In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00172-CR
COURTNEY LEWIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 211th District Court
Denton County, Texas
Trial Court No. F-2010-2015-D, Honorable L. Dee Shipman, Presiding
March 6, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Courtney Lewis appeals from his jury conviction of the offense of
possession of cocaine, with intent to deliver, and the resulting sentence of sixty years of
imprisonment.1 Through one issue, appellant contends the evidence was insufficient to
support his conviction. We will affirm.
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TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2012); TEX. PENAL CODE
ANN. § 12.42 (West 2012).
Background
Appellant was indicted for “intentionally or knowingly possessing with the intent to
deliver a controlled substance, to-wit: cocaine, in an amount of one gram or more, but
less than four grams.” The indictment also contained an enhancement paragraph
alleging a prior final felony conviction. Appellant plead not guilty and the case was tried
before a jury.
Evidence showed police executed a search warrant on a hotel room in Lewisville,
Texas. The only person in the room was appellant. A substance, later identified as
2.91 grams of crack cocaine, was located on the night stand. The packaging matched
the packaging of drugs bought from appellant by an informant two days earlier. No
weapons were found. A cell phone, some $300 cash, razor blades and a digital scale
also were present. Among the cash were two $20 bills identified as the bills police gave
the informant for the drug buy two days earlier. The cell phone number matched the
number the informant used to set up the buy with appellant. During a later interrogation
by police, appellant admitted he sold crack.
At trial, appellant testified and admitted to possession of the cocaine. He denied
any intent to deliver, but on cross-examination acknowledged he gave cocaine to
people and was planning to share the cocaine in the room with other people.
Analysis
Through his sole issue on appeal, appellant challenges the sufficiency of the
evidence to support his conviction. He acknowledges the sufficiency of the evidence he
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possessed the cocaine, and challenges only the evidence supporting the jury’s finding
his possession was accompanied by an intent to deliver.
When examining the sufficiency of the evidence, an appellate court views the
evidence in the light most favorable to the verdict. Poindexter v. State, 153 S.W.3d 402,
405 (Tex. Crim App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.
2781, 61 L.E.2d 560 (1979)). See also Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010). The evidentiary sufficiency standard "gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts."
Jackson, 443 U.S. at 319. If a rational trier of fact could find from the evidence the
essential elements of the crime beyond a reasonable doubt, the evidence is sufficient to
support the conviction. Poindexter, 153 S.W.3d at 405.
Intent to deliver may be proved by circumstantial evidence, including evidence
surrounding its possession. Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort
Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997). The intent can be inferred
from the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481,
487 (Tex. Crim. App. 1995). The factors to be considered in determining whether a
defendant possessed contraband with an intent to deliver include the nature of the
location where the defendant was arrested, the quantity of drugs the defendant
possessed, the manner of packaging the drugs, the presence or absence of drug
paraphernalia, whether the defendant possessed a large amount of cash, and the
defendant's status as a drug user. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—
Houston [1st Dist] 2010, pet. ref'd); see also Williams v. State, 902 S.W.2d 505, 507
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(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This list of factors is not exclusive, nor
must they all be present to establish a defendant's intent to deliver. Kibble, 340 S.W.3d
at 19.
Appellant’s reasoning contains several flaws, any of them fatal to his contention
on appeal. We mention two. First, as the State points out, appellant testified to his
intention to share his cocaine with others. His argument the evidence did not show an
intent to deliver thus assumes that “delivery” means “sale.” But, this is not the case.
When an actor possesses a quantity of drugs sufficient to permit the jury to conclude
that he possessed them with the intent to distribute them, the statute does not require
any existing offer to sell or prospective buyer before he may be held liable under section
481.112. Lopez v. State, 108 S.W.3d 293, 300 (Tex. Crim. App. 2003).
Second, appellant acknowledges that the jury heard evidence giving rise to two
equally reasonable conclusions: appellant intended either to “smoke his own dope,” or
intended to deliver it. Applied to the issue of appellant’s intent, the standard for
evidentiary sufficiency in criminal cases asks whether a rational jury could find, beyond
reasonable doubt, he had the intent to deliver the cocaine he possessed, considering
the evidence in the light most favorable to the verdict. Poindexter, 153 S.W.3d at 406.
Choosing between competing rational inferences that may be drawn from the evidence
is a part of the role of the fact finder. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim.
App. 2009). If the inference that may be drawn from evidence is reasonable, as an
appellate court we must defer to the jury’s choice and may not substitute our judgment
for that of the jury. Id. Appellant is correct; the evidence does give rise to a reasonable
inference he possessed the cocaine with an intent to deliver it. That the jury chose to
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draw that inference rather than the negative inference he did not have such an intent is
not grounds for reversal.
Appellant admitted his possession of an amount of cocaine that testimony
showed could either be for personal use or an amount a “street-level” dealer typically
would possess. Appellant, two days before, had sold similarly-packaged cocaine at the
same location. He had scales and additional cash. Those facts, augmented by
appellant’s admission he often shared his personal drugs with others, amply support the
jury’s conclusion appellant had the intent to deliver. Kibble, 340 S.W.3d at 19. The
evidence is sufficient to support the trial court’s judgment.
We resolve appellant’s sole issue against him and affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
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