Robinson v. State

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Tracy James Robinson, of unlawful possession of cocaine weighing 400 grams or more with the intent to deliver. 1 After making an affirmative finding that appellant used a firearm during the commission of the offense, the jury sentenced appellant to 20 years’ confinement and a fine of $50,000. In six points of error, appellant argues that the evidence is legally and factually insufficient to establish (1) that he knowingly and intentionally possessed the cocaine with the intent to deliver and (2) that he used a firearm in the commission of the offense. In his seventh point of error, appellant argues that the trial court erred in refusing to charge the jury on the lesser included offense of possession of cocaine. Wе affirm.

Facts

On January 17, 2003, appellant and Jon-tue Raymond Hosey were traveling east on Interstate 10 just outside of Houston. Hosey was the driver of a four-door Ford F-150 pick-up truck in which appellant was a front-seat passenger. Around 9:30 a.m., Department of Public Safety (DPS) Trooper J.B. Crone pulled over the truck for following another vehicle too closely and driving above the posted speed limit. Hosey could not produce a driver’s license or any other identification. He stated that he had no driver’s license and was not supposed to be driving — rather, appellant should have been driving. In response to questioning by Crone, Hosey stated that he and appellant had been in Houston for four days to see a friend, that they had been staying at a Super 8 Motel, and that no one else had come to Houston with them. He first told Crone that the truck belonged to his cousin; then he said that it belonged to his cousin’s brother; and finally he said that he and the owner were not cousins. Hosey appeared nervous and hesitant when answering Crone’s questions. Appellant answered that they had been in Houston for two days and that they had driven his cousin to Houston, but he could not tell Crone his cousin’s name. Like Hosey, appellant carried no identification; he stated that he had lost his wallet.

A few minutes into the stop, Crone noticed the smell of burnt marijuana emanating from inside the truck. Appellant admitted that marijuana had been smoked in the truck. Crone also noticed а magazine for a semi-automatic weapon in the truck’s cupholder in the console and he asked appellant where he could find the weapon. Appellant reached down to the floorboard, and Crone grabbed him, telling him to back off for everyone’s safety. Crone took appellant out of the vehicle and handcuffed him. Crone found a loaded semi-automatic handgun under a shirt on the floorboard where appellant had reached. At this point, believing he had probable cause that a crime had occurred or was occurring, Crone began to search the truck.

Crone folded down the back seat and discovered two large, vacuum-sealed packages in a factоry compartment built into the back wall and running the width of the truck. A shirt had been stuffed into the opening to the factory compartment in an apparent effort to hide the contraband. Crone cut open one package with his knife and saw a powdery white substance that he believed was cocaine. He arrested both appellant and Hosey and placed them in the patrol car. While Crone and his partner were searching the rest of the truck, a recording device inside the patrol car recorded one of the men saying, “I ain’t worried about nothing. I ain’t done nothing wrong.” No cocaine residue or large sum of money was found on appellant’s person, and appellant was not under the influence of drugs or alcohol at the time of his arrest. The registered owner of the truck was K. Dotson of Gulfport, Mississippi.

At trial, DPS police sergeant J. Calaway testified that, in his opinion, the amount of cocaine found — two kilos — was too much for personal use and was possessed with the intent to deliver it to someone else. He also testified that Houston is a major distribution center for cocaine, that cocaine is usually transported by vehicle, and that Interstate 10 is a major highway running between Houston and Mississippi. He further testified that persons who transport large amounts of cocaine typically have weapons to protect the cocaine.

Possession

In his first two points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to prove that he intentionally or knowingly possessed the cocaine.

