AFFIRM; and Opinion Filed July 7, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00629-CR

                          GUADALUPE VILLARREAL, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F-1258708-I

                                          OPINION
                           Before Justices Fillmore, Evans, and Lewis
                                  Opinion by Justice Fillmore

       A jury convicted Guadalupe Villarreal of possession, with intent to deliver, of four grams

or more but less than 200 grams of cocaine, found the enhancement paragraph alleged in the

indictment to be true, found the enhancement alleged in the “Notice of the State’s Intent to

Enhance Punishment Range” not to be true, and sentenced Villarreal to twenty years’

imprisonment.    In five issues, Villarreal asserts the evidence is insufficient to support the

conviction, and the trial court erred by proceeding with fewer than twelve jurors, by admitting

evidence of Villarreal’s and his family members’ gang affiliation, and by failing to sua sponte

include an instruction in the jury charge. We affirm the trial court’s judgment.

                                          Background

       On August 2, 2012, Detective Jennifer Castleberg and her partner, Detective Adolio Rios,

were assigned to the Dallas Police Department’s Gang Unit. Castleberg, Rios, and Officer
Leland Limbaugh, who was temporarily assigned to the Gang Unit, were patrolling North Oak

Cliff with the objective of identifying and contacting gang members. The three officers regularly

drove by the house at 713 Sabine Street while they were on patrol because it was known as a

“drug house.”

       Castleberg testified the house was used by the 5-10 ENT division of the Junior

Homeboys gang as a place to sell “dope.” According to Castleberg, Villarreal’s brother, Jorge

Miranda, was the leader of the 5-10 ENT. Villarreal was Miranda’s “right-hand man” and was

entrusted by Miranda with selling drugs at the house. Castleberg had seen Villarreal at the house

“more than a dozen times” during the preceding eighteen months. Although the house and the

gate were usually locked, Villarreal would be in the yard and Castleberg would speak to him

through the iron fence. Castleberg testified that Villarreal admitted during a prior hearing that he

lived at the house, and Limbaugh also testified that Villarreal “admitted that he lived there.”

According to Castleberg, she had previously attempted to identify the owner of the house, but

was unable to do so because there was neither water nor electric service to the house.

       As the officers drove by the house on August 2, they saw that both the gate to the

driveway and the front door to the house were open. Because it was unusual for the property to

be unsecured, the officers decided to investigate whether the house was vacant. When the

officers reached the front door to the house, they saw Angelica Villarreal, Villarreal’s mother,

sweeping in the dining room area. Although there was no dining room furniture, a pool table

was located in the area where Angelica was sweeping.

       Castleberg, who knew Angelica, greeted her and asked if the officers could come inside

the house. According to all three officers, Angelica said they could enter the house. The officers

entered the house, and Castleberg leaned against the pool table while she talked to Angelica. All

three officers testified that Villarreal came out of a bedroom, appeared startled when he saw the

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officers, went back into the bedroom, and shut the door. Castleberg told everybody in the

bedroom to come out. When the bedroom door opened, Castleberg saw crack cocaine in plain

view on the floor and on a table. According to Castleberg, a six-year-old boy was sitting on the

floor next to a tray of individually wrapped “rocks” of crack cocaine.            In response to

Castleberg’s request, four adult men, including Villarreal, a fourteen-year-old boy, and the six-

year-old boy came out of the room.

       For safety reasons, the officers performed a protective sweep of the house to ensure

nobody else was present.     During this sweep, Limbaugh saw there were security cameras

throughout the house that fed surveillance footage to the television in the bedroom where the

cocaine was found, there was no furniture in the living room, there was a pool table in the dining

room, and there were no “kitchen-type” utensils. Some of the cocaine that Limbaugh saw was

packaged in individual “baggies.” This packaging was consistent “with the selling of drugs.”

These observations confirmed Limbaugh’s impression that the house was a “drug house.”

Castleberg testified there was trash, used condoms, and buckets of urine and feces in the house,

and she did not believe anybody lived in the house.

       Castleberg contacted the Narcotics Unit, and officers in that unit obtained a search

warrant for the house.    Detective Cody Brasher, who was assigned to the Narcotics Unit,

participated in the search of the house. According to Brasher, individuals working in a drug

house have different roles. One person screens the potential customers, one person delivers the

drugs, and one person holds the money. In Brasher’s opinion, the house did not look like a

“typical straight” drug house because it appeared that people were living inside the house.

