Opinion issued June 16, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-25-00105-CR
RODNEY WAYNE GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1587483
MEMORANDUM OPINION
Rodney Wayne Gray pled guilty to possession of a controlled substance and
was placed on deferred-adjudication community supervision. The State
subsequently filed a motion to adjudicate Gray’s guilt, alleging violations of the
terms of his community supervision. After an evidentiary hearing, the trial court found true the allegation that Gray violated his community supervision by
committing the offense of unlawful carrying of a weapon under Texas Penal Code
Section 46.02. The trial court adjudicated Gray guilty and sentenced him to eight
years’ imprisonment.
In his sole issue on appeal, Gray argues the evidence is insufficient to support
the trial court’s finding that he committed the unlawful-carrying offense and,
therefore, the court abused its discretion in adjudicating his guilt.
Viewing the record in the light most favorable to the ruling, as we are
instructed to do, we conclude that the State proved by a preponderance of the
evidence that Gray violated a condition of his community supervision by committing
the offense of unlawful carrying of a weapon. The trial court therefore did not abuse
its discretion in adjudicating guilt. We affirm the trial court’s judgment.
BACKGROUND
A. While he was on community supervision, Gray was arrested.
In 2018, Gray pled guilty to possession of methamphetamine (4–200 grams).
See TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.115(a), (d). The trial court
deferred adjudication and placed Gray on community supervision for five years with
standard conditions, including the requirement that Gray “[c]ommit no offense
2
against the laws of this or any other State or of the United States.”1 In 2023, Gray’s
term of supervision was extended for one year with a new expiration date of August
2024.
Gray was arrested in February 2024 after police officers responded to an alert
for a stolen vehicle and located it in a bar parking lot. After observing Gray and a
companion, Charity Whitmore, return to the vehicle and begin to drive, officers
conducted a felony stop and arrested Gray and Whitmore. Officers conducted a
search of the vehicle and found a handgun along with a bag that contained the
following:
• a substance that the arresting officer testified he believed to be
methamphetamine packaged in small baggies;
• empty small baggies;
• a scale;
• cash; and
• a debit card with Gray’s name on it.
B. The State moved to adjudicate guilt, and the trial court held a hearing on
the State’s motion.
Following Gray’s arrest, the State filed a motion to adjudicate guilt alleging
three violations of the terms of Gray’s community supervision, each based on the
commission of a new offense. Specifically, the State alleged that Gray committed
1
Additionally, Gray was not to “ship, transport, possess, receive, or purchase a
firearm” as a condition of community supervision.
3
the new offenses of (1) unlawfully carrying a weapon, Texas Penal Code Section
46.02(a‑1); (2) unauthorized use of a vehicle, Texas Penal Code Section 31.07; and
(3) possession with intent to deliver a controlled substance, Texas Health & Safety
Code Section 481.112.
Proof of only a single violation is required to adjudicate guilt. See Smith v.
State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Bell v. State, 649 S.W.3d 867,
898 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d).
During the hearing on the State’s motion to adjudicate, arresting officer, C.
Seidel, testified that officers found a car that had been reported stolen, called the
owner of the vehicle to confirm it had been stolen, and “waited and watched” it for
about two hours.2 Seidel explained that the officers observed two individuals,
identified as Gray and Whitmore, walk back and forth between the car and the bar
multiple times. Eventually, Gray entered the driver’s seat and began to drive.
Officers then conducted a felony stop and took Gray and Whitmore into custody.
Seidel testified that the officers searched the vehicle and found a handgun in
a holster between the driver’s seat and the middle console. He testified they also
found a bag under the driver’s seat that contained what he recognized to be “crystal
methamphetamine” packaged in small baggies, empty small baggies, a scale, cash,
2
The owner of the vehicle did not appear or testify. But one of Gray’s witnesses,
Ruben Maldonado, testified that he gave Gray the key and permission to drive the
vehicle.
