### 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. 03-12-00203- CR

Joshu a Dwayn e Davis, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 119 TH JUDICI AL DISTRICT NO. B -11 -02 77- SB , H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

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

A jury convicted appellant J oshua Dway ne Davis of th e o ff

en s e of possession of a controlled substance, coca in e, wi t h i ntent to deliver. See Tex. Hea lth & Safety Code § 481.102(3)( D), .112(c)

. Punishm en t was assessed at 25 y ear s’ imprisonment. In six issues on appea l, Davis asser

ts that the district court abuse d its discretion in deny ing his motion to suppress

on various g rounds, that the jury improperly considere d the evidenc e that Dav i s soug ht to have suppressed, and that the evidenc e is insufficient to support h i s conviction. We will aff irm the judg ment.

BACK GR OUND

The jury hear d evidenc e that, on F ebrua ry 2, 2011, a confide ntial inf ormant aler

ted the San Ang elo Police Depa rtment that a person later identified as Davis was involved in narc otics traff icking

. The evidenc e, which we discuss in more detail below as it is rele vant to Davis’s issueson appea l, tended to show that office rs proce eded t o fo l l o w Davis’s vehicle around San Ang elo

and—af ter observing Davis eng ag e in sever al of what they beli ev ed t o be drug transac tions, including two at a motel in San Ang elo that was known for narc otics activity —initiated a traff

ic stop

on the vehicle. Following the stop, office rs arr ested Davis and discovere d cra ck coca ine and other
contra band in D avis’s vehicle and on his person, and Davis was later char g ed with posse ssion of a controlled substance with intent to deliver. Prior to trial, Davis filed a motion to suppress, asser ting that the traff

ic stop and arr est wer e illega l. Following a hearing, the district court denied the motion
to suppress, finding that the stop was justified either by the office rs’ rea sonable suspicion to believe that a traff

ic offe nse had been committed or by the office rs’ probable ca u s e to arr est Davis for

narc otics activity

. The district court also found in the alternative that the office rs had probable cause to arr est Davis for driving with a suspended license, an offe nse that the officer s had dis cover ed at some point following the tr aff ic stop. The ca se proce eded to tr ial. The jury found Davis guilty

as char g ed and assessed punishment as noted above. The district court sentenc ed Davis in acc ordanc e with the jury ’s ver dict. This appea l followed.

ANALYSIS Motion to supp ress

Davis’s first four issues challeng e the distric t co urt’s denial of Davis’s motion to suppress evidenc e and the jur y ’s s u b s equent consideration of the evidenc e that Davis soug ht to suppress. I n his f

irst issue, Davis asser

ts that the district court abuse d its discr etion in f inding that the arr esting office rs had r easona ble suspicion to stop his vehicle for c ommitt ing a traff ic offe nse. I n his second issue, Davis asser ts that the district court abused its discretion in fi n d i n g t h at the

2office rs had probable cause at the time of the traff ic stop to arr est Davis for narc otics activity

. In his third issue, Davis asser

ts in the alternative that the district court abused its discretion in finding that the office rs had probable cause following the stop to ar re s t h i m for the offe nse of driving with a suspended license. And, i n his fourth is sue, Davis asser ts that the j ury i m p ro p erly considere d the evidenc e obtained f

ollowing the tr aff

ic stop that Davis contends should have been suppr essed. 1 “In revie w of a tria l court’s rulingon a motion to suppress, an appe llate cour t must apply a st andar d of abuse of di scre tion and overturn t he trial court’s rulingonly if it is outside the

zone of rea sonable disag ree ment.” Martinez v. State , 348 S.W .3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). We are to apply a bifurcated standard of revie w, g iving almost total defe renc e to a trial court’s deter mination of historic fac ts and mix ed questions of lawand fa ct that rely upon the credibility of a w itness, but applying a de novo standard of

revie w to pure que stions of law and mi x ed questions that do not depend on c redibility deter minations. Id

. (citing Guzman v. State , 955 S.W .2d 85, 87-89 (Tex. Crim. App. 1997)). When

re v i ew i n g a t ri al court’s ruling on a motion to suppress, we view the evidenc e in the light most favor able to the ruling

. State v. Robinson , 334 S.W .3d 776, 778 (Tex. Crim. App. 2011) (citing State

v. Kelly , 204 S.W .3d 808, 818 (Tex. Crim. App. 2006)). I f the trial court makes find i n gs o f fac t,

as it did here , we deter

mine whether the evidenc e supports those finding s. Id

. We then rev i ew the trial cour

t’s leg al ruling s de novo unless the finding s are dispositi ve. Id . “We will sustain the trial court’s ruling if that ru l i n g i s ‘re asonably supported by the rec ord and is corr ect on any

Davis provides no additional analy sis in his fourth issue, which appea rs to rely entirely on 1 the premise that the evidenc e wa s i l l ega l ly obtained for the rea sons explained in Davis’s first three issues. 3theory of law applicable to the case .’” Valtierra v. State , 310 S.W .3d 442, 448 (Tex. Crim.

