Affirmed and Memorandum Opinion filed July 25, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00365-CR

                      DANIEL EARL CULP, Appellant,
                                       V.

                      THE STATE OF TEXAS, Appellee.

                    On Appeal from the 10th District Court
                             Galveston County
                      Trial Court Cause No. 11CR2157

                 MEMORANDUM                     OPINION


      A jury convicted appellant Daniel Earl Culp of possession with intent to
deliver cocaine. Culp appeals, arguing (1) the evidence is insufficient to support
his conviction and (2) he received ineffective assistance of counsel at trial. We
affirm.
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       On July 26, 2011, Officer Shawn Lozica of the Galveston County Sheriff’s
Department obtained a combination search-and-arrest warrant, which authorized
the arrest of Culp and the search of the mobile home located at 4210 Darby Street
in Bacliff. The warrant also authorized the seizure of “cocaine, and any and all
implements, materials, paraphernalia, supplies, monies, lists, and other items that
relate to and not limited to violations” of the Texas Controlled Substances Act. See
Tex. Health & Safety Code ch. 481. Lozica and several other officers executed the
warrant the following day.

       At trial, Lozica explained that because it was a no-knock search warrant, he
broke in the front door of the mobile home without knocking and announcing
himself. The officers then entered through the front door into the kitchen, where
they found Culp. Melissa Espitia, her and Culp’s young daughter, and another
adult were in the living room, which was separated from the kitchen by a floor-to-
ceiling partition. Several officers escorted the occupants out of the mobile home
and searched them. Culp had $510 in cash on his person and was the only one
carrying a large amount of cash.

       Once the occupants were secured, Lozica and his fellow officers searched
the inside of the home. They quickly found a lease for 4210 Darby Street in Culp’s
and Espitia’s names on top of a desk in the kitchen. In one of the desk drawers, the
officers found 10.2 grams of cocaine,1 a digital scale, and a razor blade. Some of
the cocaine had been cut into small chunks that weighed approximately .2 ounces
each. Based on his training and experience as an undercover officer, Lozica


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         This weight included packaging. The forensic scientist who later received the narcotics
at the Texas Department of Public Safety Crime Lab confirmed that the substance was cocaine
and determined that it weighed 6.01 grams without packaging.

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testified that .2-ounce chunks are typically sold for personal use and cost about $20
each. Because of the amount of cocaine he found, the way some of it had already
been cut up into smaller pieces, the scale, and the razor blade, Lozica concluded
that the narcotics were for distribution rather than for personal use.

      After the State’s case-in-chief, Culp testified on his own behalf and denied
that the cocaine belonged to him. He claimed that the desk was Espitia’s, that the
cash he was carrying at the time of his arrest was his and Espitia’s rent money, and
that he had earned his portion of that money doing tattoo work and other odd jobs.
He also testified that he had moved out of the mobile home several weeks before
his arrest because he and Espitia were having relationship problems. He explainted
that, during that time, he lived with a friend in Dickinson, but he still did tattoo
work out of the mobile home, kept clothes and other personal items there, and
continued to contribute to the rent. He also acknowledged that he spent two to
three nights per week there.

      The jury convicted Culp of possession with the intent to deliver a controlled
substance—namely, cocaine—in an amount no less than four grams and no more
than two hundred grams. The trial court assessed his punishment at seven years’
imprisonment in the Texas Department of Criminal Justice, Institutional Division.
This appeal followed.

                                          II

      In his first issue, Culp argues the evidence is legally insufficient to prove,
beyond a reasonable doubt, that he knowingly possessed the cocaine, emphasizing
the fact that mere presence at the location where the drugs are found is insufficient
to prove possession.

      In a legal-sufficiency review, we consider all of the evidence in the light


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most favorable to the verdict to determine whether a rational finder of fact could
have found the essential elements of the charged offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Temple v. State, 390
S.W.3d 341, 360 (Tex. Crim. App. 2013). The jury is the sole judge of the
credibility and weight to be attached to the testimony of witnesses. Jackson, 443
U.S. at 319; Temple, 390 S.W.3d at 360. We permit juries to draw multiple
reasonable inferences from facts as long as each is supported by the evidence
presented at trial. Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. When the
record supports conflicting inferences, we presume that the jury resolved the
conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S.
at 326; Temple, 390 S.W.3d at 360.