During the search of the house, officers found a total of 92.4 grams of crack cocaine, plastic

packaging in different sizes and colors that is commonly used to package drugs for sale, glass

pipes containing drug residue, a digital scale, a magnet box with a razor blade, some marijuana,

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and sixteen 9 millimeter bullets. Approximately twenty-one grams of the cocaine were divided

into ninety-four bags. The bulk of the cocaine was concealed in a black bag found in the corner

of the bedroom. Officers also searched the men who had been present in the room and found

$2,844 in the possession of Daniel Macias.

       According to Angelica, she cleans the house at the request of Miranda, but Villarreal pays

her for the work. Angelica testified that she was not allowed to go into the bedroom in the house

and admitted the men were “probably” selling cocaine out of that room. When Castleberg asked

if the officers could come into the house, Angelica asked them to wait. She then went to the

bedroom, knocked on the door, and asked the “guys” if the police could come into the house.

When Angelica turned away from the bedroom door, she saw that the officers were already in

the house. Macias, not Villarreal, came out of the bedroom and, when he saw the officers, went

back into the bedroom.      Angelica testified that Castleberg called Macias by his nickname

“Doughboy” and told Macias to come out of the bedroom. Efran Hernandez, the fourteen-year-

old boy who was in the bedroom, testified that Macias, not Villarreal, opened the bedroom door.

Both Angelica and Hernandez testified that Villarreal was asleep when the police came into the

house. Hernandez also testified he did not see any cocaine in the room and believed that

Miranda rented the house.

       Crystal Picon, Villarreal’s girlfriend, testified that Villarreal usually “stays” at the house

and agreed that Villarreal was usually “in charge” of the house. She visited Villarreal at the

house on August 2, 2012, but only went into his bedroom, which was not the bedroom in which

the drugs were found. Picon did not go into the bedroom where the drugs were found and did

not see any narcotics or cocaine. She also did not notice the used condoms or trash on the floor

of Villarreal’s bedroom. According to Picon, a person standing in the dining room would not

have been able to see someone coming out of the bedroom.

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       The jury was charged on both the offense of possession of cocaine, with intent to deliver,

and the lesser included offense of possession of cocaine. The jury found Villarreal guilty of the

greater offense, found one enhancement paragraph to be true, and assessed punishment of twenty

years’ imprisonment.

                                   Sufficiency of the Evidence

       In his first issue, Villarreal argues the evidence is insufficient to support the conviction

because the State failed to prove that he, either as a principal or a party, committed the offense.

                                        Standard of Review

       We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

We examine all the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “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; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The jury,

as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe

all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459,

461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012) (“The factfinder exclusively determines the weight and credibility of the evidence.”). We

defer to the jury’s determinations of credibility, and may not substitute our judgment for that of

the jury. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting

legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our

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judgment for that of the jury”). “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). Evidence is sufficient if “the

inferences necessary to establish guilt are reasonable based upon the cumulative force of all the

evidence when considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at 903.

                                         Applicable Law

       To prove unlawful possession of a controlled substance with intent to deliver, the State

was required to establish beyond a reasonable doubt that Villarreal (1) exercised care, custody,

control, or management over a controlled substance, (2) intended to deliver the controlled

substance to another, and (3) knew the matter possessed was a controlled substance. Cadoree v.

State, 331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Parker v. State,

192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see also TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(3)(D) (cocaine is a controlled substance listed in Penalty Group

1); 481.112(a) (person commits an offense if he knowingly possesses, with intent to deliver, a

controlled substance listed in Penalty Group 1) (West 2010). Whether direct or circumstantial,

the evidence must establish that the accused’s connection with the controlled substance was

more than fortuitous. Blackman v. State, 350 S.W.3d 588, 594–95 (Tex. Crim. App. 2011);

Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005). Mere presence at a

location where drugs are found is insufficient, by itself, to establish possession. Evans v. State,

202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Further, when the accused is not in exclusive

possession of the place where the substance is found, it cannot be concluded that the accused had

knowledge of and control over the contraband unless there are additional independent facts and

circumstances which affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d

at 406; see also Blackman, 350 S.W.3d at 594–95.