Legal Sufficiency

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

Appellant was charged as a principal and under the law of parties with possession of a controlled substance with intent to deliver. To prove the offеnse of possession of a controlled substance as a principal actor, the State must show that the accused (1) exercised actual care, custody, control, or management of the controlled substance and (2) was conscious of his connection with it and knew what it was. See Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp.2004-2005), § 481.112(a) (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). To convict under the law of parties, the State must show that the defendant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 2004). Thus, to prove possession of a controlled substance as a party, the State must show (1) that another person possessed the contraband and (2) that the defendant, with the intent that the offense be committed, solicited, encouraged, directed, aided, or attempted to aid the other’s possession. Woods v. State, 998 S.W.2d 633, 636 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Mere presence in the vicinity of a controlled substance or in a place where contraband is being used or possessed by others does not, by itself, support a finding that a person is a party to an offense. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet ref'd). Knowledge of the presence of cocaine is a required element for conviction both as a principal and as a party to the offense. See Tex Health & Safety Code Ann. § 481.115(1) (Vernon 2004).

We first address whether the evidence was legally sufficient to convict appellant of possession as a principal. The State need not prove exclusive possession of the contraband for conviction as a principal. Roberson, 80 S.W.3d at 735 (citing Harvey v. State, 487 S.W.2d 75, 77 (Tex.Crim.App.1972)). Rather, control over contraband may be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). However, when the accused, like appellant, is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes an “affirmative link” between the accused and the contraband — i.e., independent facts and circumstances which affirmatively link the accused to the contraband so аs to suggest that the accused had knowledge of the contraband and exercised control over it. 2 Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App.1981); Roberson, 80 S.W.3d at 735. An affirmative link may be established through either direct or circumstantial evidence. Brown, 911 S.W.2d at 747.

The Court of Criminal Appeals has identified several factors that may help to establish an affirmative link between the accused and the contraband, including whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the side of the car where the accused was sitting; (6) the plaсe where the contraband was found was enclosed; (7) the odor of the drug found was present in the vehicle; (8) paraphernalia for use of the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; and (13) affirmative statements by the accused connect the accused to the contraband. 3 Courts have also considered (14) whether traces of the contraband were found, (15) whether a large sum of money was found on the accused, and (16) the amount of contraband found. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, no pet.); Roberson, 80 S.W.3d at 740, 742; Poindexter, 153 S.W.3d at 412. Although several factors relevant to establishing an affirmative link may have been identified, the number of factors actually supported ‍​‌​‌‌​​‌​​‌‌​​‌​‌​​​​​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌​​​​​‌​‍by the evidence is not as important as the “logical force” they collectively create to prove that a crime has been committed. Roberson, 80 S.W.3d at 735 (quoting Whitworth, 808 S.W.2d at 569).

Appellant argues that because the evidence did no more than prove that he was an unwitting passenger in a truck being used to transport cocaine, the State did not prove that he exercised care, control, and management over the contraband 4 or that he knew that the substance was cocaine; therefore, his conviction as a principal was improper. Appellant further argues that because the evidence did not prove that he had knowledge of the cocaine, he could not have been acting with the intent to promote or assist the offense of possession of another. The State counters that the evidence presented at trial is legally sufficient to convict appellant either as a principal or as a party to the offense. It points to several linking factors that establish an affirmative link, specifically that: (1) the cocaine was conveniently accessible to appellant; (2) the cocaine was found in an enclosed sрace; (3) there was a strong odor of marijuana in the truck; and (4) appellant and the driver of the truck gave conflicting statements to Crone.

We must examine each case on its own facts. Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). A factor tending to establish sufficiency in one set of facts may be of little value in another set of facts. We will address, therefore, each factor that may help to establish an affirmative link be-» tween appellant and the cocaine.

Convenient Accessibility, Possession, and Control of the Vehicle

First, the State argues that the cocaine was conveniently accessible to the accused. Convenient access to the contraband is an accepted factor that may affirmatively link an accused to contraband found in a vehicle. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). The term “conveniently accessible” means that the contraband must be within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest that the accused had knowledge of the contraband and exercised control over it. See Rhyne, 620 S.W.2d at 601; Deshong, 625 S.W.2d at 329.

