Affirmed and Memorandum Opinion filed July 10, 2012.




                                         In The


                      Fourteenth Court of Appeals

                                  NO. 14-11-00584-CR




                      WILLIE DEWAYNE ROLAND, Appellant


                                            V.


                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 337th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1253231



                        MEMORANDUM OPINION

      Appellant Willie Dewayne Roland appeals his conviction for possession of a
controlled substance with intent to deliver, asserting (1) the evidence is insufficient to
support his conviction; (2) his trial counsel rendered ineffective assistance by failing to
object to testimony and to a jury-charge instruction; and (3) the trial court erred in
denying appellant’s request for a jury-charge instruction on possession as a lesser-
included offense. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the offense of possession of cocaine, a
controlled substance weighing more than four grams and less than 200 grams, with intent
to deliver. Appellant pleaded “not guilty” to the charged offense.

       At trial, the State presented evidence that law enforcement officers had been
conducting a month-long, undercover surveillance of a particular home after receiving
information that the occupants had been selling narcotics from the back door of the home.
Over the course of the investigation, officers observed numerous individuals arrive at the
home and exchange items with another person behind burglar bars that covered the back
door of the residence.    Uniformed officers conducted traffic stops of some of the
individuals after they left the home; the officers recovered narcotics during many of these
stops. As part of the investigation, officers set up a “controlled buy” with a confidential
informant, who purchased crack cocaine at the back of the residence.

       Officers obtained and executed a search warrant of the home. In executing the
warrant, the officers entered the home through the back door, where they observed a
security camera pointed outside the door. They entered into the kitchen, where they saw
in plain view and seized over 140 grams of prepared crack cocaine formed into large
“cookies” the size of pancakes. The officers also seized several scales of differing sizes,
a razor blade found between sliced pieces of a crack cocaine “cookie,” 287.5 grams of
marijuana divided between a larger plastic bag and a smaller plastic bag, a tray with
pieces of marijuana remaining on it, and small plastic bags. Officers also seized glass
beakers, a whisk, powder cocaine, baking soda, and a large glass bowl with crack cocaine
still in the process of drying or “settling” into a cookie of crack cocaine. Officers
characterized the amount of contraband in the kitchen to be a large amount that was too
                                            2
much for personal use only. On the kitchen counter beside the marijuana, officers found
a birth certificate and social security card belonging to appellant’s son; the birth
certificate indicated appellant was the child’s father.

       In an adjoining living room, officers observed appellant and a woman sitting
together on a couch and facing a surveillance monitor that displayed video feed from a
security camera aimed at the back door of the home; the woman was not charged. A man
in the home attempted to flee when officers entered. The officers seized a large sum of
cash in this man’s possession and subsequently charged him. A shotgun found in the
residence belonged to the man who attempted to flee. Officers found several other
documents, including utility bills in appellant’s name and bearing the address of the
home. Officers observed that the window to the front door of the home was covered with
a large piece of wood and that a sturdier piece of wood barricaded the door.

       The jury found appellant guilty as charged. He was sentenced to twenty years’
confinement. Appellant now appeals his conviction.

                                   ISSUES AND ANALYSIS

Is the evidence sufficient to support appellant’s conviction?

       In his first issue, appellant asserts the evidence is legally insufficient for the jury
rationally to have found him guilty beyond a reasonable doubt of each element of the
offense of possession with intent to deliver a controlled substance. Appellant also asserts
the evidence is legally insufficient to support his conviction under the law of parties.
Alternatively, appellant asks this court to apply a factual-sufficiency analysis and to
determine that the evidence is factually insufficient to support his conviction.

       In evaluating a legal-sufficiency challenge, we view the evidence in the light most
favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
The issue on appeal is not whether we, as a court, believe the State’s evidence or believe
that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d

                                              3
137, 143 (Tex. Crim. App. 1984).        The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819
S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of
fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

       A majority of the judges of the Court of Criminal Appeals have determined that
“the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)
(Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 912–15 (Cochran, J.,
concurring, joined by Womack, J.) (same conclusion as plurality). Therefore, we will
review the evidence under the Jackson v. Virginia standard as articulated in the preceding
paragraph.

       A person commits the offense if that person knowingly possesses with intent to
deliver a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a) (West
2010). Cocaine is a controlled substance. See Tex. Health & Safety Code Ann. §
481.112(d). “Possession” means “actual care, custody, control, or management.” Tex.
Health & Safety Code Ann. § 481.002(38). To prove unlawful possession of a controlled
substance, the State must establish that the accused (1) exercised care, control or
management over the contraband, and (2) knew the substance was contraband.