App. 2010) (quoting Dixon , 206 S.W .3d at 590).

At the suppression hearin g an d at trial, the district court hear d evidenc e that, on 2 Fe bruar y 2, 20 1 1 , o ff

icer s with the San Ang elo Police Depa rtment wer e investigating suspected drug traff icking

. Detec tive Hank Hethcoc k of the Nar cotics Division testified that, on that date, he had rec eived information over the telephone from a confide ntial informant. Acc ording to Hethcoc k, this informant had provided acc urate information reg arding drug transac tions “we ll over 20 times.” The informant, who had initiated the contac t with Hethcoc k, told him “that he had seen an individual he knew as ‘J’ in a Mustang up in the northern part of San Ang elo.” In court, He thcock identifie d Davis as the individual known as “J.” Hethcoc k explained, “The confide ntial informant contac ted

me via telephone and told me that he had seen Mr. Davis in possession of cra ck coca ine, told

me what vehicle he would be in, and g ave an are a of wher e we could possibly locate it.” Hethcoc k added that the i nformant described the vehicle as a “gr ay For d Mustang ” and indicated that Davis

wa s t h e driver of the vehicle. The informant also told Hethcoc k that Davis had a partne r in the vehicle, ide ntified only

as “B rad.” Hethcoc k then “conta cted other members of the division, and [t hey ] went o u t i n

sear ch of the vehicle.” Hethcoc k eventua lly located the vehicle “in the northern part of San Ang elo”

I n review i n g a trial court’s ruling on a motion to suppress, “we g ener ally consider only 2 evidenc e adduce d at the suppression hear ing beca use the ruling was based on it rathe r than evidenc e introduced later.” Rachal v. State , 917 S.W .2d 799, 809 (Tex. Crim. App. 1996). “Howe ver, this gen er al rule is inapplicable wher e, as in this case , the suppression issue has been consensu al l y re- litigated by the parties during trial on the m erits.” Id

. “Where the S tate raises the i ssue at trial either without objection or with subsequent participation in the inquiry by the defe nse, the defe ndant has made an elec tion to re- op en t h e ev idence , and consideration of the rele vant trial testimony is appropr iate in our re view.” Id

. 4but observe d that “it was just occupie d by the Def endant.” The informant, who had called Hethcoc k “throug hout the incident,” told He thcock that “B rad was no longe r with ‘ J ’” and that Br ad was “ at the room cutting [t he cra ck coca ine] up, or chopping it up.” Acc ording to Hethcoc k, the informant told him t hat Davis’s r ole that day was to be “ involved in the distribution of crac k coca ine.” Hethcoc k continued monitoring the vehicle ’s ac tivity , either pe rsonally or wit h the assistance of other of

fice rs. He e x plained,

I maintained surveillance on it, let the other members of my team know the location, and then we all set up to surve[y ] the vehicle to see wher e it was g oing and what they wer e doing, and at that time I also cont ac t ed members of our Special Oper ations Section, who have marke d units, to wher e we could take down the vehicle when we neede d to.

. . . . I persona lly didn’t observe some of [t he vehicle’ s activity ] beca use, for the most part, I h ad t he ey es, so as not to burn our vehicles, or let the people know what we ar e doin g, we s top following them for brief periods of time to, so-to-spea k, let y our vehicle cool off and stay out of the are a while the other units pick up the surveillance , and while that was g oin g o n , I wa s b eing told by my team members what was happening

.
Hethcoc k testified tha

t, th r o u gh o ut th e s u

r v eillance , the vehicle was observe d making brief stops at “severa l locations,” which Hethcoc k desc ri b ed as “minut e traffic” that, he believed,

was “consistent with

. . . illega l narc otic activity .” When asked to explain what he meant by “minute traff ic,” He tchock e x plained,

J ust differ ent locations. Fr om what I have lear ned, people don’t like to co nduct business at their house, f

or fear of detec tion by law enforce ment, so they will meet p eo p l e at differ ent place s, or g o and deliver it to them. The sole purpose is for an illega l narc otic transac tion. T h ey wi ll pull up, meet somewher e, either g et out, or

5someone will g et in their car , and the whole thing takes may be, y ou know, a minute to two minutes, sometim es a little long er or shorter.

