
Opinion issued May 31, 2007















In The
Court of Appeals
For The
First District of Texas



NO. 01-06-00519-CR
____________

PAULO JOSE SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1059539



O P I N I O N
	A jury found appellant, Paulo Jose Sanchez, guilty of the offense of possession
with intent to deliver a controlled substance, namely cocaine, weighing more than 200
grams but less than 400 grams, (1) and, after finding that appellant used or exhibited a
deadly weapon during the commission of the offense or during the immediate flight
therefrom, assessed his punishment at confinement for fifteen years and a $40,000.00
fine.  In six points of error, appellant contends that his trial counsel rendered
ineffective assistance of counsel during both the guilt and punishment phases of the
trial, the evidence is legally and factually insufficient to sustain the jury's finding that
appellant used or exhibited a deadly weapon during the commission of the offense,
and the trial court erred at the punishment phase in not charging the jury on parole
law and all of the applicable terms and conditions of community supervision.
	We affirm.
Factual and Procedural Background
	Houston Police Department ("HPD") Officer R. Morales testified that on
August 31, 2005, he received information from a confidential informant that a large
quantity of cocaine was present at 6543 Avenue I in Houston.  Based on that
information, Morales secured a search and arrest warrant for appellant.
	Morales explained that there were surveillance cameras monitoring the exterior
of the house.  Inside the house, on top of a small coffee table in the living room, was
a "big clear plastic bowl" containing 353 grams of cocaine.  The cocaine was sitting
on top of a scale.  Across from the coffee table, "small baggies" of cocaine were
located inside a dresser. (2)  Morales also found "multikilo baggies" on the floor
containing traces of cocaine, spoons and measuring cups containing "caked-on"
cocaine used to transfer cocaine, two sifters in the "southeast bedroom," at least four
measuring scales, and a drug ledger inside the house.  Officers also found pictures of
appellant throughout the house and a xeroxed copy of appellant's driver's license,
listing his address as 6543 Avenue I, in a drawer next to "baggies of cocaine."  Three
bills, one from BlueCross BlueShield, one from Stonebridge Life Insurance
Company, and one water bill, were addressed to appellant at that address. (3)  Officers
recovered nine firearms in the bedroom closest to the living room, where "the
majority of the cocaine was found," likely used to "protect their dope."  The nine
firearms consisted of a Winchester .308 rifle model 70 XTR with scope, Glenfield .22
rifle model 60, Sears & Roebuck .22 rifle model 3T, Universal .30 rifle, Norinco SKS
pistol, Smith & Wesson .357 revolver model 662, Ruger .357 revolver Security-Six,
RG .38 special revolver, and one shotgun that had been "reported stolen."  Morales
further explained that, based on his experience, the presence of surveillance cameras
and the quantity of cocaine recovered indicated that the cocaine was "being cut up to
sell" and not solely for personal use.  While conducting surveillance over a four-month period, Morales saw appellant present each of the approximately five times
that Morales went to the residence.
	HPD Officer R. Bradley testified that on August 31, 2005, he drove to 6543
Avenue I to assist Officers Morales and Gonzales with their surveillance.  Bradley
saw appellant get into a truck with another male and one or two young children. 
Bradley, in an unmarked truck, followed appellant to a Shell gas station.  At the gas
station, Bradley approached appellant, identified himself, and told appellant why he
was speaking with him.  After they moved to an empty lot across the street, appellant
denied that he had any narcotics at his residence, and Bradley asked appellant to sign
a consent to search the house.  Appellant refused and told Bradley to secure a warrant. 
While detaining appellant, Bradley received a call from Morales informing him that
he had secured a warrant.  Appellant admitted having twenty dollars worth of cocaine,
or about 0.5 grams, in his wallet.  An additional twenty-dollar bag of cocaine was
discovered in appellant's car.  A uniformed officer then took appellant to the
residence in a marked patrol car.
	Bradley further testified that as the officers served the warrant at the residence,
they noticed that a security camera was located on the right front corner of the house. 
While appellant was inside the patrol car, the officers entered the house using a
battering ram because of the presence of the security camera and because they had
been told that firearms were present inside the house.  Bradley noted that the house
was unoccupied when the officers entered and appellant had a key to the house on his
key ring.
	Appellant testified that he lived at 926 Forest Oak Drive for approximately five
years before his arrest.  The longest period of time that he had been away from that
residence was a three-week period when he had a fight with his wife, Elizabeth
Guerra.  Appellant explained that he had previously lived at 6543 Avenue I for four
years with his ex-wife.  At the time that he was arrested, appellant had been staying
at the house at 6543 Avenue I for about one week while he was on vacation, and he
had been out of his house for about three weeks.  During that three-week period,
appellant also stayed at his brother's house and then his mother's house.  Appellant
knew that the residents sold narcotics and that there were narcotics in the house, but
he did not see any narcotics in the living room.  He also knew that one of the
residents of the house had a gun, but he was not aware that the resident had several
guns.
	Elizabeth Guerra, appellant's wife, testified that at the time appellant was
arrested, the two were separated and he had stayed for three weeks with friends at
6543 Avenue I in a house owned by his aunt.  She explained that appellant had lived
at the property on Avenue I with his ex-wife, but that he had moved out of that house
five years prior to his arrest.  Juan Sanchez, appellant's brother, testified that although
appellant was "staying at" a house next to his aunt's house when he was arrested, he
was not "living at" that residence.  Dalton Francis, Jr., a pretrial services officer with
Harris County, testified that when he interviewed appellant, appellant told Francis
that he lived at 6543 Avenue I in Houston and had been living there for about ten
years.
	After the jury found appellant guilty and assessed his punishment and the trial
court signed its judgment and sentence, appellant filed a motion for new trial,
asserting that his trial counsel provided him with ineffective assistance.  After hearing
the evidence and arguments of counsel, the trial court denied the motion.