                                                –6–
       A nonexclusive list of factors that can be sufficient, either singly or in combination, to

establish possession of contraband include: (1) presence when a search is conducted, (2) whether

the contraband was in plain view, (3) proximity to and the accessibility of the contraband, (4) the

accused being under the influence of narcotics when arrested, (5) possession of other contraband

or narcotics when arrested, (6) incriminating statements made by the accused when arrested, (7)

an attempt to flee, (8) furtive gestures, (9) an odor of contraband, (10) the presence of other

contraband or drug paraphernalia, (11) whether the accused owned or had the right to possess the

place where the drugs were found, (12) whether the place where the drugs were found was

enclosed, (13) possession of a large amount of cash, (14) conduct of the accused indicating a

consciousness of guilt, (15) the quantity of the contraband, and (16) the accused’s presence in a

suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Wright v. State,

401 S.W.3d 813, 818–19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); Lassaint v. State,

79 S.W.3d 736, 740–41 (Tex. App.—Corpus Christi 2002, no pet.). These are simply some

factors which may circumstantially establish the sufficiency of the evidence to prove knowing

possession. Evans, 202 S.W.3d at 162 n.12. However, no set formula of facts exists to dictate a

finding of links sufficient to support an inference of knowing possession. Taylor v. State, 106

S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). The number of linking factors present is

not as important as the logical force they create to prove the crime was committed. Evans, 202

S.W.3d at 162; Taylor, 106 S.W.3d at 831.

       Intent to deliver a controlled substance may also be established through circumstantial

evidence. Taylor, 106 S.W.3d at 831; Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort

Worth 2004, no pet.). It may be inferred from the acts, words, or conduct of the accused.

Taylor, 106 S.W.3d at 831. Testimony by experienced law enforcement officers may be used to

establish a defendant’s intent to deliver. Robinson v. State, 174 S.W.3d 320, 331 (Tex. App.—

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Houston [1st Dist.] 2005, pet. ref’d). We may also consider a number of factors in determining

such intent, including (1) the nature of the location where the defendant was arrested, (2) the

quantity of drugs the defendant possessed, (3) the manner of packaging the drugs, (4) the

presence or absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed

a large amount of cash in addition to the drugs, (6) the defendant’s status as a drug user, and (7)

evidence of drug transactions. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.—Dallas 1987,

pet. ref’d); Robinson, 174 S.W.3d at 331; see also Taylor, 106 S.W.3d at 831. Again, the

“number of factors present is not as important as the logical force the factors have in establishing

the elements of the offense.” Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d) (op. on reh’g).

       The jury was charged that Villarreal could be guilty as a party to the offense. Under the

law of parties, each party to an offense may be charged with the commission of the offense.

TEX. PENAL CODE ANN. § 7.01(b) (West 2011). A person is responsible for the criminal conduct

of another person if “acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id.

§ 7.02(a)(2) (West 2011). When a party is not the “primary actor,” the State must prove conduct

constituting an offense plus an act by the defendant alone with the intent to promote or assist

such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Evidence may be

deemed sufficient to sustain a conviction under the law of parties if the evidence shows that the

defendant was physically present at the commission of the offense and encouraged the

commission of the offense either by words or other agreement. Id.; Miller v. State, 83 S.W.3d

308, 313 (Tex. App.—Austin 2002, pet. ref’d). Circumstantial evidence may suffice to show the

defendant is a party to the offense. Miller, 83 S.W.3d at 314. While mere presence at the scene,

or even flight, is not enough to sustain a conviction, such facts may be considered in determining

                                                –8–
whether a defendant was a party to the offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex.

Crim. App. 1981) (op. on reh’g); Miller, 83 S.W.3d at 314. Because the charge authorized the

jury to convict Villarreal as a principal or a party, the verdict will be upheld if the evidence was

sufficient on either of those theories. Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App.

2005).

                                             Analysis

         In this case, viewing the evidence in the light most favorable to the judgment, there was

evidence the house was a “drug house” used by the 5-10 ENT division of the Junior Homeboys

gang to sell drugs. According to Castleberry, Miranda was in charge of the 5-10 ENT and

Villarreal was Miranda’s “right-hand man.” Angelica testified the men “probably” sold cocaine

out of the house.