                                             4
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Evidence of knowing
possession may be established through direct or circumstantial evidence, so long as the
evidence establishes that an accused’s connection with the substance was more than
fortuitous. Id. at 405–06. Evidence must link the accused to the offense so that one
reasonably may infer that the accused knew of the contraband’s existence and exercised
control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d).

       Appellant claims that he was not in exclusive possession of the home, and the
State did not prove that his connection, if any, to the contraband was more than
fortuitous. The State is not required to show exclusive possession of an illegal substance
because more than one person can jointly exercise care, custody, control, or management
over a controlled substance. See Hargrove v. State, 211 S.W.3d 379, 385 (Tex. App.—
San Antonio 2006, pet. ref’d). When, as in this case, contraband is recovered from a
place other than the accused’s person or a place over which the accused did not have
exclusive possession, the State must prove the accused’s knowledge and control over the
contraband by demonstrating a link between appellant and the contraband. See Utomi v.
State, 243 S.W.3d 75, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Courts have
identified a non-exhaustive list of factors that may help show an accused is linked to a
controlled substance, including(1) the accused’s presence when a search is conducted, (2)
whether contraband was in plain view, (3) the accused’s proximity to and the
accessibility of the narcotic, (4) whether the accused was under the influence of narcotics
at the time of the arrest, (5) whether other contraband or narcotics were found in the
accused’s possession, (6) any incriminating statements the accused made when arrested,
(7) whether the accused made furtive gestures or attempted to flee, (8) any odor
associated with the contraband, (9) the presence of other contraband or paraphernalia,
(10) the accused’s ownership or right to possess the place where contraband was found,
(11) whether the place where the contraband was found was enclosed, (12) whether the
accused was found with a large amount of cash, and (13) whether the conduct of the
                                            5
accused indicated consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12
(Tex. Crim. App. 2006) (discussing “affirmative links,” which is legal jargon for the
large variety of circumstantial evidence that may establish a knowing possession of
contraband); Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.]
2010,pet. ref’d) (“[P]resence or proximity combined with other direct or circumstantial
evidence (e.g. ‘links’) may be sufficient to establish the elements of possession beyond a
reasonable doubt.”).    We also have considered the presence of a large quantity of
contraband as a factor for linking appellant to the contraband. See Olivarez v. State, 171
S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The number of
factors present is not as important as the logical force the factors create to prove the
accused knowingly possessed the controlled substance. Roberson v. State, 80 S.W.3d
730, 735 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

       The record reflects that following his arrest, appellant first admitted in a pretrial
interview that he had lived in the home for the last year and resided there with his
girlfriend and his son; later in the same interview appellant claimed to have lived alone in
the home. At the home, officers found utility bills addressed to appellant and dated one
month before the search; these documents allow a reasonable inference that appellant was
linked to the home and exercised control over the home where the contraband was found.
See Evans, 202 S.W.2d at 163–65 (providing that affirmative link existed between an
accused and cocaine based in part on the presence of mail addressed to the accused, dated
one month before, and at the address where the narcotics were discovered).             This
conclusion is bolstered by an officer’s testimony that the home had a barricaded front
door and a video surveillance system, which, based on the officer’s experience, are
indicative of narcotics activity. Officers testified that upon entry into the home, they
observed appellant in the living room facing a video monitor that showed live footage
from the camera directed at the back door of the home, allowing him to monitor those
arriving at the door.   A jury rationally could have concluded that these conditions
indicated a consciousness of guilt, an additional link.        The jury also could have
                                             6
considered this evidence in concluding appellant knew about the contraband in the home
and exercised care, control, custody, or management over it.         See id. at 162 n.12;
Poindexter, 153 S.W.3d at 405.