Ineffective Assistance
	In his first point of error, appellant argues that he received ineffective
assistance of counsel at the guilt phase of his trial because his trial counsel failed to
(1) object to the admission of the search warrant and return; (2) object to inadmissible
hearsay that the arresting officer received information from a confidential informant;
(3) file a motion to disclose the identity of the confidential informant pursuant to
Texas Rule of Evidence 508; (4) and (4) object when the trial court failed to comply
with the mandatory provisions of article 36.27 of the Texas Code of Criminal
Procedure. (5)  In his second point of error, appellant argues that he received ineffective
assistance of counsel at the punishment phase of his trial because his trial counsel
failed to (1) object to that portion of the trial court's jury charge that misstated the law
concerning appellant's eligibility for parole; (2) request that a number of terms and
conditions of community supervision set out in article 42.12 of the Texas Code of
Criminal Procedure be listed in the charge; (6) and (3) present a compelling defensive
theory that appellant did not use or exhibit a deadly weapon during the commission
of the offense.
	The standard of review for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984).  Strickland requires a two-step analysis whereby an appellant must show
both that (1) counsel's performance fell below an objective standard of
reasonableness and (2) but for counsel's unprofessional error, there is a reasonable
probability that the result of the proceedings would have been different.  Id.; Vasquez
v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992).  Strickland defines reasonable
probability as a "probability sufficient to undermine confidence in the outcome." 466
U.S. at 694, 104 S. Ct. at 2068.  In reviewing counsel's performance, we look to the
totality of the representation to determine the effectiveness of counsel, indulging a
strong presumption that his performance falls within the wide range of reasonable
professional assistance or trial strategy.  Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).  Furthermore, a claim of ineffective assistance must be firmly
supported in the record.  Id.
	We review a trial court's ruling on a motion for new trial under an abuse of
discretion standard.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004);
Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.--Houston [1st Dist.] 2006, pet.
ref'd).  Where, as here, the motion for new trial alleges ineffective assistance of
counsel, we must determine whether the trial court's determination of the ineffective
assistance claim and denial of the motion for new trial were clearly wrong and outside
the zone of reasonable disagreement.  Anderson, 193 S.W.3d at 39.
Guilt Phase of Trial
	Search Warrant and Return
	In his first point of error, appellant argues that his trial counsel was ineffective
because he failed to object to the admission into evidence of the search warrant and
return.  Appellant notes that prior to trial, his trial counsel had filed a written motion
in limine seeking to preclude "[a]ny mention of the warrant or fruit thereof obtained
to arrest [appellant] and search the house located at 6543 Ave. I without [appellant]
having the right to cross[-]examine the witnesses which are the basis of said warrant." 
Outside the presence of the jury, trial counsel again articulated that he did not want
any mention of the basis for the warrant without having the right to cross-examine the
informant.  Additionally, trial counsel explained to the trial court that he was
concerned that police officers would allude to previous narcotics transactions
between appellant and the informant.
	During Officer Morales's testimony, the State offered the search and arrest
warrant into evidence.  Appellant's trial counsel objected, stating, "The only
objection I have are the objections I previously stated, Your Honor, about the warrant
and the information with the warrant."  After noting that the exhibit did not contain
the affidavit in support of the warrant, the trial court overruled the objection and the
warrant was admitted into evidence.  
	Recitals contained in a search warrant and return are hearsay and are not
admissible before the jury for any purpose, and their admission over objection is
error.  Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977).  However,
whether the error constitutes reversible error is determined by examining the facts of
each case to see if the receipt of the instruments was harmful.  Id.  
	During the hearing on the motion for new trial, appellant's trial counsel
admitted that he had no tactical reason for not making a relevance or hearsay
objection when the warrant was introduced.  However, the evidence that appellant
now complains of was corroborated in multiple instances by other admissible
evidence at trial.  Regardless of whether his trial counsel's failure to object to the
admission of the search warrant fell below an objective standard of reasonableness,
appellant has failed to show a reasonable probability that the results of the
proceedings would have been different had trial counsel objected to the admission of
the search warrant.  Accordingly, we hold that the fact that appellant's trial counsel
failed to object to the admission of the search warrant does not support a claim of
ineffective assistance.
	Hearsay from Confidential Informant
	Appellant next argues that his trial counsel was ineffective because he failed
to object to Officer Morales's testimony as to what the confidential informant told
him on the grounds that it was inadmissible hearsay.  
	During the trial, when questioned by the State as to how he began his
investigation of the location in question, Morales stated that he "[r]eceived
information from a confidential informant," which he used to secure the search and
arrest warrant.  Morales "did a little investigation on the location and then conducted
surveillance" over a period of several months.
	In Schaffer v. State, the Court of Criminal Appeals noted that, 
	Frequently, testimony will have an impermissible hearsay aspect
along with a permissible nonhearsay aspect.  Almost always it will be
relevant for a testifying officer to relate how she happened upon the
scene of a crime or accident; thus, it is permissible for her to testify that
she was acting in response to "information received."  An arresting
officer should not be put in the false position of seeming just to have
happened upon the scene, he should be allowed some explanation of his
presence and conduct.  The police officer, however, should not be
permitted to relate historical aspects of the case, replete with hearsay
statements in the form of complaints and reports on grounds that she
was entitled to tell the jury the information upon which she acted. 

