlled substance. Tex. Hea lth & Safety Code Ann. §§ 481.002(38), 481.112(a) (West 2010); see also King v. State , 895 S.W .2d 701, 703 (Tex. Cri m . Ap p . 1 995). Nazari arg ues on appea l that the S tate did not prove the first and second el em en t s of t he offense. Rather, Nazari contends, the State “prove d nothing more than [t hat] the appellant was prese nt at the time the sear ch wa

rra nt was executed.”

Possession To establi s h possession of a controlled substance, the State must prove bey ond a

rea sonable doubt that the defe ndant exerci sed car e, custody , control, or manag ement over the contra band. Tex. Hea lth & Safety Code Ann. § 481.002(38). When the defe ndant is not in exclusive possession of the place wher e the contra band is found, his knowledg e or control over the contra band cannot be established unless additional independe nt fac ts and circ umstances aff irmatively link him to the contra

band. P o i n d

ex t er v. State , 153 S.W .3d 402, 406 (Tex. Crim. App. 2005). I t is not enoug h to show that Nazari was mere ly prese nt in the vicinity of the controlled substance; the State must show additional links betwee n Nazari a nd the contra

band. Id

. There are many fa ct o rs by which a defe ndant may be sufficie ntly linked to the contra band, including: (1) the defe ndant’s prese nce wh en a sear ch is conducte d; (2) whether the contra band was in p l ai n v iew; (3) the defe ndant’s proxi mity to and the acc essibility of the contra band; (4) whether the defe ndant was und er the influence of contra band when arr ested; (5) whether the defe ndant pos sessed other contra band or narc otics when arre sted; (6) whet h er t h e defe ndant made incriminating statements w h e n a r r e s ted; (7) whether the defe ndant attempted to flee ; 5(8) whether the defe ndant made furtive g estures; (9) whether there was an odor of contra band; (10) whether oth e r c o n tr a

b a n d or drug para

pherna lia wer e prese nt; (11) whether the defe ndant owned

or had the rig ht to possess the place wher e the drug s wer e found; (12) whether the place wher e the drug s wer e found was enclose d; (13) whether the defe ndant was found with a larg e amount of cash; and (14) whether the conduct of the defe ndant indicated a consciousness of g uilt. Figueroa v. State , 250 S.W .3d 490, 500 (Tex. App.—Austin 2008, pet. ref ’d). These fac tors are “simply some fac tors which may circ umstantially establish the leg al sufficie ncy of the eviden ce to prove a knowing ‘possession.’ They are not a litmus test.” Id

. (citing Br o w n v. State , 911 S.W .2d 744, 745 (Tex. Crim. App. 1995)).

The number of links is not dispositi ve, rathe r it is the logic al forc e of all the evidenc e, direc t and circ umstant i al , which establishes possession. Id

. Nazari arg ues that the evidenc e is insufficient to support his conviction beca use a number of the fac tors set out in Figueroa are absent in this ca s e. A co u rt , howeve r, should not focus on the absenc e of aff irmative links, but rathe r should consider the log ical for ce of links that are prese nt. Hurtado v. State , 881 S.W .2d 738, 745 (Tex. App.—Houston [1s t Dist.] 1994, pet. re f’d)

.

Her e, sever al fac tors link N a za r i to th e c o n tr a

b a n d found, particula

rly the 13.55 g rams of coca ine found in the toilet. First, Nazari was prese nt inside the residenc e when it was sear ched. Nazari was also seen coming out of t he bathroom wher e 13.55 g rams of coca ine s at i n plain view inside the toilet bowl. Fur t h ermore, approximately fiftee n to twenty seconds passed betwee n the office rs’ knock and their brea ch of the apar tment. Shafer testified that acc ording to his training and experience , “numer ous subjects, upon a knock-a nd-announc e sear ch war

rant, will try to discard or

6destroy evidenc e, basica lly the toilet being a very g ood method.” He also stated that Nazari’s actions

wer e consistent with some o n e at t empt ing to destroy evidenc e by flushing it down the toilet. Additionally , afte r the coca ine was found, Detec tive Shafer told Nazari that “it didn’t all g o down” and Nazari sighe d in response . This circ umstantial evidenc e works to cre ate a strong infere nce that Nazari attempted to flush the coca ine down the toilet. Fur thermore , other drug s and drug para pherna lia wer e also found in the apar tment, along with Na z ar i ’s persona l items, including a photogr aph and sever al letters. These fac ts toge ther cre ate a sufficie nt logic al forc e that would allow

a re asonable jury

to find possession of the 13.55 g rams of c ocaine bey ond a re asonable doubt.