       In addition to the evidence of appellant’s control over the premises, other facts and
circumstances affirmatively link appellant to the narcotics found in the home. It is
undisputed that appellant was present in the home when the officers executed the search
warrant. Officers found appellant sitting in a living room that is adjacent to the kitchen,
where the contraband was found in plain view.          See Olivarez, 171 S.W.3d at 291
(concluding affirmative link established in part based on evidence that marijuana was
scattered throughout the house in plain view). Appellant claims that he was not in the
same room with the narcotics during the search and that the narcotics in the kitchen were
not easily accessible to him, nor could they have been seen by him, in the living room.
But, according to an officer’s testimony, although the living room and the kitchen were
separated by a wall, the living room was a short distance to the kitchen; thus, a rational
jury could have concluded that appellant had access to and was in close proximity with
the contraband in the kitchen. See Evans, 202 S.W.3d at 166. On the kitchen counter
beside the marijuana, officers also found the social security card and birth certificate
belonging to appellant’s son. The presence of these personal documents on the kitchen
counter beside the contraband support a reasonable inference that appellant had
knowledge of the contraband found in plain view in the kitchen. See Evans, 202 S.W.2d
at 163–65 (concluding evidence was sufficient to support a jury’s finding that appellant
exercised knowing possession based in part on personal mail found in the home); Cooper
v. State, 852 S.W.2d 678, 682 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). The
presence of materials for packaging and weighing narcotics found in the kitchen along
with the large quantity of contraband in plain view in the kitchen, some of it still in the
process of being manufactured, supports a reasonable inference that appellant had
knowledge of the contraband. See Olivarez, 171 S.W.3d at 291–92.


                                             7
       Appellant contends that the evidence is insufficient to establish that he exercised
care, custody, control, or management over the contraband. To support this argument,
appellant points to the following facts:        no testimony from the one-month long
surveillance investigation identified him as engaging in any of the narcotics transactions;
he carried no keys to the home; he was not under the influence nor in possession of
contraband at the time of his arrest; he made no incriminating statements; he did not flee
or make furtive gestures; and there is no testimony of the odor of narcotics near appellant
when he was arrested. But the absence of some factors that may establish an affirmative
link is not evidence of innocence to be weighed against evidence connecting appellant to
the narcotics. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976).
The jury was entitled to make a discriminating assessment of the facts and find, beyond a
reasonable doubt, that there was sufficient evidence connecting appellant to the control,
management, custody or care of the cocaine. See Evans, 202 S.W.3d at 166. The logical
force of the circumstantial evidence and the sum totality of the links is sufficient to
affirmatively link appellant to the contraband and a rational jury could have found
beyond a reasonable doubt that appellant knew about the contraband’s existence and
exercised care, control, custody, and management over the contraband. See id.

       “Deliver” means to transfer, actually or constructively, a controlled substance to
another. See Tex. Health & Safety Code Ann. § 481.002(8) (West 2010). Intent to
deliver a controlled substance can be proven through circumstantial evidence, such as the
quantity of the narcotics possessed or evidence that an accused possessed the contraband.
Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.—Dallas 2004, no pet.). “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 an experienced law
enforcement officer, as utilized in this case, may be used to establish an accused’s intent
to deliver. See Mack v. State, 859 S.W.2d 526, 529 (Tex. App.—Houston [1st Dist.]
1993, no pet.). Factors that a reviewing court may consider in determining an intent to
deliver include: (1) the nature of the location at which the accused was arrested, (2) the
                                            8
quantity of the contraband in an accused’s possession, (3) the manner of packaging of the
narcotics, (4) the presence of or lack of narcotics paraphernalia for either use or sale, (5)
large amounts of cash, and (6) the accused’s status as a narcotics user. See Moreno v.
State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

        The record contains officers’ testimony that the amount of contraband recovered
in plain view from appellant’s home during the search was a large quantity, allowing for
10,000 usable “hits,” and was associated with narcotics dealing instead of personal use.
A razor blade was found between pieces of a “cookie” as if the “cookie” were being
divided for sale. The officers testified to finding various scales in the kitchen, which are
common implements for dividing contraband into smaller and larger portions for sale.
Regarding the packaging supplies, an officer testified that the different sized bags allow
for selling smaller amounts of contraband. Based on the evidence in the record, a rational
jury could have found beyond a reasonable doubt that appellant possessed the contraband
with intent to deliver.1 See id. We overrule appellant’s first issue.

Did appellant receive ineffective assistance of counsel at trial?

        In his second issue appellant contends he received ineffective assistance of
counsel because his trial counsel failed to object to an officer’s testimony about
possession of a controlled substance, which appellant characterizes as offering an
improper legal opinion and an incorrect statement of the law. In a third issue, appellant
asserts he received ineffective assistance of counsel for his trial counsel’s failure to object
to a jury-charge instruction that appellant claims drew unwarranted attention to his failure
to testify.

        Both the United States and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE


        1
           Because we conclude the evidence supports the appellant’s conviction as a principal actor, we
need not reach appellant’s arguments that the evidence is not sufficient to support his conviction as a
party to the offense.
                                                   9
CRIM. PROC. ANN. art. 1.051 (West 2005). This right necessarily includes the right to
reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.
Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that
(1) trial counsel’s representation fell below an objective standard of reasonableness,
based on prevailing professional norms; and (2) there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 687–92. Moreover, appellant bears the burden of
proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d
954, 956 (Tex. Crim. App. 1998).