Hethcoc k also ag re ed wi th the prosec utor’s descr iption of the transac tions as “brie f encounte rs at p ar k i ng lots, convenie nce stores, things of that nature .” Although Hethcoc k did not personal l y observe any

of these tr ansac tions, he testified that other of fice rs did. Hethcoc k further testified that the vehicle was eventua lly found at the El Patio Motel in San Ang elo, which, acc ording to Hethcoc k, had a reputation in the community for being a location of narcotics t raf

ficking and other crimes. Hethcock ex plained, “I t’s more than just narc otics. I t’s just a, I h at e t o use the word cess pool, of illega l activity that takes place there , as far as there is stolen proper

ty , prostitution, narc otics, wa n ted people are there

. I t’s just that most of the bad individuals hang out there and rent rooms.” By the time Hethcoc k arr ived at the motel, he observe d Da v i s ’s vehicle parke d on the northea st side of the motel and saw Davis come out of one of th e

rooms in a differ ent building on the south side of the motel, get b ack into the vehicle, and drive

awa y . Acc ording to Hethcoc k, it was afte r 5:00 p.m. when he saw Davis exit the room, and, beca use it was ear ly Fe bruar

y , it was beg inning to g et dark outside. Hethcoc k also testified that the weather was “ fre ezing” at the time and that ther e wa s snow and ice on the g round.

After Davis had left, Hethcoc k rema ined at the motel and conti n u ed to conduct surveillance on the room from wher e Davis had been seen, believing it to be the room wher e “B rad” and the majority of the narc otics wer e located. L ater that night, Davis returne d to the motel, driving the same vehicle. Acc ording to Hethcoc k, Davis “par ked in the same spot, acr oss in a differ ent building, and then exit ed the vehicle and went to Room 146, knocked on the door, and then someone looked out and then allowed him entra nce into the room.” Hethc ock adde d that Davis “le ft pretty 6quickly ” and a g ain drove awa y . This time, Hethcock te stified, he had a marke d unit follow Davis and instructed the office rs to stop the vehicle.

One of the office rs who had initiated the traff ic stop was Detec tive Craig Thomason

o f the S an Ange lo Police Depa rtment Special Operations Unit , which was assisting the Na rc o t i cs Division on the date in question. Thom as o n was awa re that the suspect vehicle had been at the El Patio Motel and that the driver was suspected of “tra fficking narc otics throug hout the San Ang elo

are a.” Thomason tes tified that, as he was following the vehicle, he observe d that the vehicle had

an “obscur ed license plate,” which he believed was a traff ic violation. Thomason explained that he thought the license plate was “cove red with a tint-like materia l” and that the plate was “unre adable ” at approx imately forty fee t awa y . Acc ording to Thomason, i t was “c ompletely dark” outside, and “a snow storm had rec en t l y co m e t o t o wn . . . . Snow is on the g round, ice, a lot of slush, muddy slush, for lack of better words.” Thomason testified that his partne r, Detec tive Chris Chappa, ag ree d with his assessment of the license plate being obscure d. Ba sed on this observation, Thomason and Chappa initiated the tra ffic stop. 3

After stopping the vehicle, Thomason approa ched the driver side of th e v eh i cl e while C happa approa ched the passeng er side. Upon approaching the windo w, which was open at the time, Tho m as on “dete cted the strong odor of marihuana emitting from inside that vehicle.” Thomason then told Davis to exit the vehicle and place d him in handcuf fs. Thomason summarized
Photogra phs of the vehicle’ s license plate, taken afte r the traff ic stop, w ere admitted into 3 evidenc e. I n the photogr aphs, the first three letters of the licens e- p l at e n umber do appea r to be somewhat obscu re d , p articula rly from a distance. Howeve r, Thomason acknow ledg ed that the photogr aphs do not nece ssarily repr esent an acc urate repr esentation of the license plate as it appea red to the office rs as they wer e following the vehicle, as the ref lection from the came ra flash might have distorted the imag e. 7the sequenc e of events as follows: “I s aw the [t raf fic] violation. I went up to the vehicle. I mmediately when I made contact with Mr. Davis, I smelled the odor of m arihua na emitting f

rom that vehicle. There fore , he was taken from the vehicle and placed in handc u ff s fo r m y safe ty and for the prese rvation of evidenc e. That’s how it went down.” Thomason testified that, at some point afte r they had Davis exit the vehicle, t h ey d i s co vere d that Davis was driving with a suspended license, and arr ested him for committing that offe nse. Also, having now smelled marihuana inside the vehicle, T h o m ason and Chappa proce eded to sear ch the vehicle for contra band. In the cente r console of the vehicle, the office rs discovere d what they believed to be a controlled substance, which