777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989) (internal citations omitted).  
	Here, the testimony in question did not reveal the details of the information that
the informant provided to Morales.  Morales's reference to the confidential informant
was merely a general description of possible criminality that provided an explanation
for why Morales developed appellant as a suspect and later secured a warrant.  See
Houston v. State, 185 S.W.3d 917, 923 (Tex. App.--Austin 2006, pet. ref'd).  If trial
counsel had asserted a hearsay objection, the trial court would not have abused its
discretion in overruling the objection.  Accordingly, we hold that the fact that
appellant's trial counsel did not object to Morales's testimony regarding what the
confidential informant told him does not support a claim of ineffective assistance.
	Motion to Disclose
	Appellant next argues that his trial counsel was ineffective because he failed
to file a motion to disclose the identity of the confidential informant.  See Tex. R.
Evid. 508.  Appellant asserts that his trial counsel's "professed 'strategic' reasons for
not seeking disclosure of the informant's identity [were] objectively unreasonable."
	Generally, the State has a privilege to refuse to disclose the identity of a person
who has furnished information relating to a possible violation of the law to a law
enforcement officer.  Tex. R. Evid. 508(a).  The State's privilege is not absolute.  See
id. 508(c).  The privilege does not apply in a criminal case (1) if the informer's
identity has been voluntarily disclosed, (2) if the informer may be able to give
testimony necessary to a fair determination of guilt or innocence, or (3) if the court
is not satisfied that information was obtained from an informer reasonably believed
to be reliable.  Id.  A defendant has the threshold burden of demonstrating that the
informant's identity must be disclosed.  Bodin v. State, 807 S.W.2d 313, 318-19 (Tex.
Crim. App. 1991).  The informant's potential testimony must significantly aid the
defendant, and mere conjecture or supposition about possible relevancy is
insufficient.  Id.
	During the hearing on the motion for new trial, appellant's trial counsel
testified that one of the reasons that he did not file a motion to disclose the identity
of the informant was that he felt that if the informant had been called to testify, he
would have testified favorably for the State about other instances in which the
informant had purchased narcotics from appellant.  Trial counsel also explained that
he did not think that appellant could meet the burden for requiring disclosure of the
informant's identity.  Trial counsel acknowledged that, based on his experience, if a
trial court makes the determination that a defendant has met his burden under rule
508, instead of disclosing the identity of the informant, the State typically dismisses
the case.
	Here, the informant's identity was not voluntarily disclosed, and the evidence
does not indicate that the informant was able to give testimony necessary to a fair
determination of guilt.  Nor does the record reveal that the trial court was not satisfied
that the information obtained from the informant was reasonably reliable.  Thus, trial
counsel's testimony that he did not think he could meet his burden appears to be
accurate.  Moreover, even assuming that appellant could have sustained his burden
in seeking disclosure, his trial counsel indicated his belief that the informant's
testimony would be damaging to appellant.  Accordingly, we hold that the fact that
appellant's trial counsel did not seek disclosure of the identity of the informant does
not support a claim of ineffective assistance.
	Compliance with Article 36.27
	Appellant next argues that his trial counsel was ineffective because he failed
to object when the trial court did not comply with the mandatory provisions of article
36.27 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann.
art. 36.27 (Vernon 2006).
	Article 36.27 provides that, 
	When the jury wishes to communicate with the court, it shall so
notify the sheriff, who shall inform the court thereof.  Any
communication relative to the cause must be written, prepared by the
foreman and shall be submitted to the court through the bailiff.  The
court shall answer any such communication in writing, and before
giving such answer to the jury shall use reasonable diligence to secure
the presence of the defendant and his counsel, and shall first submit the
question and also submit his answer to the same to the defendant or his
counsel or objections and exceptions, in the same manner as any other
written instructions are submitted to such counsel, before the court gives
such answer to the jury, but if he is unable to secure the presence of the
defendant and his counsel, then he shall proceed to answer the same as
he deems proper.  The written instruction or answer to the
communication shall be read in open court unless expressly waived by
the defendant.

	All such proceedings in felony cases shall be a part of the record
and recorded by the court reporter.

Id.  
	During their deliberations at the guilt phase of the trial, the jury sent a note to
the trial court, which stated,
	We need explanation of the special issue toward the guns.  Does
it mean (1) that he used the guns during the arrest[?] or (2) that he was
in possession of the guns? [or] (3) Did he use them during the time of
his drug dealing?