       In assessing appellant’s claims, we apply a strong presumption that trial counsel
was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We
presume counsel’s actions and decisions were reasonably professional and were
motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). When, as in this case, there is no proper evidentiary record developed at a
hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s
performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit
from trial counsel becomes almost vital to the success of an ineffective-assistance claim.
Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d). The Court of Criminal Appeals has stated that it should be a rare case in which an
appellate court finds ineffective assistance on a record that is silent as to counsel’s trial
strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a
silent record, this court can find ineffective assistance of counsel only if the challenged
conduct was “‘so outrageous that no competent attorney would have engaged in it.’”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). No motion for new trial was filed in
this case.
                                             10
                       Failure to object to the officer’s testimony

       Appellant points to Officer Castro’s testimony and asserts his trial counsel should
have objected to the following parts, which appellant characterizes as an improper legal
opinion and a misstatement of the law of affirmative links:

       [Prosecutor]: Based on your training and experience, can somebody be in
       possession of crack cocaine if it is in their house?
       [Witness]: Yes, ma’am.
       [Prosecutor]: And how does that work?
       [Witness]: If you’re somewhere in the house where the narcotics are in,
       then you’re obviously in possession of it because you know that it’s there
       and you’re basically in the custody of it. Especially if you have, you know,
       your paperwork there or your keys or you have your clothing there, then
       obviously you live there and you’re letting your friends come over there
       and if it’s out in the open, then, hey, you’re just as guilty of that.
       [Prosecutor]: Would you say that you try to link the person to the house
       and to the drugs?
       [Witness]: Yes, ma’am.
       [Prosecutor]: And how is it that you said you do that?
       [Witness]: Mail, pictures, sometimes light bills, lease agreements,
       pictures—I mean, anything you could possibly find. You know, clothing,
       shoes, anything you could find that you can establish that the person lives
       there and you know that they have some kind of connection to that location.
       Nothing in this record evinces trial counsel’s reason for not objecting to the
testimony; we therefore presume reasonable sound trial strategy induced his silence. See
Thompson, 9 S.W.3d at 813.        Whether to object is a matter of trial strategy.      See
Henderson v. State, 704 S.W.2d 536, 538 (Tex. App.—Houston [14th Dist.] 1986, pet.
ref’d). Although the record contains no express explanation for trial counsel’s decision, a
possible defensive strategy becomes apparent upon an examination of the record in that
trial counsel vigorously disputed on cross-examination the affirmative links as applied to
appellant. Perhaps trial counsel believed that attacking the particular affirmative links in
the case on cross examination was more effective than objecting to the officer’s

                                            11
testimony that included hypothetical affirmative links like pictures, clothing or lease
agreements, which were not applicable to this case. Given the presumption of competent
representation and the deference to trial strategy, the record does not support a finding of
ineffective assistance. See Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002).
We overrule appellant’s second issue.

 Failure to object to jury instruction that drew attention to appellant’s failure to testify

         Appellant also asserts his trial counsel should have objected to the following jury-
charge instruction:

         You are instructed that certain evidence was admitted before you in regard
         to the defendant’s having been charged and convicted of an offense or
         offenses other than the one for which he is now on trial. Such evidence
         cannot be considered by you against the defendant as any evidence of guilt
         in this case. Said evidence was admitted before you for the purpose of
         aiding you, in passing upon the weight you will give his testimony, and you
         will not consider the same for any other purpose.
According to appellant, the instruction drew unnecessary attention to the fact that he did
not testify, amounting to a comment on his failure to testify in violation of his
constitutional right against self-incrimination and not supported by the evidence.

         In considering whether the instruction amounted to an impermissible comment on
appellant’s failure to testify, we consider whether the language used was manifestly
intended or was of such a character that the jury naturally and necessarily would have
considered it to be a comment on the failure of appellant to testify. See Wead v. State,
129 S.W.3d 126, 130 (Tex. Crim. App. 2004). It is not sufficient that the instruction
might be construed as an implied or indirect allusion to the defendant’s failure to testify.
See id. To violate the defendant’s right against self-incrimination, the implication from
the comment, when viewed from the jury’s standpoint, must be clear that it referred to the
defendant’s failure to testify. Bustamonte v. State, 48 S.W.3d 761, 764 (Tex. Crim. App.
2001).