         Although the gate to and the front door of the house were usually locked, Castleberg had

seen Villarreal in the yard over a dozen times in the preceding eighteen months. There was also

evidence that Villarreal admitted he lived at the house, and Picon testified that Villarreal

“stayed” at and was “in charge” of the house. Based on the condition of the house, neither

Castleberg nor Limbaugh thought anyone lived there.

         When Villarreal came out of the bedroom and saw the police officers, he immediately

returned to the bedroom and shut the door. He was found in the room where the drugs were

discovered. There were ninety-four individually wrapped “rocks” of cocaine, at least some of

which were in plain view in the room. Both Brasher and Limbaugh testified that this packaging

was consistent with the sale of drugs. There was also a larger package of cocaine hidden in a

black bag in the corner of the room. All of the cocaine was accessible to Villarreal. Drug

paraphernalia including digital scales, plastic wrap typically used for packaging drugs, and glass

pipes with residue were also discovered in the bedroom along with a small amount of marijuana.

                                                –9–
A number of cameras located around the house fed surveillance video to the television located in

the bedroom. Macias possessed a large amount of cash, and Brasher testified that different

individuals in a drug house would have different duties, one of which was to keep the money.

       Considering the factors applicable to determining whether Villarreal possessed and

intended to distribute the cocaine, there was evidence Villarreal was present when the search was

conducted; some of the cocaine was in plain view and was accessible to Villarreal; Villarreal

made a furtive gesture when he attempted to return to the bedroom after seeing the police

officers; there was drug paraphernalia in the bedroom; Villarreal lived or stayed in the house and

was “in charge” of the house; another individual in the bedroom possessed a large amount of

cash; there was a total of 92.4 grams of cocaine; some of the cocaine was packaged as individual

“rocks”; this packaging was consistent with the sale of drugs; a larger amount of cocaine was

concealed in a bag in the bedroom; the men were “probably” selling cocaine from the house; and

the house was equipped with surveillance equipment and had a reputation as a “drug house.”

Viewing the evidence in the light most favorable to the verdict, and based on the logical force of

all the circumstantial and direct evidence, we conclude a rational jury could determine, beyond a

reasonable doubt, that Villarreal, either as the primary actor or a party, committed the charged

offense. See Jackson, 443 U.S. at 319; Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App.

2011). Accordingly, the evidence is sufficient to support the conviction. We resolve Villarreal’s

first issue against him.

                                      Composition of Jury

       In his second issue, Villarreal asserts the trial court erred by proceeding, over his

objection, with a jury of fewer than twelve members. A jury was selected, but not sworn, on the

first day of trial. The following morning, one of the selected jurors informed the trial court that

she believed she would be biased in favor of Villarreal because her husband had been convicted

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of the same type of offense and she did not believe that his sentence was fair. Villarreal objected

to both the removal of the juror and to the granting of a mistrial.

       The trial court instructed court personnel to have the jurors brought in so that they could

be dismissed and to request that a different jury panel be brought to the court room. Villarreal

objected that this procedure put him in double jeopardy. The trial court indicated the original

jury panel had not yet been sworn. The prosecutor then suggested the case could proceed with

eleven jurors. After a discussion with his counsel, Villarreal indicated he was willing to proceed

with eleven jurors, but objected to the removal of the twelfth juror.

       A complaint on appeal must comport with the objection made at trial.         Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also TEX. R. APP. P. 33.1(a) (preservation of

complaint for appellate review requires complaint to trial court by timely request, objection, or

motion with sufficient specificity to make trial court aware of complaint, unless specific grounds

were apparent from context). At trial, Villarreal objected to the procedure that led to the removal

of the twelfth juror. Villarreal not only did not object in the trial court to proceeding with fewer

than twelve jurors, he agreed to do so. Accordingly, Villarreal forfeited his complaint on appeal

by not properly preserving error at trial. See TEX. R. APP. P. 33.1(a); Clark, 365 S.W.3d at 339–

40 (appellant failed to preserve complaint for review when trial objection did not comport with

issue raised on appeal).

       Even if Villarreal had preserved his issue for review, we cannot conclude the trial court

erred by proceeding with eleven jurors. The parties may agree to proceed with fewer than twelve

jurors. Hatch v. State, 958 S.W.2d 813, 815–16 (Tex. Crim. App. 1997) (citing TEX. GOV’T

CODE ANN. § 62.201 (West 2013)). Further, a defendant in a criminal case may waive the

requirement in article 36.29(a) of the code of criminal procedure that no less than twelve jurors

can return a verdict in a non-capital felony case. Id. at 815–16 (citing TEX. CODE CRIM. PROC.

