### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00108-CR

Willie Lloyd, Jr. , Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF TO M GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A-99-0500-S, HONORAB LE TH OMAS GO SSETT , JUDGE PRESIDING

Willie Ll oyd, Jr. (“Ll

oyd”) seeks

re v er sa l of th e d i str i ct c our t’s j udgm en t, find ing him gu i l ty of po ss es sio n o f a

control l ed subs tanc e wi th i nten t to deli ver. See Tex. Heal

th & Saf ety Code A nn . § 4 81. 115 (a) , (d

) (W es t Sup p. 2 000 ). L l oy

d ra i se s f our iss ue s on appeal : (1) t he fact ual and le gal suffi ciency of the evidence, ( 2) t he cou rt ’s refusa l to requi re code f endan t Hardi n to testi f y be f ore t he jury, ( 3) t he co ur t ’s de nial of his re que st for a ne w at t or ney, a nd (4) i ne f f ec ti ve as si sta nc e of
coun sel
. F inding no rever sible error on these issues , we will affirm the judgment of the district court.
Fac ts

OnMay 2, 1999, officers of the Rio Concho D rug Task F orce ar rested Willie Lloyd, Jr. and his girlfr iend, Sara Har din (“ Hardi n” ), as they drove away from a par k known for2

drug trafficking. Officers then searched a motel r oom register ed in the name of Hardin pur suant to a warrant. T he room sea rch r evealed a Sentry lock box containing 198. 5 grams of cr ack cocaine in seve n sepa rate bags. Most of the cocaine was in lump form, but some had been cut into individual rocks for resale. The same box contained three large r ings , one with the name

“ Jim” inscribed on i

t. Testimony

at trial revealed th at Lloyd’s s treet-name or nickna

me was “ Jim Dandy. ” The box also contained a letter to “ Willie, ” who was referr ed to later in the body of the letter as “ Jim. ” Elsewhere i n the room, police found clothing consistent with Lloyd’s size (including men’s

boxer shorts), personal mai l, documents, and medication, all clearly mar ked as belonging to Lloyd. Police also uncovered a plate with a razor blade, paraphernalia com monly used for cutting lar ger chunks of cocaine into rocks that ar e then sold on the street for $20 each. Inaddition, police later r ecovered motel guest recor ds indicating that Lloyd’s moth er came to pick up the contents of the room after its occupants were arr ested.

Insearching the vehicle, police found a rental agr eement showing that the carwas leased to Lloyd, with

Hardin listed as an additional driver. In the vehicle’s trunk, they discovered
a second lo ck bo x c on ta in in g a dru g l ed ger, a GTE calling card with Ll oyd’s name on it, several pieces of men’s jewelry, and $3, 700 in cash. The keys to both lock boxes were found together with the keys to Lloyd’s leased vehicle. In addition, police fou nd $275 in

cash on Lloyd’s person. Lloyd was indicted for posse ssion o f between four grams and two-hundred grams of a controlled substance with intent to deliver. On January 20, 2000, a jury convicted Lloyd of3

this char ge. The judg e sentenced Ll oyd to fi fty year s’ confineme nt in the Institutional Division of the Texas

Department of Criminal Jus tice. Lloyd appe als the trial court’s judgmen

t.
Discussion Lloyd seeks review of (1) the factual and legal sufficiency of the evidence, (2) the
court ’sref

us al to req uire codefend

ant Hardin to testify before the jur y, (3) the court’ s denial of his reques t for a new attorney, and (4) his claim of ine ffective a ssis tance of c ounsel. Fir st, Lloyd co ntends that t he evidence was f act ually and

legally in sufficien

t to
su pp ort his conviction. In determining the legal sufficiency of the evidence to support a criminal conviction, we consider whether, after viewing the eviden ce in the light most favorable to the verdict, any rational tr ier of fact co uld have fo und the essentia l elements of the off ense beyond
a r eas onable do

ubt. Jacks on v. Virgin ia , 443 U. S. 307, 318-19 (1979) ; Geesa v. State , 820 S. W. 2d 154, 157 (Tex. Crim. App. 1991) ; Griffin v

. State , 614 S. W. 2d 155, 159 (Tex. Crim. App. 1981). In contrast, when conducting a factual sufficiency review, we consider “ all the evidence equally, includin g the testim ony of def ense witnesses an d the existence of alternative hypotheses. ” Orona v

. State , 836 S. W. 2d 319, 321 (Tex. App.

— Austin 1 992, no pet. )

. We will set aside a verdictfor factual insufficiency “only if it is so contrar y to the overwhelming weight of the evidence as to be cle arly wrong and unjus t. ” Clewis v. State , 922 S. W. 2d 126, 129 (Tex. Crim. A pp. 1996) ; St one v. State , 823 S
. W. 2d 375 , 381 (Tex. App.