was later d et er m i n ed to be coca ine, and a digital scale

. A larg e amount of cash was also found

on Davis’s person, s p ec ifically $1,980.00. Additionally , upon closer inspection of the vehicle, Thomason discovere d that the license plate was obscure d by what appea red to be road g rime, not a “tint-like materia l” as he had orig inally believed. Davis, who was now under arr est for both d ri v i n g wi t h a suspended license and possession of a controlled substance, was subsequently transporte d to the Tom Gre en County J ail. Once there , Davis was strip-sear ched for booking purposes. During the sear ch, Thomason observe d what appea

red to be “a clea

r plastic bag g y rig ht next to his anus,” which the jailer who was sear ching Da v i s re m o ved and handed to Thomason. Acc ording to Thomason, t he baggy “held an off- white rock- like substance, which, from [hi s] training and experience , [he] rec og nized to be cra ck coca ine.”

Ba sed on the above evidenc e, the district court denied Davis’s mot ion to suppress, and made the following finding s of fa ct and c onclusions of law on the r ecor d:

8Detec ti v e He t hcock, a San Ang elo narc otics office r, rec eived information from a

confide ntial informant that the Def endant, known as “J,” would be in possession of cra ck coc aine, that he would be in a g rey Mustang in north San Ang elo. He testified that the confide n t i al i n formant had g iven him corr ect information on 20 other occa sions approximately

. He initially located the Def endant in the g ray Mustang at about 5:00 in the evening

. He rec eived continuing calls from the confide ntial informant, which, when consulting with other officer s d o i ng the surveillance , proved to be corr ect, such as making minute traff ic stops, drug s stops, g oing to El Patio, wher e Br ad, the partne r, was supposedly cutting up cra ck coca ine. He wa s o b s erve d g oing into the El Patio Motel on two occa sions for very brief periods of time. This Court, from four y ear s of being a prosec utor in Tom Gre en Coun t y and eig hteen y ear s as being a defense attorney in Tom Gre en County , will take judicial notice that the El Patio Motel is exactly the way Detec tive Hethcoc k descr ibed it. I f y ou want to find something wrong g oing on in San Ang elo, it’s g oing to be down at the El Patio Motel, I can assure y ou. So I have to take that into acc ount, too, that are a of town wher e the Def

endant was located g oing into the motel a nd out of the motel very briefly

. The Court finds that a stop was made by Offic ers Thomason and Chappa. They made a st op for an obscure d license plate. The Court finds that Section 502.409(a )(7) of the Tex as T ra n s p o rtation Code applies. I f it has a coating , cover ing, or protec tive materia l that distorts angular visibil ity or detec tability , or alters or obscure s the letters or numbers on the plate, the color of the plate, or o t h er o ri gi nal desig n. I t doesn’t have to be road g rime, but road grime ca n be a c oating or cove ring

. The statu te further does not say the degree of how much that coating or cover ing must be opaque, as long as it obscure s. The office r testified that, from his distance, without seeing it throug h a came ra flash, that it was obscure d. He then, at some point in time, his repor

t is unclea r of, afte r stopping the vehicle, discovere d that it was not a tinted coating on ther e, but roa d g rime, he te stified. The Court also reme mbers that Fe bruar y 2nd was a very snowy day , one of those perf ect storm day s that we ve ry rar ely have in San Ang elo. The Court conc ludes that the off icer had a basis for stoppi ng the vehicle. A traf fic stop is a seizure within the meaningof the 4th Amendme nt. I n the present case , the t raf fic viol ation took place in the officer’ s view and he had sufficie nt authority

to stop the vehicle.

9The Court further finds that even though the Def endant was handcuf

fed, that this still does not mean that the office r did not have a basis for detaining the Def endant for a brief pe riod of time and ha ndcuff ing him for

his own safe ty

. The Court further finds that t h er e wa s probable cause based upon the confide ntial informant’s state ment, statements, plural, to De tective He thcock. And, lastly , the Def

endant could have been arr ested for driv i n g wh i le license was suspended, and that due to the m obility of t he vehic le, the vehic le could have been sear ched incident to arr est at that point in time for inventory , which would have resulted in the same position we are in at this point in time, so based on all those rea sons, the Court is denying the Motion to S uppress a nd we will proc eed.

The district court made the same ruling (without re- stating its ear lier finding s) when Davis re- urg ed his moti on to suppress duringtrial.