When pulled over by Crone, appellant was seated in the front passenger seat. The cocaine was discovered in a factory compartment located in the back wall of the truck, which could be seen and accessed only by folding down the truck’s back seat. Hosey admitted to having stayed in a Houston motel with appellant for at least two days and having driven a borrowed truck, whiсh turned out to be registered to a Mississippi resident. The compartment in which the drugs were found was unlocked and unable to be closed completely because a shirt was stuffed in the opening. Hosey and appellant had the keys to the truck, were alone together in the truck, and Hosey said that appellant was supposed to be driving. These factors, when taken together, offer strong support for the conclusion that appellant had control over the truck and its contents and that the cocaine was within the vicinity of and easily accessible to appellant. The location of the cocaine, therefore, suggests that appellant had knowledge of and exercised control over the cocaine and helps to establish an affirmative link.

Enclosed Space

The State argues next that because the cocaine was found in an enclosed space, appellant was affirmatively linked to the cocaine. The finding of contraband within an enclosed area is a recognized factor in establishing an affirmative link between the accused and the contraband. Deshong, 625 S.W.2d at 329. Here, the cocaine was found in a factory compartment located in the wall behind the back seat of the truck in which appellant was a passenger. The truck and the factory compartment are enclosed spaces. See Coleman v. State, 113 S.W.3d 496, 501 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex.Crim.App.2004) (finding a safe in a home an enclosed space); Hudson v. State, 128 S.W.3d 367, 374 (Tex.App.-Texarkana 2004, no pet.) (finding trunk of car an enclosed space). Thus, the location of the cocaine in an enclosed space helps to establish the requisite affirmative link between appellant and the cocaine.

Odor of Marijuana

The State also contends that the odor of marijuana in the truck helps to establish an affirmative link to the cocaine. The odor of contraband in a vehicle is an accepted factor which may affirmatively link an accused to seized contraband. Hurtado, 881 S.W.2d at 743 n. 1. To support its argument, the State relies on Whitworth v. State. See 808 S.W.2d at 569. Whitworth states that the presence of a strong odor of marijuana in a vehicle is a factor tending to establish an affirmative link to marijuana. Id. The court found that the strong odor of marijuana supported a finding that the evidence was factually sufficient to support a conviction of marijuana possession. Id. at 570.

However, in this case, appellant was charged with possessing cocaine, not marijuana, with intent to deliver. Moreover, appellant did not test positive for the use of cocaine. Therefore, the odor of marijuana does not constitute an affirmative link between appellant and the cocaine. See id.

Conflicting Statements

The State argues that appellant’s and Hosey’s conflicting statements on relevant matters support the finding of an affirmative link with the cocaine. Such conflicting statements may help to establish an affirmative link if the statements themselves, or the inference raised by their inconsistencies, establish a connection to the appellant’s knowledge of the presence of the contraband. See Roberson, 80 S.W.3d at 738.

In Roberson, appellant, a 44-year-old, was arrested, along with two teen-aged passengers, for cocaine possession. Id. at 734, 740. No illegal drugs were found on Roberson’s person, but drugs were found in the car, on the roadside, and on the two teenagers’ persons. Id. at 734. In response to questioning, Roberson said that they were returning home to Beaumont from Houston, where Roberson had gone for an interview with Wal-Mart. Id. at 736. Both passengers also said that they were returning home to Beaumont from Houston, but one said he had gone to visit his cousin and the other said he had gone to the mall. Id. In addition, the appellant said that he thought they had left Beaumont around 1:30 or 2:00, whereas one of the passengers said 1:00 and the other passenger said 4:00. Id. at 736-37. Although we acknowledged that conflicting statements about relevant matters among car occupants may help to establish an affirmative link, we held that, under those facts, the inconsistent statements did not support an affirmative link: the inconsistent statements were neither extraordinary attempts by the car’s occupants to distance themselves from the crime scene nor statements concerning matters relevant to the elements of the crime. Id. at 738. In other words, the inferences raised by the inconsistencies did ‍​‌​‌‌​​‌​​‌‌​​‌​‌​​​​​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌​​​​​‌​‍not tend to establish Roberson’s knowledge of the presence of the drugs. Id.

