Opinion filed June 12, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00257-CR

                                                      _________

                           BRANDY DANNA WILLIAMSON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 422nd District Court

                                                       Kaufman County, Texas

                                                Trial Court Cause No. 22246-422

                                             M E M O R A N D U M   O P I N I O N

The jury convicted Brandy Danna Williamson of possession of more than 400 grams of cocaine with intent to deliver.  The trial court assessed her punishment at fifteen years confinement.  We affirm.

I. Background Facts

Kaufman County Deputy Sheriff Brad Brewer was on patrol when he noticed a car without a working license plate light.  He stopped the car, and as he approached, he smelled burnt marihuana. There were two people in the car: Williamson, who was driving, and Tammy Merritt.  Williamson consented to a search of the vehicle.  Deputy Brewer found marihuana in the passenger compartment and two plastic shopping bags with what appeared to be cocaine hidden under the spare tire cover in the trunk.  A Department of Public Safety crime lab determined that the bags contained 760.52 grams of cocaine with a purity level of 81%.^[1]

II. Issues on Appeal

Williamson challenges her conviction with two issues.  Williamson contends that her trial counsel was constitutionally ineffective for not objecting to the charge because it did not include the lesser included offense of simple possession.  Alternatively, Williamson argues that the evidence was legally and factually insufficient to link her to the cocaine found in the trunk of her car.

                                                                    III.  Analysis

A.  Was Counsel Constitutionally Ineffective?

Williamson was indicted for one count of possession of more than 400 grams of cocaine with intent to deliver.  This was the only offense contained in the charge.  Williamson argues that trial counsel was constitutionally ineffective for not objecting to the omission of an instruction on the lesser included offense of simple possession because this deprived her of the opportunity to receive community supervision.

1.  Standard of Review.

In order to determine whether Williamson=s trial counsel rendered ineffective assistance at trial, we must first determine whether she has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors.  Strickland v. Washington, 466 U.S. 668 (1984).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and Williamson must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).  An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s representation was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.  Id.

                        2.  The Trial Court=s Charge.

Williamson contends that no reasonable trial strategy was served by not objecting to the omission of a lesser included instruction.  Essentially, Williamson argues that this placed the jury in an Aall or nothing@ position.  Even if that might be considered a reasonable strategy in some instances, Williamson reasons that, because over 700 grams of cocaine was found in her car, acquittal was unlikely in this case.  However, if the jury had been given the option to find her guilty of simple possession, it might have concluded that she was sufficiently linked to the cocaine to establish possession but determined that she was not part of a drug distribution network.

Williamson argues that she was harmed because trial counsel=s decision foreclosed any possibility of community supervision since the minimum sentence for the charged offense was fifteen years.  The minimum sentence for simple possession of over 400 grams, on the other hand, was only ten years.  Because the trial court gave her the minimum possible sentence, Williamson concludes that a reasonable possibility exists that the inclusion of a lesser included instruction in the charge would have resulted in community supervision rather than incarceration.

The State responds that Williamson was not entitled to a lesser included charge because she denied any wrongdoing and directs our attention to Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001). There, the court wrote that a Adefendant=s own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense.@  Id. at 652; see also Garcia v. State, 218 S.W.3d 756, 762 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (defendant charged with possession of cocaine with intent to deliver was not entitled to an instruction on the lesser included offense of simple possession when he denied knowing about or possessing the cocaine).

We agree with the State that Williamson was not entitled to an instruction on simple possession.  Williamson testified in her own defense.  She repeatedly denied knowing why Charles Fountain, her boyfriend, wanted her to accompany him to Dallas or that he had placed cocaine in her trunk.  If the jury had believed her testimony, it would not have found her guilty of only possession but would have acquitted her of any criminal conduct.  Consequently, Williamson was not entitled to a lesser included instruction, and trial counsel was not constitutionally ineffective for failing to request one.  Issue one is overruled.

B.  Was the Evidence Legally and Factually Sufficient?

Williamson next challenges the legal and factual sufficiency of the evidence linking her to the cocaine found in her trunk.  Williamson argues that the only evidence that she exercised actual care, custody, or management of the cocaine or knew that she had cocaine was the fact that it was found in the trunk of her car and urges us to find that this is insufficient evidence to uphold her conviction.