The trial court replied on the same note, "Please refer to the Court's charge." 
Appellant contends that because the court reporter's record from that morning "does
not reveal that the trial court accepted the jury's note, answered it on the record in the
presence of the court reporter, sought an express waiver from [a]ppellant of the
mandatory dictates of [article] 36.27, or that trial counsel was afforded an opportunity
to either furnish a reply to the jury's question or object to the trial court's refusal to
answer the jury's question," his trial counsel's failure to object constituted ineffective
assistance.
	During the hearing on the motion for new trial, appellant's trial counsel
testified that when the jury sent out its note, he was downstairs in the courthouse and,
by the time he returned to the courtroom, the trial court had already furnished an
answer to the jury's questions.  At the hearing, appellant argued that trial counsel
should have requested that the trial court answer the questions by stating to the jury
that in order to answer the special issue in the affirmative, it must find beyond a
reasonable doubt that appellant "used those guns to facilitate the drug felony."  The
trial court explained that when the note came out from the jury, the trial court tried
to locate appellant's trial counsel, who had been released to go to another court, but
that trial counsel's associate was present and he and the trial court agreed on the
response provided to the jury.  Although, during the trial, appellant's trial counsel
never on the record authorized his associate to act on appellant's behalf, trial counsel
stated that the contract between appellant and trial counsel provided that trial
counsel's associate was permitted to act on appellant's behalf.  Additionally,
appellant's trial counsel further testified that he agreed with the trial court's response
provided to the jury because appropriate instructions were included in the court's
charge.
	Appellant relies in part on Williamson v. State for the proposition that trial
counsel's failure to preserve a claim that the trial court failed to comply with article
36.27 is deficient conduct.  See 771 S.W.2d 601, 608 (Tex. App.--Dallas 1989, pet.
ref'd). (7)  In Williamson, while deliberating during the guilt phase of the trial, the jury
sent out a note to the trial court asking, "Was the microwave positively identified as
the one taken from the photo lab?"  Id. at 604.  The trial court replied to the note as
follows,
	In reply to your above note you are instructed that the witness . . .
testified that he compared the serial number from his records to the
microwave taken by the police and that it was the one removed from his
business.

Id.  The court of appeals stated that the trial court's response also constituted an
impermissible comment on the weight of the evidence and would have been
reversible error.  Id. at 608-09.  That court held that the failure to object or offer a bill
of exception was "an instance of deficient performance by trial counsel."  Id. at 608. 
Here, however, the trial court's response did not comment on the weight of the
evidence; it merely referred the jury to the court's charge.
	More helpful is Ash v. State, where during deliberations the jury sent a note to
the trial court asking the following,
	We, the jury, request that [the trial court] clarify the definition of
"serious bodily injury."  We need to know if defendant's intend [sic] in
the incident (with regard to an injury), or do we only need to consider
the act or results of the act.