The case before us today is more like Duff. Duff, 546 S.W.2d at 288. In Duff, a police officer stopped the appellant’s car for speeding. Id. at 284. The appellant’s passenger told the police officer that he was a hitchhiker who had been picked up only five minutes prior to the stop by the officer, whereas appellant said that the passenger had traveled with him from Corpus Christi to Austin. Id. The court described these differing stories, when coupled with other circumstantial evidence, as a “circumstance implying guilt.” Id. at 288. The court did not explicitly explain the implication, but it “probably viewed [the conflicting story] as an attempt by the [passenger] to separate himself from a potentially incriminating scene....” See Roberson, 80 S.W.3d at 737.

Here, Hosey and appellant made conflicting statements as to how long they had been in Houston and what they were doing there. Hosey stated that he and appellant had driven to Houston by themselves and had stayed for four days to visit a friend. Aрpellant stated that he had been in Houston for two days with his cousin and Ho-sey. Neither man carried identification. Appellant could not even identify the cousin that they had driven to Houston with; and Hosey hesitated when telling Crone where they had stayed. Hosey stated that he had no driver’s license and that appellant was supposed to be driving. However, appellant did not have his license with him and claimed that he had lost his wallet. Hosey also made several conflicting statements as to the ownership of the truck.

Like Duff, but unlike Roberson, appellant’s and Hosey’s conflicting statements strongly imply that they were attempting to conceal their activities and to avoid revealing their identities, the ownership of the truck they were driving, and the reаl reason they had gone to Houston. That is, appellant’s and Hosey’s conflicting statements evidence an attempt to distance themselves from the scene of the crime. See Roberson, 80 S.W.3d at 737. Thus, appellant’s and Hosey’s inconsistent statements raise the inference that they were engaged in illegal activity — here, the possession of cocaine with the intent to deliver — that establishes a connection to appellant’s knowledge of the presence of the cocaine. See id. at 738.

Amount of Cocaine

We also consider the amount of contraband found in determining whether an affirmative link exists. Id. at 740. The power of this factor generally increases as the amount of contraband found increases. Id. This factor, therefore, is more effеctive at establishing an affirmative link when large quantities of contraband are involved. Id. For example, in Villegas v. State, we found the quantity of contraband to establish an affirmative link in a case involving the seizure of 90 pounds of cocaine and 165 pounds of marijuana. 871 S.W.2d 894, 897 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Likewise, in Sosa v. State, we found an affirmative link when 600 kilograms of cocaine were seized. 845 S.W.2d 479, 482-83 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd).

Here, two kilos of cocaine were discovered in the truck in which appellant was a passenger. J. Calaway estimated that the kilos had a street-value of $1,064,000. 5 The two kilos clearly were neither an “insignificant amount of cocaine,” nor an amount small enough to be concealed on one’s person. Cf. Roberson, 80 S.W.3d at 740 (finding 24 grams of cocaine not an insignificant amount and noting that 24 grams of cocaine is an amount small enough tо be concealed on one’s person). Rather, as Calaway testified, the amount of cocaine was too much for mere personal use. Thus, the amount of cocaine found is strongly indicative of an affirmative link between it and appellant.

Other Factors

Other factors presented by the State in support of an affirmative link are that appellant had no identification, luggage, toiletry kit, toothbrush, or razor for the purported overnight trip, but he did have a loaded firearm, ostensibly to protect the cocaine. Appellant and Hosey were traveling by vehicle along a principal corridor between Mississippi and Houston, a major cocaine distribution point. These facts tend to establish an affirmative link between appellant and the cocaine because they indicate a conflict between appellant’s statements and the physical evidence, thus supporting the inference that appellant was possessing and protecting the cocaine for the purpose of delivery.

Conclusion

In summary, appellant was a passenger in a truck found to be transporting two kilos of cocaine worth more than one million dollars. The cocaine was located in an enclosed, unlocked space in the back of a truck, concealed under a shirt. Appellant was traveling from Houston, a major cocaine distribution point, and claimed to have been there two days — an amоunt of time that conflicted with Hosey’s account — but carried none of the necessities for an overnight stay, such as a toothbrush or fresh clothing. Neither appellant nor Hosey carried any identification; Hosey was not a licensed driver, but stated that appellant was in fact a licensed driver and was supposed to be driving. Hosey gave conflicting accounts as to ownership of the truck, and he and appellant gave conflicting accounts regarding their trip to Houston. Moreover, a magazine for a semiautomatic handgun was found in plain view on the console between Hosey and appellant, and, when Crone asked where the weapon was, appellant reached toward a lоaded handgun concealed by a shirt on the floor of the truck. The jury could have found that the handgun was for the protection of the cocaine.