                                                –11–
ANN. art. 36.29 (West Supp. 2013)). Although Villarreal objected to the removal of the twelfth

juror, he agreed to proceed to trial with eleven jurors. Accordingly, the trial court did not err by

proceeding to trial with fewer than twelve jurors. We resolve Villarreal’s second issue against

him.

                                                   Admission of Evidence

          In his third and fourth issues, Villarreal contends the trial court erred by admitting

evidence in the guilt phase of the trial about his and his family members’ gang affiliation because

the probative value of the evidence was substantially outweighed by the danger of unfair

prejudice.        Villarreal specifically complains about Castleberg’s testimony that the Junior

Homeboys are known for “dope dealing, aggravated robbery, aggravated assaults, burglary,

prostitution, bootlegging. Those are the main [crimes]” and “the 5-10 ENT was a clique inside

the Junior Homeboys that was based off family members of – or relatives of [Villarreal] and

Jorge Miranda, their family.” 1 We review the trial court’s admission of evidence under an abuse

of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). As long

as the trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion. Id.

          Villarreal contends the complained-of evidence should have been excluded under rules of

evidence 403 and 404(b).                  Rule 403 provides that, “[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” TEX. R. EVID. 403. Under rule 404(b), evidence of an

accused’s “other crimes, wrongs or acts is not admissible to prove the character of a person in


     1
       Villarreal does not complain on appeal about Castleberg’s testimony that he and Miranda were members of 5-10 ENT, a division of the
Junior Homeboys gang, or that the 5-10 ENT sold drugs from the house at 713 Sabine.



                                                                 –12–
order to show action in conformity therewith.” Id. 404(b). Evidence of extraneous acts “may,

however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Id. Evidence of

gang membership is admissible under rule 404(b) if it is “relevant to show a non-character

purpose that in turn tends to show the commission of the crime.” Ortiz v. State, 93 S.W.3d 79,

94 (Tex. Crim. App. 2002).

       Even assuming the trial court erred by admitting the complained-of evidence, we

conclude Villarreal was not harmed. See TEX. R. APP. P. 44.2(b). The improper admission of

evidence is non-constitutional error that an appellate court disregards unless the error affected an

appellant’s substantial rights. Id.; Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011);

Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim. App. 2007) (using harm analysis in rule of

appellate procedure 44.2(b) in determining that evidence of appellant flashing a gang sign was

harmless). We will not overturn a criminal conviction for non-constitutional error if, after

examining the record as a whole, we have fair assurance the error did not influence the jury, or

influenced the jury only slightly. Barshaw, 342 S.W.3d at 93.

       In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the error but on whether the error had a substantial or injurious effect or influence

on the jury’s verdict. Id. at 93–94. We review the entire record to ascertain the effect or

influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis “we examine the entire

trial record and calculate, as much as possible, the probable impact of the error upon the rest of

the evidence”). We consider all the evidence that was admitted at trial, the nature of the evidence

supporting the verdict, and the character of the alleged error and how it relates to evidence in the

record. Barshaw, 342 S.W.3d at 94; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

                                               –13–
2002). We may also consider the jury instructions, the parties’ theories of the case, closing

arguments, voir dire, and whether the State emphasized the error. Barshaw, 342 S.W.3d at 94;

Motilla, 78 S.W.3d at 355–56.

       Here, Villarreal’s defense was that he was asleep in the bedroom and did not participate

in the offense. However, there was evidence that Villarreal lived in, “stayed” at, or was “in

charge” of the house. Castleberg and Limbaugh testified the house was a “drug house,” and

Castleberg testified the sole purpose of the house was to use it as a place to sell drugs. Angelica

admitted that cocaine was “probably” sold out of the house. There were cameras on the house

that fed surveillance video to a television in the bedroom. Villarreal and other individuals were

in the bedroom with over ninety grams of crack cocaine. Ninety-four individually wrapped

“rocks” of cocaine were in the room. This packaging was consistent with the sale of drugs, and

at least some of these “rocks” were in plain view. Also in the bedroom was drug paraphernalia

and other items commonly used in packaging and selling cocaine. When Villarreal came out of

the bedroom and saw the officers, he immediately retreated into the room and shut the door. One

of the other individuals in the room had over $2,800 in his possession.

