Affirmed and Memorandum Opinion filed January 12, 2012.




                                             In The

                        Fourteenth Court of Appeals

                                  NO. 14-10-01043-CR

                  TERRENCE RHODETRIC PHILLIPS, Appellant

                                              V.

                          THE STATE OF TEXAS, Appellee

                        On Appeal from the 174th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1216069



                         MEMORANDUM OPINION

       Appellant Terrence Rhodetric Phillips appeals his conviction for possession of a
controlled substance.    He challenges the sufficiency of the evidence to support his
conviction, complains of evidentiary rulings, and asserts that he received ineffective
assistance of counsel at trial. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the felony offense of possession of a
controlled substance, namely cocaine, weighing more than four grams and less than two
hundred grams.     The indictment also contained an allegation that appellant used or
exhibited a deadly weapon, a firearm, during the commission of and immediate flight
from the charged offense.      The indictment contained two enhancement paragraphs.
Appellant pleaded ―not guilty‖ to the charged offense and ―true‖ to the two enhancement
paragraphs.

       At trial, an officer with the narcotics division of the police department testified
that he had received information from a known, credible, and reliable informant that
appellant was selling crack cocaine from a specific apartment, unit 4, in an apartment
complex located in a high-crime area. The officer believed that appellant lived in unit 4
with a woman, and the officer had observed appellant entering or exiting that unit twice.
With this information, the officer organized a ―controlled buy‖ at the apartment, in which
the officer sent the informant to the apartment to purchase narcotics so that the officer
could verify the information he had received. During this transaction, the informant
entered unit 4 with ―city money,‖ purchased narcotics with the money, and returned to
the awaiting officer with a substance that later tested positive for crack cocaine.
Afterwards, the informant described the individual from whom he purchased the
narcotics during the transaction; the description matched appellant‘s appearance. The
officer included the description, as relayed to him by the informant, in a probable-cause
affidavit, and then obtained a search warrant for the apartment.

       The following day, before executing the search warrant at unit 4, officers waited at
a nearby fire station until they saw appellant exit the apartment. According to one
officer, appellant posed a threat to officers, and the officers did not want to execute the
warrant until after appellant had exited the apartment. Officers approached appellant and
detained him at a nearby store. Other officers then went to the apartment.

       When they arrived at the apartment, a woman opened the door and allowed the
officers to enter. Officers believed that the woman was appellant‘s girlfriend. The
officers explained that they were looking for narcotics, and the woman directed the
officers to a closet inside the apartment‘s master bedroom. The closet contained men‘s

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and women‘s clothing. The men‘s clothing was sized extra, extra large and would have
fit appellant‘s build.

       Inside the closet, officers located what appeared to be two ―cookies‖ of crack
cocaine and eight bags containing what appeared to be marijuana. Officers found two
loaded firearms in the bedroom under a mattress. Also inside the bedroom, officers
found a receipt for a money order, dated the previous month, bearing appellant‘s name,
but reflecting appellant‘s address as that of a neighboring apartment. Officers also found
letters written by appellant to the woman who answered the door. In the letters, which
appellant penned from county jail, appellant expressed a desire to have children with the
woman.      These letters reflected the woman‘s address as that of the neighboring
apartment. Officers arrested the woman in connection with the investigation.

       The record reflects that the substances found in the closet later tested positive for
cocaine; one piece of cocaine weighed approximately 38.3 grams, and the other one
weighed 2.4 grams. Other tests confirmed that the substance found in the bags to be
marijuana totaling 3.3 ounces. According to one officer‘s trial testimony, forty grams of
cocaine is worth about $1000 and is not considered an amount intended for personal use.
Another officer testified that a ―cookie‖ of crack cocaine could be cut into smaller pieces
and sold for roughly $20 per piece. This officer opined that, based on the packaging, the
marijuana was intended for sale and distribution, and not for personal use.

       The jury found appellant guilty as charged. The jury determined in a special issue
that appellant did not use or exhibit a deadly weapon. After finding the enhancements to
be true, the trial court sentenced appellant to thirty-five years‘ confinement. Appellant
now challenges his conviction, raising three issues on appeal.