We conclude, based on the evidence presented at trial, that a jury could have found beyond a reasonable doubt that appellant exercised actual care, custody, control, or management of the cocaine; and that he was conscious of his connection with it and knew what it was. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(a); Wesbrook, 29 S.W.3d at 111.

We overrule appellant’s first point of error.

Factual Sufficiency

We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Cle wis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). We view all the evidence in a neutral light, and we will set aside the verdict only if the contrary evidence is so strong that the verdiсt is clearly wrong and manifestly unjust or the evidence is so weak that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004)). Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407-09. We must defer appropriately to the fact finder ‍​‌​‌‌​​‌​​‌‌​​‌​‌​​​​​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌​​​​​‌​‍to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82.

For a review of factual sufficiency, we must consider the most imрortant evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Here, neither appellant nor Hosey testified. Thus, what little contradictory evidence there is in the record was elicited from the State’s witnesses on cross-examination by appellant. Crone testified that, on the videotape of the stop played at trial, he could hear one of the suspects saying, “I ain’t worried about nothing. I ain’t done nothing wrong.” Calaway testified that not every cocaine case involves a gun, but most cases involving a large amount of cocaine, such as the one here, do involve a gun.

The jury has the sole province to decide what weight is to be given to contradictory testimony as it turns on an еvaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. A jury is free to believe any or all of the testimony of the State’s witnesses. Id. at 409. The jury’s decision, therefore, is not manifestly unjust merely because it resolves conflicting views of evidence in favor of the State. Id. at 410. Here, the jury was free to discredit appellant’s or Hosey’s statements that he had “done nothing wrong” and to decide that the State’s evidence established beyond a reasonable doubt that appellant possessed the cocaine. Thus, after neutrally examining all the evidence, we find neither that the proof of guilt was so obviously weak as to undermine confidence in the jury’s determination nor that the contradictory evidence was so strong that the standard of proof beyond a reasonable doubt could not have been met. See. Escamilla, 143 S.W.3d at 817.

We overrule appellant’s second point of error.

Intent to Deliver

In his third and fourth points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to prove that he intentionally or knowingly possessed the cocaine with intent to deliver.

Legal Sufficiency

To prove the offense of possession with the intent to deliver, the State must prove, in addition to possession, that the accused intended “to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug рaraphernalia.” Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp.2004-2005), § 481.112(a) (Vernon 2003). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence regarding an accused’s possession of the contraband. Patterson v. State, 138 S.W.3d 643, 649 (Tex.App.-Dallas 2004, no pet.) (citing Smith v. State, 737 S.W.2d 933, 941 (Tex.App.-Dallas 1987, pet. ref'd)); Mack v. State, 859 S.W.2d 526, 528 (Tex.App.-Houston [1st Dist.] 1993, no pet). Factors courts have considered include: (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused’s possession; (3) the manner of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused’s possession of large amounts of cash; and (6) the accused’s status as a drug user. Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). An orаl expression of intent is not required. “Intent can be inferred from the acts, words, and conduct of the accused.” Patrick v. State, 906 5.W.2d 481, 487 (Tex.Crim.App.1995). Expert testimony by experienced law enforcement officers may be used to establish an accused’s intent to deliver. See Mack, 859 S.W.2d at 529.

Here, appellant was arrested driving on Interstate 10, just outside of Houston, a major cocaine distribution point. He was in possession of two kilos of cocaine, which is an amount in excess of .the typical amount possessed for personal use. See Mack, 859 S.W.2d at 529 (finding 29 rocks of cocaine to be a sufficient amount from which to infer an intent to deliver). Cala-way testified at trial that “[ajnybody who has this much [cocaine] clearly is not going to use it themselves and the only other option is to possess it with the intent to deliver.” Calaway further testified that the cocaine most likely had been produced and packaged in Mexico, smuggled into the United States, and then distributed in Houston. Calaway also testified that the cocaine was well-packaged, vacuum-sealed, and surrounded by rubber in order to conceal its scent from dogs. No drug paraphernalia for the use of cocaine was found in the truck or on appellant’s person. See id. (finding that an absence of paraphernalia for smoking or using cocaine supports an inference of intent to deliver rather than intent to consume). The evidence, therefore, satisfied several of the factors considered in establishing intent to deliver. Viеwing all this evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that appellant intended to deliver or aid in the delivery of the two kilos of cocaine. See Wesbrook, 29 S.W.3d at 111.