                                              12
       The comment in question does not necessarily or clearly refer to appellant’s failure
to testify. See id. Because the instruction is not a comment on appellant’s failure to
testify, any objection would have been frivolous.          We could hardly find counsel
ineffective for failing to make a frivolous objection. In any event, on the silent record
before this court, appellant has failed to rebut the strong presumption of competent
representation. See Thompson, 9 S.W.3d at 813.

       Moreover, appellant cannot show that there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s allegedly
deficient performance. Strickland, 466 U.S. at 688–92. As reflected in the record, the
instructions in the jury charge that immediately precede the instruction in question state
as follows:

       Our law provides that a defendant may testify in [sic] his own behalf if he
       elects to do so. This, however, is a right accorded a defendant, and in the
       event he elects not to testify, that fact cannot be taken as a circumstance
       against him.
       In this case, the defendant has elected not to testify and you are instructed
       that you cannot and must not refer to or allude to that fact throughout your
       deliberations or take into consideration for any purpose whatsoever as a
       circumstance against him.
Given this instruction, appellant has not shown that he was prejudiced. See id. We
overrule appellant’s third issue.

Did the trial court err in denying appellant’s request for a jury-charge instruction
on possession as a lesser-included offense?
       In his fourth issue, appellant asserts the trial court erred in denying his request for
a jury-charge instruction on possession as a lesser-included offense. We review the trial
court’s decision regarding a lesser-included instruction under an abuse-of-discretion
standard. Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d).




                                             13
       To warrant a jury instruction on a lesser offense in the jury charge, a defendant
must demonstrate that (1) the elements of the lesser offense are contained within the
proof necessary to establish the charged offense as pleaded in the State’s indictment, and
(2) the record contains some evidence by which a jury rationally could conclude that if
the defendant is guilty, the defendant is guilty of only the lesser offense and not the
greater offense.    See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007)
(applying “pleadings approach” as sole test for determining the first step in whether a
party is entitled to a lesser-offense instruction).

       In this case, the first prong is satisfied. “The only difference between possession
and possession with intent to deliver is the element of intent to deliver.” Pickens v. State,
165 S.W.3d 675, 679 (Tex. Crim. App. 2005). The facts required to prove the lesser-
included offense of possession are the same or less than all the facts required to establish
the charged offense of possession with intent to deliver. See id.

       We next consider whether there is some evidence that appellant is not guilty of
possession with intent to deliver, but guilty of only possession. See Hall, 225 S.W.3d at
536. Evidence from any source may raise such a defensive issue. Mendoza v. State, 88
S.W.3d 236, 239 (Tex. Crim. App. 2002). It is not enough that the jury disbelieves
crucial evidence pertaining to the greater offense; there must be some evidence directly
germane to the lesser offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted. See Hampton v. State, 109 S.W.3d 437, 441 (Tex.
Crim. App. 2003).

       The record contains testimony that the large quantity of the narcotics, which was
enough to produce 10,000 usable “hits” of the narcotic, the scales, materials to
manufacture the contraband, packaging materials, the razor blade found between pieces
of a “cookie,” the fortified exterior door, and the video surveillance system all suggested
narcotics trafficking and not personal consumption. There is no evidence in the record
suggesting that appellant possessed the contraband for personal use. See Valencia v.

                                               14
State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Appellant
does not rely on any evidence that affirmatively rebuts or negates his intent to deliver the
contraband; rather, appellant relies on the jury disbelieving the evidence of intent to
deliver, claiming that the evidence was subject to “different interpretations.” This is not
sufficient to satisfy the second prong. See id.; see Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997). The credibility of the evidence and whether it conflicts with
other evidence is not a consideration when determining whether the charge on a lesser-
included offense should be given. See Saunders v. State, 840 S.W.2d 390, 391 (Tex.
Crim. App. 1992).        Once the jurors chose to believe that appellant possessed the
contraband, there is no rational basis in the record for the jurors to have believed that
appellant possessed it for any reason other than sale. See Valencia, 51 S.W.3d at 424.
Because the record contains no evidence that would have permitted a rational factfinder
to conclude that appellant was guilty of only possession, the trial court did not abuse its
discretion in denying appellant’s requested charge on possession as a lesser-included
offense. See id. We overrule appellant’s fourth issue.

       The trial court’s judgment is affirmed.




                                               /s/     Kem Thompson Frost
                                                       Justice



Panel consists of Justices Frost, McCally, and Mirabal.*
Do Not Publish — TEX. R. APP. P. 47.2(b).




*
Senior Justice Margaret Garner Mirabal sitting by assignment.
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