930 S.W.2d 192, 195-96 (Tex. App.--Dallas 1996, no pet.).  The trial court
responded by stating, "You are instructed that you have been given all of the law and
instruction that this Court is, under the law, allowed to give you."  Id. at 196. The
court of appeals held that the trial court's response to the jury's note was not
erroneous and that the defendant was not harmed.  See id. 
	Here, the trial court's instruction to the jury to refer to the court's charge was
not improper.  Accordingly, we hold that the fact that appellant's trial counsel did not
object to the trial court's response to the jury's question does not support a claim of
ineffective assistance.
 Synergistic Effect
	Appellant further argues that the "synergistic effect of the deficient conduct
here" presents "a breakdown in the adversarial process."  However, as noted above,
appellant has not demonstrated that any of the above acts and omissions made by his
trial counsel amounted to a deficient performance or that there is a reasonable
probability that the results of the proceeding would have been different.  Accordingly,
we hold that appellant's assertion of a synergistic effect of the above claimed
deficiencies does not support a claim of ineffective assistance.
	Having held that none of appellant's arguments above support a claim of
ineffective assistance of counsel, we further hold that the trial court did not err in
denying appellant's motion for new trial on the ground that his trial counsel's
performance was deficient at the guilt stage of the trial.  Accordingly, we overrule
appellant's first point of error.
Punishment Phase of Trial
	Parole Law Jury Instruction
	In his second point of error, appellant argues that his trial counsel was
ineffective because he failed to object to a portion of the jury charge that misstated
appellant's eligibility for parole.  Appellant argues that because his trial counsel
failed to object to the omission of the "statutorily-mandated phrase 'without
consideration of any good conduct time [appellant] may earn'" from the court's
charge in the punishment phase of the trial, his trial counsel's performance was
deficient.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon 2006). (8)  The
State argues that because "good conduct time" was not available to appellant due to
the jury's affirmative finding on the special issue regarding appellant's use or
exhibition of a deadly weapon during the commission of the offense, the "trial court's
charge to the jury was entirely accurate, and there was no danger that the jurors might
have considered the extent to which good conduct time might have been awarded to
or forfeited by . . . appellant because the jurors were not told about good conduct time
at all."
	The instruction prescribed by section 4(a) of article 37.07 is required in cases
in which the jury assesses punishment and the charged offense is listed in section
3g(a)(1) of article 42.12 of the Texas Code of Criminal Procedure or if the judgment
contains an affirmative finding of the use of a deadly weapon.  Id. arts. 37.07, § 4(a);
42.12 § 3g(a) (Vernon 2006).  Because the jury found that appellant used or exhibited
a deadly weapon during the commission of the offense or during the immediate flight
therefrom, the trial court was required to provide the instruction prescribed in section
4(a).  However, because the jury found that appellant used or exhibited a deadly
weapon during the commission of the offense, he cannot receive a reduction, due to
good conduct, in the time that he has to serve.  Tex. Gov't Code Ann. §
508.149(a)(1) (Vernon 2004); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2).
	Here, the trial court omitted the portion of the instruction prescribed in section
4(a) related to good conduct time.  Had his trial counsel objected to the omission of
the mandatory language from the court's charge, and thus preserved error, appellant
would need to show "some harm" on appeal.  See Bolden v. State, 73 S.W.3d 428,
433 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (when a defendant sufficiently
preserves error to omission of good conduct language, he must show "some harm" on
appeal); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 
"Some harm" means the error was calculated to injure the rights of the defendant. 
Bolden, 73 S.W.3d at 433; Almanza, 686 S.W.2d at 171.
	The section 4(a) instruction informs a jury of how good conduct time combines
with actual time served to determine parole eligibility.  Grigsby v. State, 833 S.W.2d
573, 576 (Tex. App.--Dallas 1992, pet. ref'd).  Texas courts have consistently
recognized that the State, not the defendant, actually benefits from the parole and
good time instructions prescribed in section 4(a), and that such instructions are
designed to increase sentences assessed by juries.  Id.; Bolden, 73 S.W.3d at 434.  
	Appellant does not identify any actual harm that he suffered as a result of the
omission of a charge designed to increase the length of a sentence.  See Grigsby, 833
S.W.3d at 576.  Although appellant's trial counsel testified during the hearing on the
motion for new trial that he had no tactical reason for not objecting to the omission
of the mandatory language, the omission could be viewed as a strategic choice to
preclude any speculation by the jury regarding good conduct time in appellant's case. 
Appellant has not shown that his trial counsel's failure to object to the omission of
the good conduct time language fell below an objective standard of reasonableness,
nor that but for his trial counsel's error, there is a reasonable probability that the
results of the proceedings would have been different.  Accordingly, we hold that the
fact that appellant's trial counsel did not object to the portion of the jury charge that
misstated appellant's eligibility for parole does not support a claim of ineffective
assistance.
	Terms and Conditions of Community Supervision
	Appellant next argues that his trial counsel was ineffective because although
the court's charge included the first nine conditions of community supervision set out
in article 42.12, section 11(a) of the Texas Code of Criminal Procedure, trial counsel
failed to request that any other applicable terms and conditions of community
supervision be included in the court's charge.  See Tex. Code Crim. Proc. Ann. art.
42.12, § 11(a) (Vernon 2006).  Appellant asserts that trial counsel "had no tactical
reason for not asking that the following conditions of community supervision [be]
included in the jury charge: (1) the defendant submit to testing for drugs or alcohol;
(2) the defendant serve 180 days in the Harris County Jail, day for day; (3) the
defendant submit to electronic monitoring; (4) the defendant perform not less than
320 nor more than 1000 hours of community service; and (5) the defendant make a
one-time payment to Crime Stoppers."
	A trial court is not required to submit the statutory terms of community
supervision in the jury charge on punishment.  Id.; Croft v. State, 148 S.W.3d 533,
539 (Tex. App.--Houston [14th Dist.] 2004, no pet.).  The failure to enumerate all
of the terms and conditions is not considered harmful to the accused or restrictive of
the court's authority.  Wade v. State, 951 S.W.2d 886, 893 (Tex. App.--Waco 1997,
pet. ref'd).  The absence of a complete list of all the statutory terms and conditions
of community supervision in the charge does not necessarily constitute error.  See id.
	Even assuming that the failure to request other applicable terms and conditions
of community supervision in the court's charge fell below an objective standard of
reasonableness, we conclude that appellant has not made any showing that, but for
any such error on the part of his trial counsel, there is a reasonable probability that the
result of the proceedings would have been different.  Accordingly, we hold that the
fact that appellant's trial counsel did not request the inclusion of other applicable
terms and conditions of community supervision in the court's charge does not support
a claim of ineffective assistance.
	Defensive Theory on Deadly Weapon Issue
	Finally, appellant argues that his trial counsel was ineffective because he failed
to present a compelling defensive theory on the special issue of whether appellant
used or exhibited a deadly weapon, namely a firearm, during the commission of the
offense or during the immediate flight therefrom.  Appellant focuses his argument on
the assertion that his trial counsel (1) during voir dire, failed to discuss the special
issue with the venire and the venire's only exposure to the special issue resulted from
questioning by the State; (2) during closing arguments, failed "to present myriad
compelling arguments in support of this key issue"; and (3) never asked the jury "to
find in [a]ppellant's favor on this issue."
	In regard to his failure to question or instruct the venire on the special issue,
appellant's trial counsel, during the hearing on the motion for new trial, testified,
	I had [the deadly weapon] issue in my voir dire prepared.  The
State addressed it.  And I saw the feedback from the panel and when I
do my voir dire, I do issues in terms of priorities.  Depending on the
feedback from the panel, I address those issues.  And I saw their
feedback when the State brought it up and I thought it was brought up
appropriately and I put it at the bottom of my list as one of the last
priorities because I wanted to talk about other issues.