       Although the prosecutor referenced Villarreal’s and Miranda’s gang membership during

closing argument and that the 5-10 ENT and the Junior Homeboys used the house at 713 Sabine

to sell drugs, he did not argue that either the 5-10 ENT or the Junior Homeboys, or Villarreal as a

member of these groups, were involved in any other criminal activity. The court’s charge

instructed the jury that, if there was evidence that Villarreal committed offenses other than the

offense alleged in the indictment, the jury could not consider the evidence for any purpose unless

it found beyond a reasonable doubt that Villarreal committed the other offenses. The trial court

further instructed the jury that, even if it made this finding, it could consider the other offenses

only in determining Villarreal’s motive, opportunity, intent, plan, identity, knowledge, or

                                               –14–
absence of mistake or accident and not for any other purpose. There is no indication in the

record that the jury did not follow the trial court’s instructions.

        Based on the record as whole, we have a fair assurance that the two statements by

Castleberg about which Villarreal complains on appeal did not influence the jury, or influenced

the jury only slightly. We resolve Villarreal’s third and fourth issues against him.

                                         Jury Charge Error

        In his fifth issue, Villarreal contends the trial court erred by failing to sua sponte include

in its charge to the jury a “benefit of the doubt instruction.” Specifically, Villarreal argues the

trial court should have instructed the jury that if it “had a reasonable doubt as to whether

[Villarreal] was guilty of possession with intent to deliver cocaine or straight possession of

cocaine, then they should resolve that doubt in favor of possession” and he was egregiously

harmed by its absence in the charge.

        Our first duty in analyzing a jury-charge issue is to decide whether error exists. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we must determine whether

the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.

Crim. App. 2005). When, as in this case, the error was not objected to, the error must be

“fundamental” and requires reversal “only if it was so egregious and created such harm that the

defendant ‘has not had a fair and impartial trial.’” Barrios v. State, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g)). Egregious harm exists when the record shows that a defendant has suffered actual,

rather than merely theoretical, harm from jury-charge error. Almanza, 686 S.W.2d at 174.

Egregious harm consists of error affecting the very basis of the case, depriving the defendant of a

valuable right, or vitally affecting a defensive theory. See Cosio v. State, 353 S.W.3d 766, 777

(Tex. Crim. App. 2011).

                                                 –15–
       The purpose of the jury charge is to inform the jury of the applicable law and guide the

jurors in applying it to the facts of the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.

App. 2007). Under article 36.14 of the code of criminal procedure, the trial court shall deliver to

the jury “a written charge distinctly setting forth the law applicable to the case[.]” TEX. CODE

CRIM. PROC. ANN. art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim.

App. 2011).    This duty exists even when defense counsel fails to object to inclusions or

exclusions in the charge and thus may require the trial court to sua sponte instruct the jury on the

law applicable to the case. Taylor, 332 S.W.3d at 486.

       As a general rule, where greater and lesser grades or degrees of an offense are charged,

the court must give the jury a “benefit of the doubt” instruction if requested by the defendant.

See Kihega v. State, 392 S.W.3d 828, 835 (Tex. App.—Texarkana 2013, no pet.); Benavides v.

State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d). The instruction is

given to assist the jury if it has no reasonable doubt as to the defendant’s guilt, but is uncertain

about the grade or degree of the offense. Benavides, 763 S.W.2d at 589 (citing Richardson v.

State, 108 Tex. Crim. 318, 328, 239 S.W. 218, 224 (1922) (op. on reh’g)). Failure to include a

“benefit of the doubt” instruction is not harmful to the defendant, however, if the charge as a

whole leaves no uncertainty as to how to resolve any doubt. Shelby v. State, 724 S.W.2d 138,

140 (Tex. App.—Dallas 1987) (op. on reh’g), vacated on other grounds, 761 S.W.2d 5 (Tex.

Crim. App. 1988) (per curiam); Benavides, 763 S.W.2d at 589.