4
and a debit card with Gray’s name on it. Seidel further testified that the
circumstances were consistent with Gray selling narcotics, including: Gray walking
to and from the car, the small packaging of the narcotics, the cash, and the scale.
The State introduced Officer Seidel’s body‑camera footage, which was
consistent with his testimony. The video shows officers searching the vehicle and
finding a handgun and a bag containing alleged methamphetamine packaged in small
baggies, additional empty baggies, a scale, cash, and debit card.
In the recording, Gray admitted to Officer Seidel that the gun was his and that
he knew drugs were in the car. He denied the drugs were his and denied knowing
the car was stolen.
Gray and Whitmore also testified at the hearing. Gray admitted that he knew
the car contained a gun and methamphetamine. Gray stated Whitmore found “some
stuff that she was sure was methamphetamine.” Gray testified, however, that the gun
belonged to Whitmore and that he lied to officers when he initially told them the gun
belonged to him. Whitmore testified the gun belonged to her.
As discussed in greater detail below, the trial court found it “true” that Gray
violated his community supervision by committing the offense of unlawful carrying
of a weapon. The trial court found “not true” as to unauthorized use of a vehicle, and
the trial court declined to enter a “true” or “not true” finding as to possession with
intent to deliver a controlled substance (stating that it was “not proven”).
5
The trial court adjudicated Gray guilty on the original drug case and sentenced
him to eight years’ imprisonment. Gray appealed.
DISCUSSION
In his sole issue on appeal, Gray contends the evidence is insufficient to
support the adjudication of his guilt based on the unlawful carrying of a weapon
offense. We disagree and affirm.
A. Standard of Review
A trial court’s decision to adjudicate guilt after deferred adjudication is
reviewed for an abuse of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex.
Crim. App. 2013); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In
determining whether the trial court abused its discretion, we review the evidence in
the light most favorable to the trial court’s decision. See Cardona v. State, 665
S.W.2d 492, 493 (Tex. Crim. App. 1984); Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981); Bell, 649 S.W.3d at 898. The trial court is the
sole judge of the witnesses’ credibility and the weight to give the evidence. Hacker,
389 S.W.3d at 865.
On a motion to adjudicate guilt (unlike in other criminal contexts), the State
has the burden to prove a defendant violated a condition of community supervision
by a preponderance of the evidence. Rickels, 202 S.W.3d at 763–64. The State
satisfies this burden when the greater weight of credible evidence before the trial
6
court creates a reasonable belief that it is more probable than not that the defendant
has violated a condition of community supervision. See id.; Black v. State, 411
S.W.3d 25, 28 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In other words, in
the case of a new law violation for purposes of revocation of community supervision
(and adjudicating guilt), as was alleged here, “proof of a final conviction [on the new
violation] is not necessary so long as the State proves by a preponderance of the
evidence that the new law violation was committed.” Medina v. State, 555 S.W.3d
581, 590 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
As explained above, proof of a single violation of a community-supervision
condition is sufficient to support revocation. See Smith, 286 S.W.3d at 342; Bell, 649
S.W.3d at 898. If the State fails to meet its burden of proof, the trial court abuses its
discretion by revoking community supervision. Cardona, 665 S.W.2d at 493–94.
B. The trial court did not abuse its discretion in adjudicating guilt: the State
proved by a preponderance of the evidence that Gray violated a condition
of his community supervision by committing the offense of unlawful
carrying of a weapon.
The trial court did not abuse its discretion: the State proved by a
preponderance of the evidence that Gray violated his community supervision by
committing the offense of unlawful carrying of a weapon.
7
1. Under Section 46.02, one way to commit the offense of unlawful
carrying of a weapon is to carry the weapon while (among other
things) being “engaged in criminal activity.”
Unlawful carrying of a weapon is codified in Texas Penal Code Section 46.02.
Section 46.02(a-1) prohibits carrying handguns in motor vehicles under certain
circumstances. It provides, in relevant part:
A person commits an offense if the person intentionally, knowingly, or
recklessly carries on or about his or her person a handgun in a motor vehicle
. . . under the person’s control at any time in which:
(2) the person is:
(A) engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating
traffic or boating[.]