Intent to Deliver As wi t h p ossession, intent to deliver may be proven by circ umstantial evidenc e. Gonzales v. State , 761 S.W .2d 809, 815 (Tex. App.—Austin 1989, pet. ref ’d). Fa ctors that may be considere d in deter

mining intent to deliver include the nature of the location of the defe ndant’s

arr est, the quantity of drug s possessed, the manner in which the drug s are packa g ed, the prese nce or absenc e of drug para

pherna lia indicating use or sale, whether the defe ndant possessed a larg e amount

o f ca s h , an d d efe ndant’s status as a drug user. Ree d v. State , 158 S.W .3d 44, 48-49 (Tex. App.—Houston [14t h Dist.] 2005, pet. ref’d). Possession of mult iple ty pes of dr ug s and attempts by the defendant to evade arr est may also be used to pr ove intent t o deliver. See Moreno v. State , 195 S.W .3d 321, 326 (Tex. App.—Houston [14t h Dist.] 2006, pet. re f’d) (consider ing a ppellant’s failure to stop for pol i ce as p ar t of intent analy sis); Jordan v. State , 139 S.W .3d 723, 726 (Tex. App.—For

t Worth 2004, no pet.) (consider ing appellant’ s possession of three kinds of drug s as part

7of i ntent analy sis). The number of factors is less important than t he logical force the factors have

in establishing the e lements of the of fense

. Moreno , 195 S.W .3d at 326. Possession of a l ar ge q u anti ty of drug s alone can be leg ally sufficie nt evidenc e to show an intent to deliver when acc ompanied by expert testimony of a law enfor ceme nt office r that the quantit y at i ssue i ndicates an in t en t to deliver. See Reed , 158 S.W .3d at 49 (holding evidenc e is leg ally sufficie nt in light of expert testimony that liquid codeine seized from appellant was larg e

am o unt ty

pically not for persona l use); Rhodes v. State , 913 S.W .2d 242, 251 (Tex

. App.—For

t Worth 1995) (noting that “intent to de liver may be inferr ed from the quantity of drug s possessed”) , aff’d , 945 S.W .2d 115 (Tex. Crim. App. 1997).

I n the prese nt case , the jury hear d testimony from S h afe r that the totality of the circ umstances indicated an intent to deliver. Fur thermore , another Austin police o ff icer , Shane Woodward, testified that “ the amount of narcotics seiz ed[] are indicative to me of somebody who

m anufa cture s and distributes narc otics.” I n addition to the 13.55 g rams of coca ine in t h e t o i l et , approximately twenty rocks (4.27 g rams) of cra ck coca ine, a number o f p re s cr iption pills, and another .95 g rams o f cra ck coca ine wer e found elsewhe re in the apar tment. Shafer testified that individual users usually purcha se only a few cra ck rocks at a time and that the number of cra ck rocks seized was substantially larg er than what would be consistent with a user. I nstead, the drug s seized

wer e consistent with drug dealing

. Equipment commonly used for the manufa cture of cra ck coca ine from cocai n e p o wd er and which contained trac es of coca ine was also found in the apar tment. Additionally , police found a paper identified by Shafer as a “tally sheet” used to rec ord sales of c rac k coca ine.

8Nazari arg ues that cer

tain judicially rec og nized fac tors wer e absent: he was not under the infl u en ce of any drug s at the time of the sear ch, he possessed no drug s on his person when

arr ested, he offe red no resistanc e to arr est, he made no furtive g estures, there was littl e evidenc e that Nazari owned o r possessed the apar tment, and no larg e amount of money was found in the apar tment. Nazari also identifies possible innocent explanations for much of the State’s evidence ag ainst him. Whil e conflicting evidenc e and testimony may exis t, it is the fac tfinder’ s role to judge the weight and cre dibilit y of the e vidence and re solve any conflicts. Dewberry , 4 S.W .3d at 740. The only test we may apply is whether , afte r viewing the evidenc e in the light most favor able to the verdic t, any rational trier of fac t could have found the es s en t i al elements of the crime bey ond a

rea sonable doubt. Jack

son , 443 U.S. at 319. We conclude that a ra t i o n al trier of fac t could have found bey ond a re asonable doubt that Nazari exhibit ed an intent to deliver

.
CONCLUSION Be cause the evidenc e is sufficie nt to support the jury ’s finding that Nazari possessed betwee n four and 200 g rams of coca ine with an intent to d el i v er , we aff irm the judgme nt of conviction.

__________________________________________ Diane M. H enson, Jus tice Be fore J ustices J ones, Pemberton a nd Henson Affir med Filed: January

21, 2011 Do Not Publish 9