— Aust in 199 2, pet. ref’d untim ely fi led).4 Inorder to prove the unla wful p oss ess ion of a

contr olled substance , the State must show that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew that

what he possess ed was contraband. Deshon g v. State , 625 S. W. 2d 327, 329 (Tex. Cri m. App. 1981). When the accused is not in exclusive possession of the place wh ere the controlled substances are found, additional facts and circumstances must be present that affirmatively

link the accused to t

he contrab and. Id. In making a determination of whether sufficientaffirmative links exist, each case must be r eviewed on it s own facts. Whitwo rth v. State , 808 S
. W. 2d 566 , 569 (Tex. App.

— Aust in 199 1, pet. ref’d). The recor d shows that

198. 5 grams of crack coc aine we re found in a lock

box in
a motel room r egistered to Lloyd’s gir lfriend. Some of the cocainehad been cut into individual rocks that are typi cally

used for r esale. There is also evidence showing that Lloyd was staying inthe motel room, including prescript ion medicine, personal mail i n his name , and c lothi

ng. In addition, the motel’s

busines s records indica

te that a fter Lloyd ’s arrest, his mothe r attempted to pick up the r oom’s cont ents.

Evidence that Lloyd had

access to the coc aine in the lock box includes the fact that the key to the box was

found in his

posse ssion on the sa

me chain as the k eys to th e vehicl e he was driving at the time

of his arrest. In addition, jewelry and a letter belongin

g to Lloyd were found in the same lock box as the coca ine. The second lock box, which wa s found in Ll oy d’ s v ehic le , of

fe rs fu rth er s uppo rt for the finding that Lloyd knew he possessed a c ontrolled substance and had a n int en t t o d el iv er. The key to this box was on the same c hain as the keys to the vehicle a nd the first lock box. The1 T he se su ms w er e p r imar ily in $ 20 de no minat io ns. T he av er ag e p r ice o f a r o ck o f co ca ine in San A ngel o is $20. The app ro ximate s t re et value o f the 198 .5 gr ams fou nd in t he firs t lo ck bo x is $39,000. 5 second box contained a drug ledger, a calling card with Lloyd’s name on it, several pieces of men’s jewelry, and $3, 700 in cash. The police also found $275 on Lloyd’s person. 1 Lloyd had no known, legitimate

employme

nt at the ti

me of his a

rr est. Taken as a whole, we conc lude that these fa cts and circumstanc es are suffic ient to create an affirmative lin

k betwee n Lloyd and the cocai

ne found in t

he motel room. See Deshong , 625 S. W .2 d at 329. On this basis, a rational jur y could have found that Lloyd exercised care, control, and management over the drug, and that he knew the cocaine was contraband. See id. Lloyd also contends t

hat the S tate did not sufficie ntly prove that the cocai

ne in his possession

weighed betwee n four grams and two-hundred grams. Specifically, he claims that the la bo rat ory testing process was flawed because after taking repr esentative samples from each of the bags found in

the lock box, the contents of the bags were combined before weighing. Th e re co rd shows that J. R. B urch of the Texas Depar tment of Public Safety Cr ime Laborator y followedan approved procedur e whereby he visually inspected the submitted substances and obs erved them to be si mil ar ma

te rial
. He then analyzed

a portion fr om each of the submitted bags of suspected cocaine to make sure they were all the same substance . O n ce th es e t ests

we re d on e, the en tire contents wer e co mbined for the r emainder of the testing, resulting in a total weight of 198. 5 gram s. In Gabrie l v. State , the court found that when only five of fifty-four bags of crack cocaine had been scientifically tested and found to be ninety- nine p ercent cocaine, and the6

remaining bags had been

judged identical on visual inspection, “ [i]t was rational for the fact finder to conclu de that id enticall y packaged substances, which ap pear to be the s ame sub stance , are in fact the same substance
. ” Gabriel v. State, 900 S. W. 2d 721, 722 (Tex. Cri m. App. 1 995)
. Gabriel further held that “ [t]he manner of testing the subs tances by random samp ling goes only to the weight the jury may give tothe tes ted subs tances in determining th e untes ted subs tance is the same as the tested substance. ” Id. Accordingly, the jury in this case was free to accept the evidence givenby the chemist and find that Lloyd possessed between four grams and two-hundr ed grams of cocaine
. See id . T h is is especially true given that the weight determined by the la bo rat ory was 198. 5 gr ams, near the maximum of the possess ion category with which Lloyd was charged. When viewe d in the ligh t most favorable to the prosec ution, we find tha

t th i s evidence is lega

llysufficient to support the jur y’s finding that Lloyd possessed between four grams and tw o- hu nd re d grams of coca

ine, that he ha

d knowled

ge of the c ontrolled subs tance in his possession, and that h e intende d to delive r it. See Jackson , 443 U. S. at 3 18-19; Geesa, 820 S. W. 2d at 157. Viewing all of the evidence, we do not conclude that the jury’ s finding i s so
co nt rary to the overwhelming weight of the evidence as to be wrong or unjust. See Clewis, 922 S. W. 2d at 129. We overr ule Lloyd’s legal and factual challenges to the sufficiency of the evidence. Llo yd’s next issue concerns the refusal of the court to r equire the testimony of code fendantHardin bef