Trial counsel further explained that his other primary concerns included discussing
with the panel credibility issues with the witnesses as well as the panel's attitude
toward narcotics.  
	Appellant also asserts that although his trial counsel, at the hearing on the
motion for new trial, insisted that he did not "question of the venire because of the
'feedback' he got from them, he admitted that this 'feedback' consisted of only one
member of the venire responding to the State's hypothetical," and that "[w]hile trial
counsel did not want to get the venire 'excited about guns,' he admitted that he had
no way of knowing what they were thinking about the guns or whether any or all of
them could follow the law that the State had to prove beyond a reasonable doubt that
[a]ppellant used the guns to facilitate the drug felony."
	A defendant's trial counsel's articulated reason for declining to ask questions
on a topic during voir dire--that the prosecution's questioning adequately covered
the defense's concerns--can be a legitimate trial strategy under appropriate
circumstances.  See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005).  Here, appellant's trial counsel explained that he felt that the State had
discussed the special issue with the venire and stated that he felt it appropriate to
allocate his time during voir dire to other concerns including credibility issues with
the witnesses as well as the panel's attitude toward narcotics.  Thus, trial counsel
articulated a reasonable strategy for not further questioning the venire regarding the
special issue.  Appellant has not shown that his trial counsel's failure to discuss the
special issue with the venire fell below an objective standard of reasonableness. 
	In regard to appellant's assertion that his trial counsel failed "to present myriad
compelling arguments in support of this key issue" and to ask the jury "to find in
[a]ppellant's favor on this issue," we note that during his cross-examination of
Officer Morales, appellant's trial counsel elicited testimony that appellant was not
armed when he was arrested and had no guns in his vehicle, Morales did not submit
the nine weapons seized, one of which was stolen, to the print lab to see if
fingerprints could be recovered from them, and Morales made no attempt to
determine to whom the guns belonged based on the guns' serial numbers.  Moreover,
from the record, it is clear that the overall strategy of appellant's trial counsel was to
show that appellant did not live at the residence where the narcotics and weapons
were found.  After the jury had actually found appellant guilty of possession of the
narcotics, his trial counsel could have concluded that any argument on the deadly
weapon issue would have been, as demonstrated below, futile.  Viewed in the context
of trial counsel's entire representation, appellant has failed to show that his trial
counsel's failure to articulate other defensive theories and explicitly request that the
jury find in appellant's favor on the special issue fell below an objective standard of
reasonableness.
	Accordingly, we hold that appellant's claim that his trial counsel failed "to
present a compelling defensive theory" on the special issue of whether appellant used
or exhibited a deadly weapon, namely a firearm, during the commission of the offense
or during the immediate flight therefrom does not support a claim of ineffective
assistance.
	Having held that none of appellant's arguments support a claim of ineffective
assistance of counsel, we further hold that the trial court did not err in denying
appellant's motion for new trial on the ground that his trial counsel's performance
was deficient at the punishment stage of the trial.  Accordingly, we overrule
appellant's second point of error.
Deadly Weapon
	In his third and fourth points of error, appellant argues that the evidence is
legally and factually insufficient to support the jury's finding that he used or
exhibited a deadly weapon during the commission of the offense because appellant
was not in the house when it was searched, his fingerprints were not found on the
guns or in the bedroom where the guns were found, clothing and personal effects in
the bedroom where the guns were found did not belong to him, three other people had
access to the house, the guns were not loaded, he never admitted to owning the guns,
his mere presence in the area where the guns were found was not enough to answer
the special issue "yes," his knowledge that guns were present was not enough to
answer the special issue "yes," and his simultaneous possession of the guns and
narcotics was not enough to answer the special issue "yes."
	We review the legal sufficiency of the evidence by viewing the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. 
Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).  We note that
the trier of fact is the sole judge of the weight and credibility of the evidence. 
Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the fact finder. 
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must resolve any
inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394,
406 (Tex. Crim. App. 2000).
	In a factual sufficiency review, we view all the evidence in a neutral light, both
for and against the finding, and set aside the verdict if the proof of guilt is so
obviously weak as to undermine confidence in the jury's determination, i.e., that the
verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although
legally sufficient, is nevertheless against the great weight and preponderance of the
evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).  We
note that a jury is in the best position to evaluate the credibility of witnesses, and we
are required to afford "due deference" to the jury's determinations.  Marshall v. State,
210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
	The deadly weapon finding is important in that it affects a defendant's
eligibility for parole.  Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App.
2004).  When applied to the special issue regarding the use or exhibition of a deadly
weapon during the commission of a felony offense, for a legal sufficiency challenge,
the question is whether a rational trier of fact could find beyond a reasonable doubt
that the mere possession of firearms facilitated the associated felony.  See Gale v.
State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999).  "'[U]sed . . . a deadly weapon'
during the commission of the offense means that the deadly weapon was employed
or utilized in order to achieve its purpose."  Patterson v. State, 769 S.W.2d 938, 941
(Tex. Crim. App. 1989).  "'[E]xhibited a deadly weapon' means that the weapon was
consciously shown or displayed during the commission of the offense."  Id.  
	In support of his argument that the evidence is legally insufficient to support
the jury's finding, appellant relies on Wynn v. State, 847 S.W.2d 357 (Tex.
App.--Houston [1st Dist.] 1993), aff'd on other grounds, 864 S.W.2d 539 (Tex.
Crim. App. 1993).  In Wynn, a jury found that the defendant was guilty of possession
with intent to deliver cocaine weighing at least 400 grams and that the defendant used
or exhibited a deadly weapon during the commission of the offense.  847 S.W.2d at
358.  Officers searched the house while the defendant was in a patrol car.  Id.  In
addition to finding narcotics and other narcotics paraphernalia throughout the house,
officers found two handguns under a blanket in a separate bedroom.  Id. at 358-59. 
In the bedroom identified as the defendant's, the officers did not find any narcotics
or firearms.  Id. at 359.  This Court held that the evidence was legally insufficient to
sustain the jury's finding that the defendant used or exhibited a deadly weapon during
the commission of the offense.  Id. at 361.  In doing so, we noted that the defendant
was in a patrol car when the officers searched the house and was not within reach of
the narcotics or a firearm, no narcotics were found in the defendant's bedroom, the
officers did not find the defendant's fingerprints on the firearms or in the bedroom
where the firearms were found, at least two people other than the defendant had
access to the house, and the State did not determine who was the registered owner of
the firearms.  See id. at 360-61.
	Since we decided Wynn, the Texas Court of Criminal Appeals has explained
that a defendant's proximity to firearms at the time of a narcotics search is not
dispositive.  Coleman, 145 S.W.3d at 654. In Coleman, a jury found the defendant
guilty of possession with intent to deliver cocaine weighing more than four grams and
less than 200 grams, and PCP weighing at least 400 grams, and that the defendant
used a deadly weapon, a firearm, during the commission of each offense.  Id. at
649-50.  Officers searched the defendant's two-bedroom house while the defendant
remained in a patrol car.  Id. at 650.  The front bedroom contained a bed, dresser,
television, and safe.  Id.  The back bedroom contained an entertainment center, weight
set, and clothes and shoes piled onto the floor.  Id.  Inside the back bedroom, officers