Ag ain, we must aff

irm the district court’s ruling if it is “re asonably supported by the

rec ord” and not “ outside the zone of rea sonable disag ree ment.” See Martinez , 348 S.W .3d at 922; Valtierra , 310 S.W .3d at 448. Additional l y , b ecause the district court found the t raf fic stop valid under both a theory of rea sonable suspicion to believe t h at a traff ic offe nse had been committed and a theory of probable cause to believe that a narc otics offen s e had been committed, we must sustain the ruling if it is corr ect under either theory

. See Valtierra , 310 S.W .3d at 448. For the following rea sons, we conclude that the ruling can be sustained on the theory that, at the time of the traff ic stop, the offic ers ha d probable cause to arre st Davis for c ommitt ing a narc otics offe nse. “An arr est occur s when a person’ s liberty of movement is restric ted or restra ined.” 4 Amores v. State , 816 S.W .2d 407, 411 (Tex. Crim. App. 1991). A person may be arr ested without

In this case , it is undisputed that Davis was arr ested rathe r than detained during the traff ic 4 stop, and this conclusion is supported by the rec ord. The evidenc e tends to show that Davis was told to exi t the vehicle as soon as the office rs contac ted him a nd was immediately

place d in handcuf

fs. 10a war

rant only upon a showing of pro b ab l e cause . Id

. “Probable cause exis ts wher e the police have rea sonably trustworthy information, considere d as a whole, sufficie nt to war rant a rea sonable person to believe a particula r person has committed or is committing an offe nse.” Hughes v. State , 24 S.W .3d 833, 838 (Tex. Crim. App. 2000). “The deter mination of the exis tence of probable cause

conce rns ‘the fac tual an d prac tical considerations of ever yday life on which rea sonable and prudent [people], not leg al technicia ns, act.’ ” Guzman v. S t a t e , 9 5 5 S.W .2d 85, 87 (Tex. Crim. App. 1997) (quoting Brinegar v. United States , 338 U.S. 160, 175 (1949))

. “P ro bable cause deals with probabilities; it require s more than mere suspicion but far less evidenc e than that neede d
to s u p p o rt a conviction or even that neede d to support a finding by a preponde ranc e of the evidenc e.” Id

. “The rule of probable cause seeks to acc ommodate the sometimes opposing interests of safe guarding citizens from rash and unrea sonable police conduct an d g iving fair leewa y t o l egi t i mate law enfor ceme nt eff orts.” Id

. (citing W

oodward v. State , 668 S.W .2d 337, 345-46 (Tex. Crim. App. 1984) (op. on re h’g )).

Pr o b a b le

- c a u s e d e te r mi nations are both made and revie wed by c o n s id e r in g th e to ta li ty of the circ umstances. See Illinois v. Gates , 462 U.S. 213, 238 (1983); Guzman , 955 S.W .2d at 87- 88; Amores , 816 S.W .2d at 413. Acc ording ly , it is improper to examine eac h fac t independe ntly and d et er m i n e whether eac h fac t standing alone would be sufficie nt to support a finding of proba b l e

ca u s e. See Guzman , 955 S.W .2d at 87. Rather, we are to deter mine “whe ther the fac ts, wh en taken as a whole, wer e sufficie nt to g ive the office rs probable cause to arr est appellant.” Id

. Under the totality -of- the-c ircumstance s approa ch , tips provided by a confide ntial informant are to be considere d, and the informant’s vera city , reliability , and basis of knowledg e are all rele vant fac tors in deter mining the value of a tip. See Gates , 462 U.S. at 230; Dixon v. State , 206 S.W .3d 613, 616 11(Tex. Crim. App. 2006). Additionally , “[i] t is well established that an office r who does not himself

possess probable cause for making a war rantless arr est may act upon the basis of information rela y ed
to him by another office r reque sting that an arr est be made.” Pyles v. St a t e , 755 S.W .2d 98, 109 (Tex. Crim. App. 1988); Tarpley v. State , 565 S.W .2d 525, 529 (Tex. Crim. App. 1978). “Where

sever al office rs are involved, the su m o f t he information known to the cooper ating office rs at the time o f arrest is to be considere d in deter mining probable cause .” Garrison v. State , 726 S.W .2d 134, 137 (Tex. Crim. App. 1987) (citing W oodward , 668 S.W .2d at 334). Her e, the totality of the circ umstances include the following : (1) a confide ntial informant called Detect i v e Hethcoc k and told him that he had seen an individual known as “J” in possession of crack co ca i n e; (2) the informant told Hethcoc k that “J” was driving a g ray For d Mustang in the n o rt h er n p art of San Ang elo; (3) the informant had provided acc urate i n formation reg arding drug transac tions “we ll over 20 times”; (4) Hethcoc k located the vehicle descr ibed by the informant in the are a of town wher e the informant had indicated the vehicle would be found; (5) the informant also told Hethcoc k t hat, at one point, Davis had a passeng er in the