ore the j ury. The reco rd show s tha t Lloyd call ed Hardin t

o tes tify in a hearing outs ide the jury’s

presence. During this hearing, Hardin invoked her Fifth Amendment7

rig hts. At the conclusion of the hearing, the cour t, defe nse counsel , and the State agreed that Hardin should not invoke her constitutional right to r efuse to testify in front of the jur y. We find tha t the case l aw on this issue does not support Lloyd’s contention of er ror . “ [T]his court has rep eatedly

he ld that a d

efendant has no right to have a wi tness asse rt or invoke his Fifth Amendment

privilege against self-incri mination in the presence of the jury. ” Ellis v. State , 683 S. W. 2d 379, 382 (Tex. Cri m. App. 1984) (citations omitted); see Mendoz a v. State , 552 S. W. 2d 444, 450 (Tex. Crim. App. 1977) ; Rodri guez v . State , 513 S. W. 2d 594, 596 (Tex. Cri m. App. 1974) (finding that

when witness ta

kes Fifth Amendmen

t, refusal to testify a

lone can not be bas is of any inference by jur y). Accordingly, we overr ule Lloyd’s second issue.

The final two issues raised by Lloyd involve the adequa cy of c ounsel. Lloyd contends that the trial c ourt’s denial o f his request for a new attorney co nstitute d a denia l of his right to counsel. Additionally, he argue s that the failure of his counsel to object to the insufficiency of the evidence and to the court ’sref us al to req uire t he te st im on y o f Ha rdi n b ef ore the jury amounte d to ineffec tive as sista nce of cou

nsel. A defendant has the constitutional right to either retain counsel or have an attorney appointed by the cou

rt. See Tex. Const
. art. I, § 10. In this ca se, Lloyd chos e to retain cou nsel. The recor d shows that

Lloyd voice d his dis

pleasu re with his retained counsel at a pretr ial hearing held January 4, 2000, two weeks before the start of trial. As reasonfor his complaint, Lloyd cited both a general lack of attorney-clie nt communic ation and

the refusal of hi s couns el to file c ertain motions. Upon fur ther questioning, Lloyd revealed t hat he wa nted his counse l to file a motion to drop the intent to deliver charge. The trial court responded th at the S tate woul d be unlike ly to8

agree to su

ch a req ues t and that s uch a motio n wou

ld be ill-ad vise d. Th e cour t also informed Lloyd that he had a good attorney and to think seriously befor e making a change. Lloyd did not speak further on the issue and did not revisit the matter at subsequent hear ings or at tr ial. B ecause the recor d shows that Lloyd was represented by counsel both before and at trial, we do not find that Lloyd has preserved an issue regar ding his right to counsel for us to review.

Inorder to show ineffectiv e a ssistance of counse l, defendant must satisfy a twopronged test. Exparte

Welborn , 785 S
. W. 2d 391 , 393 (Tex. Crim. App. 1990) ; Hernandez v. State , 726 S. W. 2d 53, 55 (Tex
. Crim. App. 1986) ; Strickland v. Washington , 466 U. S. 668, 687 (1984 ). Th e b en ch

ma rk for judging an y claim of

ineffect iveness is whether counsel’s cond uct so undermined the proper functioning of the adve rsarial process tha

t the trial cann

ot be relied on t

o have pro duced a just result. Welborn , 785 S. W. 2d at 393 ( citations om itted). The appli cable test requir es showing

th a t (1) defense counsel’s perfor mance was deficient, and (2) the deficient perfor mance prejudiced the defense. Id. The prejudice pr ong requir es the defendant to show that th ere is a reasonable probabi lity that , but for counsel’s unpr ofessional error s, the result of the proceedings would hav e been d ifferent. Id. In this case, Lloyd bases his claim of deficiency on his counsel’s failure to ob j ect to the

sufficien cy of the e

vidence and to the

court’s refusal to req uire Ha rdi n’ s t esti mo ny . Ho wever, w e conclude that the trial court and case law supported def ense counsel ’s position on both issues. As noted above, the court cor rectly admitted the evidence of the weight of the drug in L loyd’s possession a nd r efus ed to requir e codefendant Hardin to invoke her F ifth Amendment right in f ront of the ju

ry . See Gabriel , 900 S. W. 2d at 722; Ellis , 683 S. W. 2d at 382. These are the only grounds on which Lloyd bases his contention9

of ineffective assistance of

counse l. Neither issue c ontains a point of e

rr or which is reversible

on appeal. See Gabriel , 9 0 0 S. W. 2d at 722; Ellis , 683 S. W. 2d at 382. Therefor e, Lloyd cannot sati sfy the f irst pr ong of the requisite test by showing that defense counsel’s performance was deficient
. See Welborn , 785 S. W. 2d at 393. Accordingly, we hold that the record does not support a cla

im of ineffect

ive ass istanc e of couns el.

Conclusion Having determined that the evidence supports the tr ial court’s ver dict, we af fi rm the convicti on of Willie

Lloyd, Jr. for possession of a controlled su bs ta nc e wit h int en t t o d el iv er.

Mack Kidd, Justice B efore Justices Jones, Kidd and Yeakel Affirm ed F iled: November 2, 2000 Do N ot Pu blish