TEX. PENAL CODE § 46.02(a‑1)(2)(A).3 Gray does not dispute that officers found a
handgun in a vehicle he controlled and that he knowingly carried it on or about his
person. He instead contends the evidence is insufficient to show he was “engaged in
criminal activity” at the time. In other words, he argues that the State did not prove
by a preponderance of the evidence that he was engaged in criminal activity at the
time. We disagree.
3
The State did not allege that Gray violated the supervision condition prohibiting him
from possessing a firearm, nor did it allege that he was otherwise prohibited by law
from possessing one. Instead, the State proceeded solely on a new law allegation
that Gray committed unlawful carrying of a weapon under Texas Penal Code
Section 46.02(a‑1)(2)(A). We therefore confine our analysis to that provision.
8
2. Section 46.02’s “engaged in criminal activity” language broadly
includes criminal action, other than that expressly excluded by the
statutory terms.
The Legislature adopted the “engaged in criminal activity” language of the
Penal Code in 2007.4 “Criminal activity” is not defined in Chapter 46. See TEX.
PENAL CODE § 46.01 (definitions). Therefore, we interpret the term in accordance
with the statute’s plain meaning. See Edwards v. State, 666 S.W.3d 571, 575 (Tex.
Crim. App. 2023).
When determining the plain meaning of an undefined statutory term, courts
may consult dictionary definitions; we also read words in context and apply rules of
grammar. See Edwards, 666 S.W.3d at 575 (“When there is no definition or technical
meaning provided for a word or phrase, the terms are typically given their plain and
ordinary meaning. In determining the plain meaning of an undefined statutory term,
we can consult dictionary definitions, and we must read words in context, and apply
rules of grammar.”) (cleaned up).
“Criminal” means “of the nature of or involving crime,” or “of or pertaining
to crime or its punishment.” Criminal, RANDOM HOUSE WEBSTER’S UNABRIDGED
DICTIONARY (2d ed. 2001); see also Criminal, MERRIAM-WEBSTER.COM
4
See Act of May 23, 2007, 80th Leg., R.S., ch. 693, § 1, 2007 Tex. Gen. Laws 1318,
1318 (codified at TEX. PENAL CODE § 46.02(a-1)(2)(A)).
9
DICTIONARY, https://www.merriam-webster.com/dictionary/criminal (last visited
May 19, 2026) (“Criminal” means “relating to, involving, or being a crime.”).
“Activity,” in turn, means “a specific deed, action, function, or sphere of
action.” Activity, RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY (2d ed.
2001); see also Activity, MERRIAM-WEBSTER.COM DICTIONARY,
https://www.merriam-webster.com/dictionary/activity (last visited May 19, 2026)
(defining “activity” as “the quality or state of being active: behavior or actions of a
particular kind”).
Section 46.02(a-1) further provides that not all “criminal activity” qualifies;
instead, the “criminal activity” at issue must be something “other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic or boating.”
TEX. PENAL CODE § 46.02(a-1)(2)(A). Beyond this, the statute does not limit the
meaning of the term “engaged in criminal activity.”
Thus, applying the plain text, and as Texas courts have concluded, “criminal
activity” in Section 46.02(a‑1) broadly encompasses criminal action or function,
other than a Class C misdemeanor violation of a law or ordinance regulating traffic
or boating. See id.; see also, e.g., Rodriguez v. State, No. 14-23-00780-CR, 2024
WL 4234265, at *2–3 (Tex. App.—Houston [14th Dist.] Sept. 19, 2024, no pet.)
(mem. op., not designated for publication) (misdemeanor possession of drug
paraphernalia was criminal activity for unlawful-carrying prosecution); State v.