v e h icle known as “B rad” ; (6) the informant, who had called Hethcoc k “throug hout the incident,” to ld Hethcoc k that “B rad was no longe r with ‘J’” and that “B rad” was now in a room, “cutting [t he cra ck

coca ine] up, or chopping it u p ”; (7 ) t he informant told Hethcoc k that Davis’s role that day was to “distribut[ e] the cra ck coca ine”; (8) other office rs working with Hethcoc k observe d the vehicle make brief stops at “seve ral locations,” which Hethcock ch aracter ized as “minute traff ic” that

was consistent with illega l narc otic activity ; (9) “minute traff ic” was further descr ibed as “b rief
encounte rs at parking lots, convenie nce stores, things of that nature ” for the purpose of conducting “illeg al narc otics transac tions”; (10) Hethcoc k located Davis’s vehicle at the El Patio Motel, which 12Het

h c o c k descr ibed as “a cess pool of illega l activity ,” including narc otics traff icking ; (11) Hethcoc k observe d Davis coming out of a room at the motel, walking acr oss the street to his vehicle, and then driving awa

y ; (12) l ater that evening , Hethcoc k saw Davis return to the motel, park in the same location as ear l i er , an d go to the same room; (13) Hethcoc k also saw Davis knock on the door,

someone look out the door, and that person allow Davis entry into the room; (1 4 ) He t h cock observe d Davis l ea v e the room “pre tty quickly ” and ag ain drive awa y . Viewing the above circ umstances in their t otality , we conclude that the record supports a finding by the di strict court that the police had rea sonably trustworthy information that, when considere d as a whole, is sufficie nt to w arr ant a rea sonable person to be lieve that Davis had committed or was committing a narc otics offe nse. See W

oodward , 668 S.W .2d at 344-46; McNi ckl es v. State , 230 S.W .3d 816, 819-21 (Tex. App.—Houston [14t h Dist.] 2007, no pet.). To summarize, a confide ntial informant, who had provided acc urate information reg arding drug transac tions “we ll over 20 times,” had i n fo rm ed Hethcoc k that Davis was in posse ssion of and distributing cra ck coca ine, and acc urate ly identified b o t h t h e v eh i cl e and the g ener al location in which Davis would be found doing so; other office rs observe d Davis’s vehicle make “brie f stops” at “seve ral locations” throug hout town in a manner that

was consistent with illega l narc otics transac tions; and He thcock persona lly observe d Davis on two occa sions in the same evening exit a room at a motel known as a “ce ss pool of illega l activity ,” including narc otics traff

icking , wher e Davis’s partne r was believed to be located, “cutting [t he

cra ck coca ine] up, or chopping it up.” The deter m i n at i o n that the office rs had, at the time of the traff ic s top, probable cause to arr est Davis for committing a narc otics offe nse is “re asonably supported by the recor d ” an d i s n ot “outside t he z one of rea sonable disagr eeme nt.” Acc ording ly ,

13we cannot conclude that the district court abused its discretion in denyi n g t h e motion to suppress

on that g round. Be cause we can sustain the district court’s denial of the motion to suppress on the above g round, we need not consider the alternate g rounds on whi ch t h e d i s t rict court denied the motion to suppress. And, because we ca n not conclude that the di strict court abused i ts discretion in de nying the motion to suppress, we simil arly cannot conclude that the evidenc e was improperly considere d by

the jury . We overrule Davis’s fir st, second, third, and f ourth issues.

Evid entiary suff

iciency I n his fi ft h issue, Davis asser ts that the evidenc e is insufficient to prove that he possessed the coca ine found in the vehicle he was driving

. In his six th issue, Davis asser ts that the evidenc e is insufficient to prove that he had a n intent to deliver the c ocaine

. When revie wing the sufficie ncy of the evidenc e to support a conviction, we consider all of the evidenc e in the light most favor able to the finding of g uilt to d et er m i n e wh et h er any rational trier of fac t could have found the essential elements of the off en s e b ey ond a rea sonable doubt. Jack

son v. Vir g i n a , 4 4 3 U.S

. 307, 319 (1979). We must consider all the evidenc e in the

rec ord, whether direc t or circ umstantial or proper ly or improperly ad mitted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We assume that the t rier of fac t resolved c onflicts in the testimony , weig hed the evidenc e, and drew rea sonable inferenc es in a manne r that supports the finding , and we defe r to the trier of fac t’s determ i n at i o n s of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Jack son , 443 U.S. at 318; Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010); Clayton , 235 S.W .3d at 778; seeTex. Code Crim. P roc. a rt. 38.04.