                            SUFFICIENCY OF THE EVIDENCE

       In his first issue, appellant claims the evidence is insufficient to support his
conviction. In evaluating a 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).
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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
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 person commits the second-degree felony offense of possession of a controlled
substance if that person knowingly or intentionally possesses a controlled substance listed
in Penalty Group 1, and the substance was not prescribed by a practitioner, and when it
weighs more than four grams and less than two hundred grams. See Tex. Health &
Safety Code Ann. § 481.115(a), (d) (West 2010). Cocaine is considered a controlled
substance listed in Penalty Group 1. Id. § 481.102(3)(D) (West 2010).

      ―Possession‖ is defined as ―actual care, custody, control, or management.‖ TEX.
PENAL CODE ANN. § 1.07(a)(39) (West 2011); TEX. HEALTH & SAFETY CODE ANN. §
481.002(38) (West 2010). To prove unlawful possession of a controlled substance, the
State must establish that (1) the accused exercised care, control, or management over the
contraband, and (2) knew the substance was contraband. Poindexter v. State, 153 S.W.3d
402, 405 (Tex. Crim. App. 2005). The elements of possession may be proven through
direct or circumstantial evidence, although the evidence must establish that the accused‘s
connection with the substance was more than fortuitous. Id. at 405–06. Evidence must

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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). Courts have identified a non-
exhaustive list of factors that may help to show an accused‘s affirmative links to a
controlled substance, including (1) the accused‘s presence when a search is conducted,
(2) the contraband is in plain view, (3) the accused‘s proximity to and accessibility of the
narcotics, (4) the accused was under the influence of narcotics when arrested, (5) other
contraband or narcotics were found in the accused‘s possession, (6) any incriminating
statements the accused made when arrested, (7) furtive gestures or attempts to flee by the
accused, (8) any odor of contraband, (9) the presence of other contraband or
paraphernalia, (10) the accused‘s ownership or right to possess the place where the
narcotics were found, (11) whether the place where the narcotics were found was
enclosed, (12) whether the accused was found with a large amount of cash, and (13)
whether the accused‘s conduct indicated a consciousness of guilt. Evans v. State, 202
S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).            Additionally, a large quantity of
contraband may be a factor affirmatively linking appellant to the contraband.           See
Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
No set formula necessitates a finding of an affirmative link sufficient to support an
inference of knowing possession; affirmative links are established by the totality of the
circumstances. See Hyett, 58 S.W.3d at 830. The number of factors present is not as
important as the logical force the factors created to prove the accused knowingly
possessed the controlled substance.       Robertson v. State, 80 S.W.3d 730, 735 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref‘d). In the case under review, we focus on
factors three, five, and ten, among others, as establishing affirmative links between
appellant and the controlled substance.

       Appellant first asserts there is no evidence that the informant procured cocaine
from appellant during the controlled buy because the officer who organized the controlled
buy had no information about the occupants inside the apartment. Contrary to appellant‘s
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assertion, the record reflects that, after conducting the controlled buy, the confidential
informant, whom officers believed was credible and reliable, (1) identified appellant as
the person who sold him the narcotics from unit 4 one day before appellant‘s arrest and
(2) provided a description of appellant to the officer. See Cooper v. State, 852 S.W.2d
678, 682 (Tex. App.—Houston [14th Dist.] 1993, pet. ref‘d) (considering ―the most
telling evidence‖ of affirmative link between accused and narcotics was an informant‘s
tip that he purchased narcotics from the accused at a particular address two days before
the accused‘s arrest at the same location). According to the officer‘s testimony, the
informant‘s description matched appellant‘s appearance, a fact the officer knew firsthand
from observing appellant enter and exit the apartment twice before. The officer stated
that he included this description in a probable-cause affidavit, which the officer used to
procure the search warrant for the apartment.        The informant told officers that he
purchased narcotics from appellant at unit 4; the informant‘s tip was corroborated when
officers discovered the narcotics inside that apartment. See id.