       In this case, the jury was instructed in relevant part as follows:

            APPLICATION OF THE LAW AND FACTS WITH REGARD TO
               POSSESSION WITH INTENT TO DELIVER CHARGE

       Now, if you unanimously find from the evidence beyond a reasonable doubt that
       on or about August 2, 2012, in Dallas County, Texas, the defendant, Guadalupe
       Villarreal, either acting alone or with another as a party to the offense, did
       unlawfully knowingly possess with intent to deliver a substance, to-wit: Cocaine,
       in an amount by aggregate weight, including any adulterants or dilutants, of 4
                                               –16–
       grams or more but less than 200 grams, as alleged in the indictment, then you will
       find the defendant guilty of possession with intent to deliver as charged in the
       indictment.

               If you do not so find, or if you are unable to agree, you will next consider
       the following:


   APPLICATION OF THE LAW AND FACTS WITH REGARDS TO POSSESSION

       Now, if you unanimously find from the evidence beyond a reasonable doubt that
       on or about August 2, 2012, in Dallas County, Texas, the defendant, Guadalupe
       Villarreal, either acting alone or with another as party to the offense, did
       unlawfully knowingly possess a controlled substance, to wit: Cocaine, in an
       amount by aggregate weight, including any adulterants or dilutants, of 4 grams or
       more but less than 200 grams, as alleged in the indictment, then you will find the
       defendant guilty of possession of a controlled substance as included in the
       indictment.

               If you do not so find, or if you have a reasonable doubt thereof, you shall
       find the defendant not guilty.

                                                  ***

              All persons are presumed innocent, and no person may be convicted of an
       offense unless each element of the offense is proved beyond a reasonable doubt.

                The prosecution has the burden of proving the defendant guilty and it must
       do so by proving each element as charged beyond a reasonable doubt, and if it
       fails to do so, you must acquit the defendant.

       In Shelby, this Court considered a charge that included paragraphs very similar to the

paragraphs quoted above. 724 S.W.2d at 139–40. The charge in Shelby advised the jury to find

the defendant guilty of the greater offense only if the jury had no reasonable doubt he was guilty

of that offense, and if the jury had any reasonable doubt, the jury should consider whether he was

guilty of the lesser included offense. Id. The charge further advised the jury to find the

defendant guilty of the lesser offense only if it had no reasonable doubt he was guilty of that

offense, and if the jury had any reasonable doubt, the jury should find the defendant not guilty.

Id. at 140. This Court concluded the paragraphs made clear to the jury that any reasonable doubt

as to whether the defendant is guilty of the greater offense should be resolved against a finding
                                              –17–
that the greater offense was committed, and any reasonable doubt as to whether he is guilty of

the lesser included offense should be resolved with a not guilty finding. Id. Because the charge

in Shelby left no uncertainty as to how to resolve the doubt, we concluded any error in not

charging the jury on the “benefit of the doubt” was harmless. Id.

         Villarreal acknowledges this Court’s opinion in Shelby, but argues he was egregiously

harmed by the omission of the instruction from the charge because the entire focus of his defense

was to show he did not participate in the offense and, at most, was guilty as a party to possession

of the cocaine. However, as in Shelby, the charge in this case leaves no uncertainty as to how to

resolve any doubt regarding what verdict to return if the jury believed Villarreal was guilty but

had reasonable doubt as to whether he was guilty of possession with intent to deliver cocaine or

possession of cocaine. No further “benefit of the doubt” instruction was necessary. See id.;

Kihega, 392 S.W.3d at 837–38; Benavides, 763 S.W.2d at 589. 2 Accordingly, Villarreal was not

egregiously harmed by the trial court’s failure to sua sponte include the “benefit of the doubt”

instruction in the charge to the jury. We resolve Villarreal’s fifth issue against him.

         We affirm the trial court’s judgment.




                                                                  /Robert M. Fillmore/
                                                                  ROBERT M. FILLMORE
                                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47

130629F.U05


    2
       See also McKnight v. State, No. 05-12-00445-CR, 2013 WL 4517276, at * 8–9 (Tex. App.—Dallas Aug. 23, 2013, no pet.) (not
designated for publication).



                                                            –18–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

GUADALUPE VILLARREAL, Appellant                       On Appeal from the Criminal District Court
                                                      No. 2, Dallas County, Texas,
No. 05-13-00629-CR         V.                         Trial Court Cause No. F-1258708-I.
                                                      Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                          Justices Evans and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of July, 2014.




                                               –19–