found empty vials typically used to sell PCP and a juice bottle containing PCP behind
the entertainment center.  Id.  Inside the kitchen, officers discovered a small beaker-type glass containing crack cocaine.  Id. at 651.  Inside the dining room, officers
recovered more empty vials and a large amount of powdered cocaine.  Id.  Inside the
front bedroom, officers found a closed safe containing two large bottles of PCP, large
amounts of money, jewelry, and the defendant's college student identification card. 
Id.  Officers also found two pieces of unopened mail addressed to the defendant at
that address, a 9-millimeter pistol, and a .22 rifle inside the front bedroom.  Id.  An
assault rifle was also recovered, but the record did not disclose where it was found. 
Id.  Additionally, the utilities at the house were registered in the defendant's name
and the defendant told an interviewer at the jail that he lived alone in the house.  Id.
	The court held that because a rational jury could have found that the weapons
recovered facilitated the defendant's possession and intended distribution of the
narcotics, the evidence was legally sufficient to sustain the jury's finding that the
defendant used a deadly weapon during the commission of the offenses.  Id. at 655. 
The court specifically explained that it disagreed that Wynn stands for the proposition
that, "where no individual is observed in actual physical control over the weapon, and
where the weapon is found a significant distance from the controlled substance, then
the evidence is not sufficient to support an affirmative finding of use or exhibition of
a deadly weapon during the commission of an alleged narcotics offense."  Id. at
653-54.  The court distinguished Wynn, noting that in Wynn the guns and narcotics
seized were found in a bedroom that did not belong to Wynn and that Wynn was
found guilty as a party to the offense when, at that time, the State had to prove he
"personally used a deadly weapon."  Id. at 654.
	Here, in contrast to Wynn, appellant was not found guilty as a party.  Police
officers recovered nine firearms, consisting of rifles, revolvers, and a shotgun in the
bedroom located closest to the living room, in which the officers confiscated 353
grams of cocaine sitting on top of a scale, "small baggies" of cocaine inside a dresser,
and "multikilo baggies" on the floor containing traces of cocaine.  Throughout the
house, officers also seized spoons and measuring cups with "caked-on" cocaine used
to transfer narcotics, several other scales, and a drug ledger.  Also in contrast to the
defendant in Wynn, appellant's presence in the house was not linked to a single
bedroom.  See 847 S.W.2d at 360-61.  Officer Morales testified that he had seen
appellant at the house on several occasions while conducting surveillance.  Inside the
house, officers found pictures of appellant and a xeroxed copy of his driver's license,
listing the address as 6543 Avenue I, in a drawer next to "baggies of cocaine." 
Officers recovered three bills addressed to appellant at that address, and Morales
testified that all of the bills at the house were in appellant's name.  Appellant also told
Dalton Francis, Jr., a pretrial services officer with Harris County, that he lived at the
house and had been living there for about ten years.  
	As was the case in Coleman, this case is not about the mere simultaneous
possession of narcotics and firearms.  See Coleman, 145 S.W.3d at 657-58 (Cochran,
J., concurring).  It is about the operation of a narcotics distribution outlet, in which
nine firearms were confiscated in a room adjacent to a significant quantity of cocaine. 
See id.  Viewing all the evidence in the light most favorable to the jury's verdict, we
conclude, in accordance with Coleman, that a rational trier of fact could have found
beyond a reasonable doubt that the weapons recovered facilitated appellant's
possession and intended distribution of the narcotics.  See id. at 655.  Accordingly,
we hold that the evidence is legally sufficient to support the jury's finding that
appellant used or exhibited a deadly weapon during the commission of the offense.
	In regard to appellant's argument that the evidence is factually insufficient to
support the jury's verdict, it is true that appellant's fingerprints were not found on the
guns or in the bedroom where the guns were found and that the State presented no
evidence that the guns were loaded.  Also, appellant testified that he had been staying
in the house for only one week and he was not aware that the residents of the house
had several guns.  However, the jury was free to disbelieve his testimony.  In stark
contrast to his testimony, as shown above, ample evidence connected appellant to the
residence and, consequently, the narcotics and the firearms therein.  Also, a
photograph of eight of the nine firearms in question reveals that, like the presence of
the large quantity of narcotics in the house, the presence of the firearms would be
hard to miss.  Moreover, we cannot conclude that a firearm must be actually loaded
to facilitate the commission of an offense.  We conclude, viewing the evidence
neutrally, that the evidence is not so weak that the jury's finding is clearly wrong or
manifestly unjust or that the proof in support of the jury's finding is against the great
weight and preponderance of the evidence.  Accordingly, we hold that the evidence
is factually sufficient to support the jury's finding that appellant used or exhibited a
deadly weapon during the commission of the offense.
	We overrule appellant's third and fourth points of error.
Charge Error
	In his fifth and sixth points of error, appellant argues that he suffered egregious
harm from the trial court's erroneous parole law jury charge and its failure to include
in the jury charge all of the applicable terms and conditions of community
supervision.
	In analyzing a jury charge issue, our first duty is to decide whether error exists. 
Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).  If we find error,
we then analyze that error for harm.  Id.  When, as here, the defendant fails to object
or states that he has no objection to the charge, we will not reverse for jury-charge
error unless the record shows "egregious harm" to the defendant.  Bluitt v. State, 137
S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171.  Under the
Almanza egregious harm standard, the record must show that a defendant has suffered
actual, rather than merely theoretical, harm from jury instruction error.  Almanza, 686
S.W.2d at 174.  Egregious harm consists of errors affecting the very basis of the case
or that deprive the defendant of a valuable right, vitally affect a defensive theory, or
make the case for conviction or punishment clearly and significantly more persuasive. 
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).  Egregious harm is
a difficult standard to prove and must be determined on a case-by-case basis.  Ellison
v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).  To determine whether a
defendant has sustained egregious harm from a non-objected-to instruction, we
consider (1) the entire charge; (2) the state of the evidence, including contested
issues; (3) arguments of counsel; and (4) any other relevant information.  Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
	Appellant first argues that he suffered egregious harm when the trial court
omitted the statutorily-mandated phrase "without consideration of any good conduct
time [appellant] may earn" from the court's charge in the  punishment phase of the
trial.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).  For the same reasons
discussed in appellant's ineffective assistance of counsel claim, we conclude that
appellant has failed to show egregious harm resulting from the trial court's failure to
instruct the jury on "good conduct time" in regard to appellant's eligibility for parole. 
Accordingly, we hold that appellant has failed to show egregious harm resulting from
the trial court's parole instruction.
	Appellant next argues that he suffered egregious harm when the trial court's
charge included the first nine conditions of community supervision set out in article
42.12, section 11(a) of the Texas Code of Criminal Procedure, "but did not include
the following conditions: (1) the defendant submit to drug and alcohol testing; (2) the
defendant serve 180 days in the Harris County Jail, day for day; (3) the defendant
submit to electronic monitoring; (4) the defendant perform not less than 320 nor more
than 1000 hours of community service; and (5) the defendant make a one-time
payment to Crime Stoppers."  For the same reasons discussed in appellant's
ineffective assistance of counsel claim, we conclude that appellant has failed to show
egregious harm resulting from the trial court's failure to instruct the jury on these
other terms and conditions of community supervision.  Accordingly, we hold that
appellant has failed to show egregious harm resulting from the trial court's instruction
regarding terms and conditions of community supervision.
	We overrule appellant's fifth and sixth points of error.Conclusion
	We affirm the judgment of the trial court.