       Appellant argues that the record contains very little evidence connecting him to
the apartment. Specifically, appellant contends he had no control over the apartment, was
not listed on the lease, and was not connected with the men‘s clothing found in the closet.
The record reflects that the woman who opened the door for the officers admitted to them
that she was a tenant in unit 4; no evidence suggests that appellant was listed as a tenant
on a lease for that apartment.     An officer testified that people with felony records
generally cannot lease apartments, and these people commonly will live with a
―significant other.‖ According to the officer, this scenario is common at the particular
apartment complex where unit 4 is located. Officers also testified that it is common for
people to sell narcotics from the home of a boyfriend or girlfriend and to change
residences frequently to avoid apprehension by law enforcement officers.          Officers
observed appellant at unit 4 several times, including sightings on two consecutive days:
the day of the controlled buy and the next day, when officers arrested appellant. See
Cooper, 852 S.W.2d at 681 (considering as one fact among others to support an
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affirmative link of possession that an accused lived in a home based on the fact that
officers had observed the accused entering and exiting the home on four consecutive days
that officers conducted surveillance of the home). In the closet where they found the
narcotics, officers saw men‘s clothing consistent with appellant‘s large size and build.
See Evans, 202 S.W.3d at 164, 165 (noting a reasonable factfinder could have found, in
part, that because men‘s clothing was found in the home with narcotics, affirmative link
established an accused‘s possession of narcotics); Cooper, 852 S.W.2d at 681. Even
though the clothing was not independently established as belonging to appellant, there
was no other evidence that any other adult male might have lived or stayed in unit 4. See
Evans, 202 S.W.3d at 164 n.21. Consequently, a reasonable inference exists that the
large men‘s clothing belonged to appellant and that he lived in unit 4. See id. at 165.
Inside the master bedroom of the apartment, officers also found a money-order receipt
bearing appellant‘s name. See id. at 163, 165 (providing that affirmative link existed
between an accused and cocaine based in part on the fact that the accused had mail, dated
one month before, at the address where the narcotics were discovered). Even though he
was not listed on the lease as a tenant, the fact that men‘s clothing in appellant‘s size,
along with personal documents bearing appellant‘s name, were found inside the master
bedroom, raised a reasonable inference that appellant lived and stayed in unit 4 with his
girlfriend. See id. at 163–65 (concluding that evidence was sufficient to support a jury‘s
finding that appellant exercised knowing possession of narcotics, in part because of
affirmative link that of men‘s clothing and personal mail located where contraband was
found).

      Appellant claims the record contains no evidence indicating that he was in
possession of the narcotics and that his mere presence at the apartment was not enough to
link appellant to the contraband. Appellant notes that nothing about the packaging of the
narcotics linked him to them, and there were no fingerprints or accomplice testimony
connecting him to the contraband. The most telling evidence linking appellant to the
narcotics was the confidential informant‘s tip that appellant sold narcotics from unit 4.
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This evidence was later corroborated by the officers‘ discovery of narcotics and men‘s
large-size clothing found in the same closet. See id. To the extent appellant suggests that
the contraband belonged to the woman who lived in the apartment, control over
contraband need not be exclusive, but can be jointly exercised by more than one person.
See Poindexter, 153 S.W.3d at 412. The presence of appellant‘s personal items and
documents inside the master bedroom and closet raised a reasonable inference that
appellant had actual care, control, custody, and management over the items found in the
closet of the master bedroom. See Evans, 202 S.W.3d at 163 (concluding that evidence
was sufficient to support a jury‘s finding that appellant exercised knowing possession);
Cooper, 852 S.W.2d at 682.

       The logical force of the circumstantial evidence and the sum totality of the links is
sufficient for a rational jury to have affirmatively linked appellant to the contraband and
found beyond a reasonable doubt that appellant knew about the contraband‘s existence
and exercised care, control, custody, and management over the contraband. See Evans,
202 S.W.3d at 166; Cooper, 852 S.W.2d at 682. We conclude the evidence is sufficient
to support the jury‘s verdict. We overrule appellant‘s first issue.