      “Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In
circumstantial-evidence cases, it is not necessary that every fact and circumstance
point directly and independently to the defendant’s guilt. Temple, 390 S.W.3d at
359. “[I]t is enough if the conclusion is warranted by the combined and cumulative
force of all the incriminating circumstances.” Johnson v. State, 871 S.W.2d 183,
186 (Tex. Crim. App. 1993).

      To obtain a conviction for unlawful possession of a controlled substance, the
State must prove that the defendant (1) exercised care, custody, control or
management over the contraband, and (2) knew that the substance possessed was
contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Mere
presence at the location where drugs are found is insufficient, by itself, to establish
actual care, custody, or control of those drugs. Id. at 162. In analyzing the issue, we
look to a non-exclusive list of relevant factors that may link a defendant to

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contraband so as to establish possession. See Olivarez v. State, 171 S.W.3d 283,
291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The factors that apply here
include: (1) whether the defendant was present when the search was conducted, (2)
the defendant’s proximity to and the accessibility of the narcotic, (3) whether other
contraband or drug paraphernalia were present, (4) whether the defendant owned
or had the right to possess the place where the drugs were found, (5) whether the
place where the drugs were found was enclosed, and (6) whether the defendant was
found with a large amount of cash. See id. The number of factors that link a
defendant to the narcotics is not as important as the “logical force” the factors
create to prove the defendant’s guilt. Id.; see Evans, 202 S.W.3d at 162.

      Here, a number of factors affirmatively link Culp to the narcotics. First, he
was present when the officers executed the search warrant and found the narcotics.
Second, Culp was in the same room as the desk in which the cocaine was found,
and the cocaine was easily accessible to him in the unlocked desk drawer. Third,
there was other drug paraphernalia—the digital scale and the razor—in the same
drawer as the narcotics. Fourth, Culp’s name is on the lease for the mobile home,
and although he claimed that he had moved out weeks before the narcotics were
found, he acknowledged that he continued to contribute to the rent, leave personal
items in the home, and spend a few nights a week there. Fifth, the drugs were
found in an enclosed place. Sixth, Culp had $510 in cash on his person.
Considering these factors in the light most favorable to the verdict, we conclude
that sufficient evidence was presented to allow a rational fact finder to conclude
beyond a reasonable doubt that Culp knowingly possessed the cocaine.
Accordingly, we overrule his first issue.

                                            III

      In his second issue, Culp contends that he was denied the effective

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assistance of counsel at trial because his counsel failed to request a jury instruction
“that mere possession was insufficient to find a person guilty.”

      To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the appellant
must show that counsel was so deficient as to deprive the appellant of his Sixth
Amendment right to counsel. Strickland, 466 U.S. at 687. Second, the appellant
must show that the deficient presentation was prejudicial and resulted in an unfair
trial. Id. To satisfy the first prong, the appellant must show that his counsel’s
representation was objectively unreasonable. Id. at 688; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, the appellant must
show that there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Thompson, 9
S.W.3d at 812. A reasonable probability exists if it is enough to undermine the
adversarial process and thus the outcome of the trial. See Strickland, 466 U.S. at
694; Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001).

      Our review is highly deferential and presumes that counsel’s actions fell
within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d at
63; Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective, and an allegation of
ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.
Trial court counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107,
111 (Tex. Crim. App. 2003). In the absence of a record of trial counsel’s reasons
for the challenged conduct, a court will not conclude that counsel was ineffective
unless “the conduct was so outrageous that no competent attorney would have

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engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). For
this reason, “[a] substantial risk of failure accompanies an appellant’s claim of
ineffective assistance of counsel on direct appeal.” Thompson, 9 S.W.3d at 813.

      In this direct appeal, Culp asserts that his counsel’s failure to request the
instruction “was clearly ineffective assistance of counsel.” But he offers no
explanation as to why the challenged conduct was deficient, let alone outrageous.
He similarly provides no analysis for his conclusory assertion that “[t]here is a
reasonable probability that the outcome of the case would have been different had
the jury been given an instruction that mere possession was not enough to find
guilt.” Moreover, he does not show that he would have even been entitled to such
an instruction. Culp has failed to overcome the presumption that his trial counsel’s
conduct was within the wide range of reasonable professional assistance, and we
overrule his second issue. See Mallett, 65 S.W.3d at 63.

                                       ***

      We affirm the judgment of the trial court.




                                      /s/       Jeffrey V. Brown
                                                Justice



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




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