Tracy James Robinson v. State

Opinion issued July 28, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00591-CR

TRACY JAMES ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 12744

O P I N I O N

A jury convicted appellant, Tracy James Robinson, of unlawful possession of

cocaine weighing 400 grams or more with the intent to deliver.

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.

We affirm.

Facts On January 17, 2003, appellant and Jontue 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 a 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 factory 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 offense 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 as to suggest that the accused had knowledge of the

contraband and exercised control over it.

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 place 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.

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

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 space; (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

between 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, which 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 into 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.

Appellant stated that he had been in Houston for two days with his cousin and Hosey.

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 real

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 effective

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.

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 to 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 amount 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 semi-automatic 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 loaded 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. Clewis 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 verdict 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 important

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 evaluation 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

paraphernalia.” 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.] 1993, pet.

ref’d). An oral expression of intent is not required. “Intent can be inferred from the

acts, words, and conduct of the accused.” Patrick v. State , 906 S.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). Calaway testified at trial that “[a]nybody 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. Viewing 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.

However, there is no

evidence in the record to support an inference that appellant was ignorant of the drug

trade and that the cocaine could 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 proof 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.

The jury did not find that appellant exhibited a firearm. Accordingly, we will

limit our discussion to the term “use,” which requires 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 111 .

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.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Publish. Tex. R. App. P. 47.2 (b) .