                       CHALLENGES TO ADMISSION OF EVIDENCE

       In his second issue, appellant complains of the trial court‘s admission into
evidence of an officer‘s testimony that implied appellant had a prior felony record, as
reflected in the following exchange:

       [PROSECUTOR]: Officer, in your experience as a narcotics officer
       conducting narcotics arrests, is it uncommon for a man to deal drugs out of
       his girlfriend‘s apartment?
       [TRIAL COUNSEL]: Objection to speculation and relevance.
       [TRIAL JUDGE]: Overruled.
       [WITNESS]: No, it‘s not uncommon.
       [PROSECUTOR]: Why do people do that?
              [TRIAL COUNSEL]: Objection, speculation.
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              [TRIAL JUDGE]: Overruled.
              [TRIAL COUNSEL]: May I be heard, Your Honor?
              [TRIAL JUDGE]: No.
       [WITNESS]: I‘ve found out in the past individuals that may have felony
       records that cannot obtain an apartment—
              [TRIAL COUNSEL]: Objection to speculation.
              [PROSECUTOR]: Your Honor, this witness testified to his—
              [TRIAL JUDGE]: Overruled.
       [WITNESS]: —they cannot acquire an apartment and must find housing
       somewhere and usually they find it with their girlfriend or boyfriend.
On appeal, appellant complains that the officer‘s testimony was ―nonresponsive‖ and
contends that the testimony was a prejudicial disclosure of extraneous-offense evidence,
which is inadmissible under Texas Rule of Evidence 404(b). Thus, as a threshold issue
we consider whether appellant has preserved these complaints for appellate review.

       Although in the trial court appellant initially objected to relevance when the
prosecutor posed the first question, appellant did not further pursue that objection, and
instead objected only that the question called for speculation. Consequently, the trial
court was not put on notice of the complaint that the evidence constituted improper
character or extraneous-offense evidence. See Tex. R. App. P. 33.1. Moreover, the
officer was generally describing conduct of narcotics dealers; he did not specifically refer
to appellant‘s extraneous-offense evidence. The record does not reflect that appellant
voiced any objection on Rule 404(b) grounds. A relevancy objection does not preserve
error under Rule 404 with respect to extraneous-offense evidence. See Medina v. State, 7
S.W.3d 633, 643 (Tex. Crim. App. 1999). Likewise, an objection to speculative evidence
does not preserve error for a complaint of the admission of extraneous-offense evidence
under Rule 404(b). See Phelps v. State, 999 S.W.3d 512, 519 (Tex. App.—Eastland
1999, pet. ref‘d). An appellate contention must comport with the specific objection made
at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection
based on one legal theory at trial may not be used to support a complaint based on a
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different legal theory on appeal. See Brozton v. State, 909 S.W.2d 912, 918 (Tex. Crim.
App. 1995). Because appellant failed to voice his complaint regarding prejudicial and
nonresponsive testimony pertaining to extraneous-offense evidence, he failed to preserve
error and has thus waived that complaint. We overrule appellant‘s second issue.

                    INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS

       In his third issue, appellant asserts that he received ineffective assistance of
counsel because his trial counsel failed to preserve error as to the officer‘s
―nonresponsive‖ testimony, as presented in appellant‘s second issue.

       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 Crim.
Proc. 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 688–92. 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 ineffective-assistance complaint, 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
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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, 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)).

       On appeal, appellant asserts his trial counsel should have lodged ―proper‖
objections at the ―right‖ time to the officer‘s testimony that made reference to appellant‘s
prior felony convictions. Appellant argues that had counsel made a timely request for an
instruction to disregard the evidence, or obtained some other limiting instruction from the
court, these measures would have cured the error.

       There was no motion for new trial filed in this case. The record is silent as to trial
counsel‘s strategy. In the face of a silent record, we apply a strong presumption that trial
counsel was competent. See Thompson, 9 S.W.3d at 813. Even if we were to presume,
without deciding, that appellant‘s trial counsel lodged incorrect objections as the result of
deficient representation, appellant has failed to show that the outcome of trial would have
been different, especially given that the officer did not actually testify that appellant was
a convicted felon who was unable to lease an apartment. See Strickland, 466 U.S. at 688,
104 S. Ct. at 2065. Instead, the officer proffered a possible rationale for why a person
might be living in an apartment without being listed as a tenant on a lease; the officer did
not attribute those particular circumstances to appellant‘s living situation. We conclude
appellant has failed to establish ineffective assistance of counsel. Appellant‘s third issue
is overruled.

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      The trial court‘s judgment is affirmed.




                                         /s/     Kem Thompson Frost
                                                 Justice



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




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