10
Villanueva, 672 S.W.3d 189, 194 (Tex. App.—Fort Worth 2023, pet. ref’d) (driving
while intoxicated, a misdemeanor, was criminal activity for unlawful-carrying
prosecution).5
Notably, the Court of Criminal Appeals and other courts applying the identical
phrase “engaged in criminal activity” in a different statute, Texas Penal Code
Section 9.32 (which contains a similar statutory limitation),6 have similarly
interpreted the phrase to broadly include criminal behavior other than that expressly
5
See also, e.g., Brown v. Stensland, No. CV H-25-2908, 2026 WL 739666, at *10
(S.D. Tex. Feb. 11, 2026) (under Texas law, possession of marijuana is criminal
activity under unlawful-carrying statute), mem. & r. adopted, 2026 WL 738621
(S.D. Tex. Mar. 13, 2026); Sumrall v. State, Nos. 12-20-00215-CR & 12-20-00216-CR, 2021 WL 4057247, at *6 (Tex. App.—Tyler Aug. 25, 2021, no pet.) (mem. op.,
not designated for publication) (driving with invalid and suspended license after
prior conviction for doing so was criminal activity); Gandee v. State, No. 13-18-00343-CR, 2019 WL 5609703, at *4 (Tex. App.—Corpus Christi–Edinburg Oct.
31, 2019, no pet.) (mem. op., not designated for publication) (rejecting defendant’s
argument that driving while intoxicated was not criminal activity within the
meaning of the unlawful-carrying statute).
6
Section 9.32 provides in relevant part as follows:
(b) The actor’s belief under Subsection (a)(2) that the deadly force was
immediately necessary as described by that subdivision is presumed to be
reasonable if the actor:
(1) knew or had reason to believe that the person against whom the
deadly force was used: . . . ;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class
C misdemeanor that is a violation of a law or ordinance regulating
traffic at the time the force was used.
TEX. PENAL CODE § 9.32(b) (emphasis added).
11
excluded by that statute. See, e.g., Villarreal v. State, 453 S.W.3d 429, 440 (Tex.
Crim. App. 2015) (concluding that defendant was engaged in criminal activity when
he threatened victim with physical harm in violation of Texas Penal Code Section
22.01(a)(2)); Reyna v. State, 597 S.W.3d 604, 606–07 (Tex. App.—Houston [14th
Dist.] 2020, pet. ref’d) (treating cocaine possession as “criminal activity” and
agreeing that term “encompass[es] any activity that constitutes a crime” (quoting
Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. ref’d))).
Under Section 46.02(a-1)’s terms and Texas caselaw, the State must prove
engagement in “criminal activity” as part of the unlawful‑carrying offense. See TEX.
PENAL CODE § 46.02(a‑1); Watts v. State, 371 S.W.3d 448, 460 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (to convict for unlawfully carrying a weapon,
the State must prove “appellant intentionally or knowingly carried on or about his
person a handgun in a motor vehicle at a time . . . when appellant was engaged in
criminal activity”); see also Villanueva, 672 S.W.3d at 194 (explaining that the
elements of Section 46.02(a-1) include “the elements of the criminal activity” itself).
But nothing in Section 46.02(a-1) requires the State to obtain a conviction for
that underlying criminal activity—rather than to just prove it (under the applicable
standard of proof). See TEX. PENAL CODE § 46.02(a‑1).7
7
Section 46.02(a-1) is structurally similar to the organized crime statute in Texas
Penal Code Section 71.02, under which Texas courts likewise recognize that the
State may prove the predicate offense as part of the prosecution for engaging in
12
3. The evidence supports a reasonable belief that it is more probable
than not that Gray was “engaged in criminal activity” at the time
he carried a handgun.
This record supports a reasonable belief that Gray was “engaged in criminal
activity” related to narcotics8 at the time he carried a handgun: possession of a
controlled substance, or, at the least, attempted possession of a controlled substance.