We overrule appellant’s third point of error.

Factual Sufficiency

Appellant argues that the evidence was insufficient to show that he was aware that Hosey intended to deliver the cocaine because there was no showing that appellant was knowledgeable about the drug trade or about the wide extent to which the cocaine could be “grammed out” and sold on the street. 6 However, there is no evidence in the record to support an inference that appellant was ignorant of the drug trade and that the cocaine сould be “grammed out” and distributed. The jury could have reasonably found from the evidence outlined above that appellant knew about the cocaine and intended to deliver it.

The only evidence that could undermine the verdict that appellant possessed the cocaine with the intent to deliver is, again, that appellant might have been the person in the patrol car who said he had “done nothing wrong.” The jury, however, was free to discredit this evidence. See Cain, 958 S.W.2d at 409. Thus, after examining all the evidence neutrally, we conclude that the proof of appellant’s guilt was not so obviously weak as to undermine confidence in the jury’s determination nor was the contradictory evidence so strong that the standard of рroof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817.

We overrule appellant’s fourth point of error.

Use of a Deadly Weapon

In his fifth and sixth points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to prove that he used or exhibited a deadly weapon during the commission of the offense.

Legal Sufficiency

Patterson v. State, 769 S.W.2d 938, 940-41 (Tex.Crim.App.1989), is the seminal Texas case discussing the difference between “exhibiting” and “using” a deadly weapon. Exhibiting a deadly weapon requires only that “a deadly weapon be consciously shown, displayed, or presented to be viewed” during the commission of an offense. Id. at 941. Here, the jury found that appellant ‍​‌​‌‌​​‌​​‌‌​​‌​‌​​​​​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌​​​​​‌​‍used the firearm during the crime. 7 The jury did not find that appellant exhibited a firearm. Accordingly, we will limit our discussion to the term “use,” which rеquires that a deadly weapon, be used to achieve an intended result, namely, the commission of a felony offense separate and distinct from mere possession of the weapon. Ex parte Nelson, 137 S.W.3d 666, 667 n. 2 (Tex.Crim.App.2004). Use of a deadly weapon, therefore, not only includes the wielding of a firearm, but also extends “to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Patterson, 769 S.W.2d at 941 (emphasis in original).

Here, the jury found that appellant used the firearm in the commission of the possession of cocaine with the intent to deliver. Crone noticed a semi-automatic magazine on the console between Hosey and appellant and asked appellant where the gun was. Appellant reached towards a shirt on the floor and Crone recovered the handgun from under the shirt. We must address, therefore, whether the firearm found in the truck, facilitated appellant’s possession and intended delivery of the cocaine. See Patterson, 769 S.W.2d at 941.

It is unlikely that the presence of both the handgun and the cocaine in the truck was mere coincidence. See Dowdle v. State, 11 S.W.3d 233, 237 (Tex.Crim.App.2000); see also Coleman, 145 S.W.3d at 659 (Cochran, J., concurring) (noting that the proximity of the guns to the drugs is one factor in determining the sufficiency of the evidence to support a deadly weapon finding). The handgun was loaded and strategically placed between appellant and Hosey. See Dowdle, 11 S.W.3d at 237; see also Coleman, 145 S.W.3d at 659 (Cochran, J., concurring). Appellant was in possession of two kilos of cocaine worth over one million dollars. Sergeant Calaway testified at trial that “they” — presumably referring to people who transport large amounts of cocaine — often carry loaded weapons to protect the cocaine and that carrying a loaded weapon is “part and parcel” of cocaine possession and delivery. In light of all the evidence, a rational trier of fact could have found beyond a reasonable doubt that the firearm facilitated appellant’s possession and intended delivery of the cocaine. See Wesbrook, 29 S.W.3d at 111.