14We first addre ss the sufficie ncy of the evidenc e tending to show that Davis possessed

the coca ine. To prove that Davis possessed the coca ine, the State was require d to prove that Davis: (1) exercised control, manag ement, or car e over the contra band; and (2) knew that the item he possessed was contra

band. See Blackma n v. S t a t e , 350 S.W .3d 588, 594 (Tex. Crim. App. 2011) (citing Poindex t er v. State , 153 S.W .3d 402, 405 (Tex. Crim. App. 2005)). “Whether this evidenc e is dire ct or circ umstantial, ‘ it must establish, to the requisite leve l of confide nce, that the

acc used’s connec tion with the drug was more than just fortuitous. This is the whole of the so-ca lled ‘af firmative links’ rule.’” Poindexte r , 153 S.W .3d at 405-06 (quoting Brown v. State , 911 S.W .2d 744, 747 (Tex. Crim. App. 1995)).

There are many

fac tors by which a de fenda nt may , under the unique circ umstances of eac h case , be sufficie ntly “linked” to the contra band, including: (1) the defe n d an t ’s p rese nce when a sear ch is conducte d; (2) whether th e co n t ra b and was in plain view; (3) the defe ndant’s p ro x i m i ty to and the acc essibility of the contra band; (4) whether the defe ndant was under th e i n fl u en ce of contra

band when arr ested; (5) whether the defe ndant possessed other contra band or

n ar co t i cs when arr ested; (6) whether the defendant made incriminating statements when arr ested; (7) whether the defe ndant attempted to flee ; (8) whether t h e defe ndant made furtive g estures; (9) whether there was an odor of contra band; (10) whether other contra band 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) wh et h er the defe ndan t wa s fo u n d with a larg e amount of cash; and (14) whether the conduct of the defe ndant indicated a consciousness of g uilt. Id

. at 745. Howeve r, “[t] hese are simply some fac tors which may ci rc u mstantially establish the leg al sufficie ncy of the evidenc e to prove a knowing ‘possession. ’ 15They are not a li t m u s t es t

. ” Id

. Fur thermore , it is not the number of links that is dispositi ve, but rathe r the logic al forc e of all the evidenc e, direc t and circ umstantial. Id

. at 745. The forc e of these links need not be such as to exclude ever y other alternative hy

pothesis except the defe ndant’s g uilt. Brown , 911 S.W .2d at 748; Figueroa v. State , 250 S.W .3d 490, 501 (Tex. App.—Austin 2008, pet. re f’d)

. I n this case , the evidenc e tending to “link” Davis to the coca ine found in the vehicle includes the following : (1) Davis was the driver of and the only occupa nt in the vehicle at the time the cocaine was found; (2) the coca ine was found i n the con s o l e o f t he vehicle, t o which, the jury could have rea sonably inferr ed, Davis had easy acc ess; (3) Davis was found with a larg e amount of cash on his person at the time the coca ine was found, approximately $2,000; (4) Detec tive Thomason testified that he smelled an odor of marihuana when he approa ched the vehicle, which, the jury could have rea s o n ab l y i n fer

red, indicated that Davis had possessed other contra band; (5) an additional
amount of coca ine was subsequently found on Davis’s person, which, the jury could have rea sonably inferr ed, indicated that Davis was awa re of the coca ine in the vehicle; (6) the confide ntial informant h ad t o l d De tective Hethcoc k that Davis was in possession of coca ine; (7) a digital scale was al s o found in the vehicle; (8) based on the smell of marihuana i n t h e v eh i cl e, the jury could have

rea sonably inferr ed that Davis was under the influence of narc otics; (9) prior to the traff ic stop, Davis

was s ee n ex i t i n g a room at the El Patio Motel, which, Hethcoc k testified, had a reputation for criminal activity including narc otics traff icking ; and (10) the coca ine was found in a clea r p l as t i c bag g y , which, the jury could have rea so nably inferr ed, would have been easily visible to Davis. Viewing the above evidenc e and all rea sonable infere nces there from in the light most fa vorable to the verdic t, we conclude that a rational jury could have found beyond a rea sonable doubt that Davis: 16(1) exercised control, manag ement, or car e over the coca ine; and (2) knew that the item he possessed

was coca ine. Acc ording ly , the evidenc e is sufficie nt to prove that Davis possessed the coca ine. We

