ANTHONY RAY COSBY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ANTHONY RAY COSBY, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00385–CR

Decided: August 29, 2011

Before Justices Morris, Moseley, and FitzGerald

OPINION

Opinion By Justice Morris

In this case, a jury convicted Anthony Ray Cosby of unlawful possession, with intent to deliver, of cocaine in an amount of four or more grams but less than 200 grams.   In a single issue, appellant complains the evidence is legally insufficient to establish that he knowingly or intentionally possessed the drugs.   We affirm the trial court's judgment.

Factual Background

Officers executed a search warrant for an apartment in the 2700 block of Grand Avenue in Dallas.   Upon entry into the apartment, officers found four persons.   One of the individuals was sitting in a chair in the entryway.   Two people were sitting on furniture in the living room.   Appellant was lying on the floor in the living room in front of a chair, the seat cushion of which held a plate containing loose crack cocaine and a razor blade in plain view.   Among the four persons in the apartment, appellant was the closest to the chair with the plate of cocaine.

Discussion

In his only issue, appellant contends the evidence is legally insufficient to link him to the drugs on the plate.   He argues that although the State demonstrated the plate of crack cocaine was within his reach, the evidence did not establish that he had knowingly or intentionally possessed the drugs because there was no evidence appellant had handled the plate or drugs or that he even knew the drugs were on the chair behind him.

In reviewing a challenge to the legal sufficiency of the evidence to support a conviction, we view all evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005).   We also assume the fact finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences to support its verdict.   See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).   The standard of review is the same for direct and circumstantial evidence cases;  circumstantial evidence may be as probative as direct evidence in establishing the guilt of an actor.   See id.   Various non-exclusive factors that we may consider when determining whether sufficient evidence connects appellant to the drugs include:  (1) his presence during the search, (2) whether the drugs were in plain view, (3) his proximity to and accessibility of the drugs, (4) whether he was under the influence of the drug when arrested, (5) whether he possessed other contraband or controlled substances when arrested, (6) whether other contraband or drug paraphernalia was present, (7) whether the drugs were found in an enclosed place, and (8) whether he had a large amount of cash.   See Evans v. State, 202 S.W.3d 158, 162 n. 12.

Appellant concedes that the cocaine on the seat cushion was within his reach.   He argues, however, that because there was no evidence he handled the plate or was even aware of the plate of drugs that was behind his head on a chair near some of his belongings, the State did not prove he knowingly or intentionally possessed the cocaine.   Appellant contends that the State's case rests entirely on his presence in the apartment and his proximity to the plate of drugs.   He asserts the evidence “more clearly shows that [he] was an acquaintance of the drug dealers and was present at the drug house to engage in other illegal activities.”

The record in this case showed that no one lived in the apartment and that it was used for the purpose of selling drugs.   In addition to the cocaine and razor blade on the plate, the chair appellant was lying in front of had a set of keys, $50 in cash, two small greenish plastic baggies, and a cell phone that, according to the trial testimony of the searching officers, appellant admitted was his.   On the floor in front of the chair where appellant was lying were two video game controllers, more cash (including a $20 bill and a $5 bill), and an ashtray with a “Sherman cigar” that may have been dipped in PCP.1 Police discovered prepackaged cocaine in the kitchen in individual baggies that matched the cocaine and the baggies found on the chair in the living room.   Viewing the evidence in the light most favorable to the verdict, we conclude there is legally sufficient evidence to link appellant to the cocaine.   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. In the kitchen, officers found vials of PCP next to Sherman cigarettes.   Additionally, an officer testified that before the search warrant was executed, a confidential informant had gone to the apartment and bought PCP in a vial.   The officer further explained the PCP “ ․ usually comes with a small Sherman cigar they dip it in and smoke it.”.  FN1. In the kitchen, officers found vials of PCP next to Sherman cigarettes.   Additionally, an officer testified that before the search warrant was executed, a confidential informant had gone to the apartment and bought PCP in a vial.   The officer further explained the PCP “ ․ usually comes with a small Sherman cigar they dip it in and smoke it.”

JOSEPH B. MORRIS JUSTICE

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