To be clear, this is true when setting aside the other offenses the State alleged here:
unauthorized use of a vehicle under Texas Penal Code Section 31.07 and possession
with intent to deliver a controlled substance under Texas Health & Safety Code
Section 481.112.
organized criminal activity itself. See, e.g., Crumpton v. State, 977 S.W.2d 763, 770
(Tex. App.—Fort Worth 1998, no pet.) (State “utilized the theft offense as the
underlying offense to prosecute organized criminal activity”); McBride v. State, 803
S.W.2d 741, 744 (Tex. App.—Dallas 1990, pet. ref’d) (explaining that “[n]either
the applicable statute nor the case law require a conviction on an underlying
offense” to convict defendant for engaging in organized criminal activity). 8
In the trial court, Officer Seidel attested that carrying a weapon becomes unlawful
when a person carries a handgun while committing other criminal activity and that
the other criminal activity here was narcotics-related:
Q. Okay. So carrying the weapon in and of itself isn’t a crime but doing it
while you're committing other criminal activities then makes it a crime; is
that right?
A. Yes, sir.
Q. Okay. And the other criminal activity in this case would be the narcotics?
A. Yes, sir.
The State also argued in closing, as to “possession of the controlled substance,” that
Officer Seidel—relying on his training and experience—identified the substance as
crystal methamphetamine.
13
a. Possession
Start with possession of a controlled substance. Simple possession of a
controlled substance (e.g., methamphetamine) is a lesser-included offense of
possession with intent to deliver. See TEX. HEALTH & SAFETY CODE
§§ 481.102(6), 481.115(a) (PG‑1 possession); cf. id. § 481.112(a) (possession with
intent to deliver); see also Upchurch v. State, 23 S.W.3d 536, 538 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d) (possession is a lesser-included offense of
possession with intent to deliver).9 For these purposes, we focus on the offense of
mere possession.
First, possession of methamphetamine qualifies as criminal activity under the
plain terms of Section 46.02(a‑1)(2)(A). It is criminal behavior or a criminal action,
as Texas courts have concluded. See, e.g., Rodriguez, 2024 WL 4234265, at *2–3
(possession of drug paraphernalia, a “one-hitter” pipe, was “engaging in criminal
activity”).
So the question becomes, did the State show by a preponderance of the
evidence that Gray was engaged in such criminal activity at the time? The answer is
yes.
9
See also Beasley v. State, 426 S.W.3d 140, 144 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (notice of the State’s intent to prosecute the defendant for a greater
offense generally conveys notice of lesser-included offenses); Lyons v. State, 222
S.W.3d 658, 659–60 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (similar as to
assault and attempted assault).
14
A person commits the offense of unlawful possession of a controlled
substance if he (1) exercised control, management, or care over the substance in
question and (2) knew the matter possessed was contraband. See TEX. HEALTH &
SAFETY CODE §§ 481.002(38), 481.115(a) (criminalizing possession, which is
defined as “actual care, custody, control, or management”); Tate v. State, 500
S.W.3d 410, 413 (Tex. Crim. App. 2016); Burrell v. State, 445 S.W.3d 761, 764
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
Mere presence in the same place as the controlled substance is insufficient to
justify a finding of possession. See Tate, 500 S.W.3d at 413–14. But presence or
proximity, when combined with other direct and circumstantial evidence—
“affirmative links”—can establish knowing possession, and it is the logical force of
the combined links, not their number, that controls. See id.; Burrell, 445 S.W.3d at
764–65.10 In the community-supervision context applicable here, Texas courts have
10
In Burrell, this Court considered the following non-exhaustive list of affirmative
links:
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotics; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether
the defendant made incriminating statements when arrested; (7)
whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs
15
confirmed that, under the preponderance standard, possession may be proven
through direct or circumstantial affirmative links. See, e.g., Black, 411 S.W.3d at
28–30.
Here, Gray did not dispute that the substance found in the car with him was
methamphetamine. He admitted he knew methamphetamine was in the vehicle. And
Officer Seidel similarly testified that, based on his training and experience, the
substance was methamphetamine.
Instead, Gray argued that the methamphetamine was not his. But Officer
Seidel testified that the substance was found in the same bag as Gray’s debit card,
under the driver’s seat, within his immediate reach.