1.  Standard of Review.

To determine if the evidence is legally sufficient, we review all of 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).  The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness=s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Id. at 414-15.

2.  Legal Sufficiency.

The State was required to prove that Williamson exercised control, management, or care over the cocaine found in her car and that she knew that the material in her trunk was contraband.  Brown v. State, 243 S.W.3d 141, 148 (Tex. App.CEastland 2007, pet. ref=d).  The State must also establish that Williamson=s connection with the cocaine was more than fortuitous.  Texas courts utilize an affirmative link rule that is designed to protect innocent bystanders from conviction merely because of their proximity to someone else=s drugs.  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).  This rule is not an independent test of legal sufficiency, but a short-hand catchphrase for a large variety of circumstantial evidence that may be considered. Id. at 161-62 n.9.^[2]  It is not the number of factors that link the defendant to the contraband but the logical force of all the evidence, direct and circumstantial, that must be considered.  Id. at 162.

Viewing the evidence in the light most favorable to the verdict, a rational juror could have considered that Williamson owned the car, that she was driving the car at the time of the stop, that she told Deputy Brewer at the scene that she and Merritt had driven to Dallas to drop off a friend but testified at trial that she had been unwittingly used by her boyfriend to transport drugs, that a large quantity of very pure cocaine was found in her trunk, that her initial demeanor was calm when stopped even though Deputy Brewer told her that he smelled marihuana, that she became more nervous as Deputy Brewer=s search extended to the trunk, and that she dropped her head when he pulled the bags containing the cocaine out of her trunk.  This is legally sufficient evidence to sustain Williamson=s conviction.

3.  Factual Sufficiency.

 Consideration of all of the evidence in a neutral light requires that we also consider Williamson=s trial testimony.  She testified that her boyfriend of five or six months, Fountain, called her at work one day and asked if he could use her car to go to Dallas.  She was busy and did not ask any questions but simply said okay.  She got off work thirty minutes to an hour later; went home and changed clothes; and invited her roommate, Merritt, to come along.  They drove to a nearby town and met Fountain and an unknown friend of his.  Williamson then followed Fountain to Dallas.  She never discussed the trip with him but simply assumed they were going to Dallas to get parts for his vehicle.  The trip to Dallas lasted five to six hours.  In Dallas, Williamson followed Fountain to a residence.  It was nighttime by then, and Williamson and Merritt stayed in her car while Fountain went inside.  Twenty to thirty minutes later, he came back and knocked on her trunk.  She opened

it from within the car.  He shut the trunk without saying anything, got back in his vehicle, and started to leave.  She followed him out of Dallas because she was unfamiliar with the area.

Williamson testified that she was unaware that Fountain placed cocaine in her trunk.  She testified that he never told her what he had planned, that she never saw him use cocaine, and that she never suspected that he might be involved with cocaine.  She testified that she had no criminal record and that she consented to Deputy Brewer=s search because she did not know there was anything in the car.

Williamson describes her testimony as uncontroverted and understandably would have this court draw favorable conclusions from this proposition.  However, there is a distinction between undisputed facts and uncontradicted testimony.  Evans, 202 S.W.3d at 163.  The jury is not required to believe uncontroverted testimony.  They could, for example, consider the possible bias of wanting to avoid imprisonment.  The jury could consider how plausible Williamson=s explanation for the trip sounded^[3] and could contrast the story she gave at trial with the story she gave Deputy Brewer at the scene.  For any or all of the reasons, a rational juror could find Williamson=s testimony untrustworthy.  Because a rational juror could have disbelieved Williamson=s testimony, we are required to assume that the jury did so.  See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (when conducting a sufficiency review, an appellate court must consider all of the evidence admitted at trial and give it whatever weight and probative value it could rationally convey to a jury).

There was factually sufficient evidence that Williamson had possession of the cocaine found in her trunk.  The evidence supporting the jury=s verdict is neither so weak that the verdict is clearly wrong and manifestly unjust nor is the verdict against the great weight and preponderance of the conflicting evidence.  Issue two is overruled.

IV. Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

June 12, 2008

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.