							Terry Jennings
							Justice

Panel consists of Justices Nuchia, Jennings and Bland.

Publish.  Tex. R. App. P. 47.2(b).
1. 	See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2006),
§ 481.112(a), (e) (Vernon 2003).
2. 	Officer Morales testified that "[t]wo clear baggies [that] weighed 12.50 grams" were
recovered from the dresser drawer and another "clear baggie that had 12.50 grams by
itself . . . was found in the top dresser also."
3. 	Morales explained that "all the bills and names were--in [appellant's] name.  So we
just took three and we left the rest there."
4.  See Tex. R. Evid. 508.
5. 	See Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006).
6. 	See id. art. 42.12 (Vernon 2006).
7. 	In Williamson, the appellant claimed that the trial court failed to comply with both
article 36.27 and article 36.28 of the Texas Code of Criminal Procedure.  See
Williamson v. State, 771 S.W.2d 601, 604 (Tex. App.--Dallas 1989, pet. ref'd); see
also Tex. Code Crim. Proc. Ann. arts. 36.27, 36.28 (Vernon 2006).
8. 	Section 4(a) of article 37.07 of the Texas Code of Criminal Procedure prescribes the
following instruction:
 
			Under the law applicable in this case, the defendant, if sentenced
to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time.  Prison
authorities may award good conduct time to a prisoner who exhibits
good behavior, diligence in carrying out prison work assignments, and
attempts at rehabilitations.  If a prisoner engages in misconduct, 
prison authorities may also take away all or part of any good conduct
time earned by the prisoner.  

			It is also possible that the length of the time for which the
defendant will be imprisoned might be reduced by the award of parole.
 
			Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served equals one-half of the sentence
imposed or 30 years, whichever is less, without consideration of any
good conduct time that he may earn.  If the defendant is sentenced to
a term of less than four years, he must serve at least two years before
he is eligible for parole.  Eligibility for parole does not guarantee that
parole will be granted.
 
			It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he is sentenced to a
term of imprisonment, because the application of these laws will
depend on decisions made by prison and parole authorities.
 
			You may consider the existence of the parole law and good
conduct time.  However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant.  You are not to consider the manner in which the parole law
may be applied to this particular defendant.

	Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon 2006) (emphasis added). 
Appellant complains that the trial court omitted the italicized portion of the above
instruction from the jury charge.