It was for the trial court to decide credibility and the weight of conflicting
evidence. See Hacker, 389 S.W.3d at 865. And under binding precedent, we are to
view the evidence in the light most favorable to the ruling. See Cardona, 665 S.W.2d
at 493; Bell, 649 S.W.3d at 898.
Under Texas law, the evidence that Gray controlled the vehicle, his admission
that he knew the substance was methamphetamine and that he knew there was
were found was enclosed; (13) whether the defendant was found with
a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt.
445 S.W.3d at 765 (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.
App. 2006)).
16
methamphetamine in the car (as well as the officer’s testimony as to the substance),
and the fact that the substance at issue was intermingled with his personal items (in
the same bag as his debit card), under his seat and within his reach, supplied the
“affirmative links” from which the trial court could have found by a preponderance
of the evidence that Gray was in possession of a controlled substance. See TEX.
HEALTH & SAFETY CODE § 481.115(a); Tate, 500 S.W.3d at 415–18 (reinstating
possession conviction and holding that meth and syringe found in vehicle that
defendant was driving—in plain view and within his reach—together with other
circumstances furnished sufficient affirmative links); Burrell, 445 S.W.3d at 765–
67 (sufficient affirmative links connected defendant to cocaine, and evidence
supported finding defendant exercised care, custody, or control over cocaine); Black,
411 S.W.3d at 28–30 (affirmative links established possession under the
preponderance standard to revoke community supervision; evidence showed
defendant was in control of vehicle, had physical characteristics indicating
consumption of marijuana, acted suspiciously, and marijuana was concealed in
multiple layers of bags in trunk of car).
On this record—and acting as the sole judge of credibility and weight of the
evidence—the trial court could have reasonably found, by a preponderance of the
evidence, that Gray was engaged in criminal activity (methamphetamine
possession), thereby satisfying Section 46.02(a‑1)(2)(A). See Hacker, 389 S.W.3d
17
at 865; Rodriguez, 2024 WL 4234265, at *2–3 (officer testimony and defendant’s
admissions sufficed to establish “criminal activity” for unlawful-carrying
prosecution, even though the State did not separately charge paraphernalia
possession or receive laboratory results); Sterling v. State, 791 S.W.2d 274, 276–77
(Tex. App.—Corpus Christi–Edinburg 1990, pet. ref’d) (permitting officer
identification of controlled substances without chemical analysis and resting
revocation, in part, on that evidence).
b. Attempted possession
Moreover, even if we were to assume the record did not show by the
preponderance of the evidence possession of a controlled substance, we could
conclude that this record shows by a preponderance of the evidence the elements of
attempted possession, which nonetheless supports affirming.
Attempted possession of a controlled substance is a lesser-included offense of
possession. See TEX. CODE CRIM. PROC. art. 37.09(4) (an offense is a lesser-included
offense if it consists of an attempt to commit the offense charged); TEX. PENAL CODE
§ 15.01 (attempt statute); TEX. HEALTH & SAFETY CODE § 481.108 (incorporating
Penal Code Title 4 (which includes attempt) into Chapter 481 offenses); id.
§ 481.115(a) (PG-1 possession); see also Ex parte Mable, 443 S.W.3d 129, 130–31
(Tex. Crim. App. 2014) (recognizing attempted possession of a controlled substance
as a lesser‑included offense of possession).