We overrule appellant’s fifth point of error.

Factual Sufficiency

The only contradicting evidence presented was (1) appellant’s failure to wield the handgun when Crone stopped the truck; (2) Calaway’s testimony that a handgun is not always involved in cocaine cases; and (3) his testimony that people own guns for reasons other than protecting cocaine. However, the jury was free to infer from the evidence that the handgun in this case was present in the truck to protect the cocaine, regardless appellant’s failure to wield it when stopped and regardless of other causes and the reason for which it may have originally been purchased. Thus, after neutrally examining all the evidence, we find that the proof of appellant’s guilt was neither so obviously weak as to undermine confidence in the jury’s determination nor the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817.

We overrule appellant’s sixth point of error.

Lesser Included Offense

In his seventh point of error, appellant argues that the trial court erred in refusing to charge the jury on the lesser included offense of possession of cocaine. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). A jury must be charged on a lesser included offense if (1) the lesser included offense is included within the proof necessary to establish the charged offense and (2) some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 677-73 (Tex.Crim.App.1993); Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Thus, there must be some evidence that would negate the element raising the lesser included offense to the greater charged offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985).

Because mere possession of a controlled substance is a lesser included offense of possession with the intent to deliver, the first prong of the test is satisfied. See Upchurch, 23 S.W.3d at 538. The next issue is whether the record contains any evidence that would permit a rational jury to find that appellant guilty only of possession and not of intent to deliver. See Rousseau, 855 S.W.2d at 673. In other words, we must determine whether there is evidence that would negate the jury’s finding of an intent to deliver the cocaine. See Aguilar, 682 S.W.2d at 558. We have found no evidence in the record that could undermine this finding. Therefore, the court below did not err in refusing to instruct the jury on the lesser included offense of possession.

We overrule appellant’s seventh point of error.

Conclusion

We affirm the judgment of the trial court.

Notes

1

. Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).

2

. This rule serves to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs; it restates the сommon-sense notion that even if a person jointly possesses property, such as a house or car, he may not necessarily jointly possess contraband found in that house or car. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005).

3

. See Poindexter, 153 S.W.3d at 409-413, 411 n. 28 (analyzing factors one, two, three and six); Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App.1984) (analyzing factors one, two, Eve, seven, and nine); Moulden v. State, 576 S.W.2d 817, 818, 820 (Tex.Crim.App.1978) (analyzing factors two, seven, eight, ten, and thirteen); Duff v. State, 546 S.W.2d 283, 287 (Tex.Crim.App.1977) (analyzing factors one, four, six, seven, and eleven); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (analyzing factors one through thirteen).

4

. Proving that appellant "exercised care, custody, and management” over the cocaine to sustain appellant’s conviction is not necessary. Under the Texas Health and Safety Code, the State need only prove that appellant exercised "care, custody, control, or management" of the cocaine to convict him as a principal. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp.2004-2005) (emphasis added). Therefore, only one of the four alternatives must be proven to convict appellant as a principal. See id.

5

. According to Calaway’s testimony, the two kilos seized here, bought in Houston for an estimated $35,000, had ‍​‌​‌‌​​‌​​‌‌​​‌​‌​​​​​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌​​​​​‌​‍a purity of 70% and 73%, respectively. From this level of purity, the two kilos could be "cut” at least six times — i.e., multiplied into at least 12 kilos, diluting its purity each time — and then sold by the gram on the street for about $90 per gram. Twelve kilos of cocaine is the equivalent of 12,000 grams.

6

. "Grammed out” means to sell it by the gram.

7

. See Tex. Pen.Code Ann. § 1.07(17)(A) (Vernon Supp.2004-2005) (" 'Deadly weapon’ means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury....”).

Case Details

Case Name: Robinson v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 28, 2005

Citation: 174 S.W.3d 320

Docket Number: 01-04-00591-CR

Court Abbreviation: Tex. App.