                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00172-CR


                           COURTNEY LEWIS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 211th District Court
                                   Denton County, Texas
            Trial Court No. F-2010-2015-D, Honorable L. Dee Shipman, Presiding

                                     March 6, 2014

                            MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant Courtney Lewis appeals from his jury conviction of the offense of

possession of cocaine, with intent to deliver, and the resulting sentence of sixty years of

imprisonment.1 Through one issue, appellant contends the evidence was insufficient to

support his conviction. We will affirm.




       1
        TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2012); TEX. PENAL CODE
ANN. § 12.42 (West 2012).
                                       Background


       Appellant was indicted for “intentionally or knowingly possessing with the intent to

deliver a controlled substance, to-wit: cocaine, in an amount of one gram or more, but

less than four grams.”    The indictment also contained an enhancement paragraph

alleging a prior final felony conviction. Appellant plead not guilty and the case was tried

before a jury.


       Evidence showed police executed a search warrant on a hotel room in Lewisville,

Texas. The only person in the room was appellant. A substance, later identified as

2.91 grams of crack cocaine, was located on the night stand. The packaging matched

the packaging of drugs bought from appellant by an informant two days earlier. No

weapons were found. A cell phone, some $300 cash, razor blades and a digital scale

also were present. Among the cash were two $20 bills identified as the bills police gave

the informant for the drug buy two days earlier. The cell phone number matched the

number the informant used to set up the buy with appellant. During a later interrogation

by police, appellant admitted he sold crack.


       At trial, appellant testified and admitted to possession of the cocaine. He denied

any intent to deliver, but on cross-examination acknowledged he gave cocaine to

people and was planning to share the cocaine in the room with other people.


                                         Analysis


       Through his sole issue on appeal, appellant challenges the sufficiency of the

evidence to support his conviction. He acknowledges the sufficiency of the evidence he



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possessed the cocaine, and challenges only the evidence supporting the jury’s finding

his possession was accompanied by an intent to deliver.


       When examining the sufficiency of the evidence, an appellate court views the

evidence in the light most favorable to the verdict. Poindexter v. State, 153 S.W.3d 402,

405 (Tex. Crim App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.

2781, 61 L.E.2d 560 (1979)). See also Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010).       The evidentiary sufficiency standard "gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts."

Jackson, 443 U.S. at 319. If a rational trier of fact could find from the evidence the

essential elements of the crime beyond a reasonable doubt, the evidence is sufficient to

support the conviction. Poindexter, 153 S.W.3d at 405.


       Intent to deliver may be proved by circumstantial evidence, including evidence

surrounding its possession. Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort

Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997). The 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). The factors to be considered in determining whether a

defendant possessed contraband with an intent to deliver include the nature of the

location where the defendant was arrested, the quantity of drugs the defendant

possessed, the manner of packaging the drugs, the presence or absence of drug

paraphernalia, whether the defendant possessed a large amount of cash, and the

defendant's status as a drug user. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—

Houston [1st Dist] 2010, pet. ref'd); see also Williams v. State, 902 S.W.2d 505, 507

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(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This list of factors is not exclusive, nor

must they all be present to establish a defendant's intent to deliver. Kibble, 340 S.W.3d

at 19.


         Appellant’s reasoning contains several flaws, any of them fatal to his contention

on appeal. We mention two. First, as the State points out, appellant testified to his

intention to share his cocaine with others. His argument the evidence did not show an

intent to deliver thus assumes that “delivery” means “sale.” But, this is not the case.

When an actor possesses a quantity of drugs sufficient to permit the jury to conclude

that he possessed them with the intent to distribute them, the statute does not require

any existing offer to sell or prospective buyer before he may be held liable under section

481.112. Lopez v. State, 108 S.W.3d 293, 300 (Tex. Crim. App. 2003).


         Second, appellant acknowledges that the jury heard evidence giving rise to two

equally reasonable conclusions: appellant intended either to “smoke his own dope,” or

intended to deliver it.    Applied to the issue of appellant’s intent, the standard for

evidentiary sufficiency in criminal cases asks whether a rational jury could find, beyond

reasonable doubt, he had the intent to deliver the cocaine he possessed, considering

the evidence in the light most favorable to the verdict. Poindexter, 153 S.W.3d at 406.

Choosing between competing rational inferences that may be drawn from the evidence

is a part of the role of the fact finder. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim.

App. 2009). If the inference that may be drawn from evidence is reasonable, as an

appellate court we must defer to the jury’s choice and may not substitute our judgment

for that of the jury. Id. Appellant is correct; the evidence does give rise to a reasonable

inference he possessed the cocaine with an intent to deliver it. That the jury chose to

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draw that inference rather than the negative inference he did not have such an intent is

not grounds for reversal.


         Appellant admitted his possession of an amount of cocaine that testimony

showed could either be for personal use or an amount a “street-level” dealer typically

would possess. Appellant, two days before, had sold similarly-packaged cocaine at the

same location.      He had scales and additional cash.          Those facts, augmented by

appellant’s admission he often shared his personal drugs with others, amply support the

jury’s conclusion appellant had the intent to deliver. Kibble, 340 S.W.3d at 19. The

evidence is sufficient to support the trial court’s judgment.


         We resolve appellant’s sole issue against him and affirm the judgment of the trial

court.




                                                  James T. Campbell
                                                      Justice


Do not publish.




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