overr ule Davis’s f

ifth issue. We next addre ss the sufficie ncy of the evidenc e t en d i n g t o show that Davis had

an intent to deliver the coca ine. “De liver” means to tr ansfe r, actua lly or constructively , to a nother

a controlled substance. Tex. Hea lth & Safety Code § 481.002. “Intent can be inferr ed from the acts, words, and conduct of the acc used.” Patrick v. State , 906 S.W .2d 481, 487 (Tex. Crim. App. 1995). The “intent to deliver” element of an offe nse may be proven by circ umstantial e vidence , including evidenc e relating to the acc used’s possession of the contra band. See Moreno v. State , 195 S.W .3d 321, 325 (Tex. App.—Houston [14t h Dist.] 2006, pet. ref ’d); P a t t erson v. State , 138 S.W .3d 6 4 3 , 649 (Tex. App.—Dallas 2004, no pet.). Additional fac tors that courts have consi d er ed i n deter mining whe ther the a ccuse d had the intent to deliver include: (1) the nature of the location at which the acc used was arr ested; (2) the quantity of contra band in the acc used’s possession; ( 3) the

manner of packa g ing; (4) the prese nce, or lack there of, of drug para pherna lia for either use or sale; (5) the acc used’s possession of l arg e amounts of cash; and (6) the accused’ s status as a drug user. Utomi v. State , 243 S.W .3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007, pet. ref ’d) (citing W

illiams v. State , 902 S.W .2d 505, 507 (Tex. App.—Houston [1s t Dist.] 1994, pet. re f’d) ).

I n this case , evidenc e tending to show that Davis had an intent to deliver the coca ine includes the following : (1) the coca ine was found in a motor vehicl e, wh ich, the jury could have

rea sonably

inferr ed, wa s being used by Davis to transport the coca ine from seller to buy er; (2) the
motor vehicle was on the road in transit at the time it was stopped, which, the jury could have

rea sonably inferr ed, tended to show that an actua l drug delivery was in prog ress; (3) ear lier that day , 17office rs had observe d Davis make brief stops at other locations throug hout San Ang elo, which, the

jury could have rea sonably inferr ed, was evi d en ce t h at Davis had been eng ag ed in other drug deliverie s throug hout the day ; (4) Dav i s had made not one but two stops at the El Patio Motel, which, the jury could have rea sonably inferr ed based on Hethc o ck’s testimony conce rning the motel’s reputation for being a location of narc otics activity , was for the purpose of obtaining coca ine for delivery to others; (5) a digital sc ale wa s found in the same loc ation as t he cocaine, which, t he jury could have rea sonably inferr ed, was being used by Davis t o measure the c o ca i n e for delivery purposes; (6) a larg e amount of cash was found on Davis’s pers o n , wh i ch , the jury could have

rea sonably inferr ed, was evidenc e that Davis had been delivering the coca ine to buy ers throug hout the day ; (7) Detec tive Hethcoc k tes tified that the cash taken from Davis was in the amount of 54 twenty dollar bills and 9 o n e-hundr ed dollar bills, which, Hethcoc k testified, wer e the denominations that wer e used to pay for c ommonly

sold qua ntities of cra ck coca ine; (8) Hethcoc k testified that the confide ntial informant had told him that Davis was “distributing cra ck coca ine” on the date in question; (9) the confide ntial informant h ad also told Hethcoc k that Davis’s partne r, “B rad,” was “cutting up” or “chopping up” the coca ine, whi ch, the jury could have rea sonably inferr ed, was being done to make the coca ine easie r to deliver in specific quantities; (10) Hethcoc k also testified that nothing was found on Davis’s person or in his vehicle that wo u l d h ave enable d Davis to inge st the coca ine for his own persona l use, which, the jury could have rea sonably inferr ed,
meant that Davis was delivering the coca ine for use by others; and (11) the total amount of coca ine found in D avis’s vehicle and on his pe rson was 2.18 g rams, which, the jury could have rea sonably i n fe rre d, was a quantity that was capa ble of being distributed to a drug user other t h an Da v i s . Viewingthe above evidenc e and all rea sonable infere nces there from in the light most fa vorable to 18the verdic t, we conclude that a rational jury could h av e found beyond a rea sonable doubt that

Davis had an int ent to transfe r the c ontrolled substance from one pe rson to another . Acc ording ly , the evidenc e is sufficie nt to prove that Davis had an intent to deliver th e co caine

. We overr ule Davis’s sixt h issue.

CONCLUSION

We affir m the judgme nt of the district court.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: August 27, 2013 Do Not Publish

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