18
A person commits attempted possession of a controlled substance if (1) he had
the specific intent to possess a controlled substance, (2) he took some overt act
amounting to more than mere preparation, and (3) the act tended but failed to effect
the intended possession. See TEX. PENAL CODE § 15.01(a); TEX. HEALTH & SAFETY
CODE § 481.115(a); Giddings v. State, 816 S.W.2d 538, 540 (Tex. App.—Dallas
1991, pet. ref’d); Rivas v. State, 787 S.W.2d 229, 231–33 (Tex. App.—Corpus
Christi–Edinburg 1990, pet. ref’d); see also Graff v. State, 65 S.W.3d 730, 742–43
(Tex. App.—Waco 2001, pet. ref’d) (elements for attempted delivery of a controlled
substance). Specific intent may be inferred from the defendant’s acts. See Giddings,
816 S.W.2d at 540; Rivas, 787 S.W.2d at 233.
As an initial matter, this too could constitute “criminal activity” (criminal
behavior or action) under the plain terms of Section 46.02(a‑1)(2)(A). So again, the
question is whether the State proved this activity by the preponderance of the
evidence.
Texas courts have upheld attempted drug possession convictions on
circumstantial evidence of intent and overt acts—even when completion was
impossible or unproven by laboratory results. See, e.g., Giddings, 816 S.W.2d at
539–40 (rejecting factual-impossibility defense and affirming attempted possession
conviction where defendant arranged a purchase, arrived with substantial cash, and
moved to consummate the deal even though no cocaine existed because the deal was
19
with undercover officers); Rivas, 787 S.W.2d at 232–33 (affirming attempted
possession of cocaine where defendant went to drug-buy location, saw money
displayed to undercover officers, and acted like a lookout—conduct that, together,
showed specific intent to possess cocaine and an act beyond mere preparation); see
also Baxter v. State, 718 S.W.2d 28, 30–32 (Tex. App.—Eastland 1986, pet. ref’d)
(evidence at trial was sufficient to support attempted aggravated manufacture of
methamphetamine; absence of a critical ingredient (lack of methylamine) did not
defeat attempt liability).
Applied here, Gray’s admission that he knew there were drugs in the vehicle,
the placement of the suspected methamphetamine in the same bag as his debit card
under the driver’s seat within his reach, and his control of the vehicle, support a
finding that he intended to exercise control over contraband. Again, we are instructed
to view the evidence in the light most favorable to the ruling. See Cardona, 665
S.W.2d at 493; Bell, 649 S.W.3d at 898. And on this record—acting as the sole judge
of credibility and weight of the evidence—the trial court could have reasonably
found by a preponderance of the evidence that Gray violated his terms of community
supervision by engaging in “criminal activity” for purposes of Section
46.02(a‑1)(2)(A) by engaging in attempted possession of methamphetamine. That
is, the trial court could have found by a preponderance of the evidence that the
evidence shows a specific intent to possess, coupled with an overt act—keeping the
20
substance among his personal effects and within immediate reach—that goes beyond
mere preparation. See Giddings, 816 S.W.2d at 539–40; Rivas, 787 S.W.2d at 232–
33; see also Baxter, 718 S.W.2d at 30–32.
***
The greater weight of credible evidence before the trial court supports the trial
court’s reasonable belief that it is more probable than not that Gray violated his
community supervision by committing the new offense of unlawful carrying of a
weapon. Therefore, the trial court did not abuse its discretion in adjudicating guilt.
See Rickels, 202 S.W.3d at 763–64 (revocation/adjudication standard of review).
4. Gray’s arguments do not change this conclusion.
Gray contends that, because the trial court found the unauthorized‑use
allegation “not true” and the possession‑with‑intent-to-deliver allegation “not
proven,” the State cannot show he was “engaged in criminal activity” when he
carried the handgun. We disagree.
To begin, the unauthorized-use allegation was wholly independent of the
“criminal activity”—possession and attempted possession—discussed above. A
conclusion that the State did not prove that one used a vehicle without authorization
has no bearing on whether the person undertook separate criminal behavior
concerning drugs.
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Nor does the possession-with-intent-to-deliver allegation change the result
here. Gray is correct that the trial court said that possession with intent to deliver
was “not proven,” and the court declined to enter a “true” or “not true” finding on
that allegation.
But possession with intent to deliver requires additional proof beyond simple
possession; it requires proof of intent to deliver. Specifically, “[i]n a possession with
intent to deliver case, the State must prove that the defendant: (1) exercised care,
custody, control, or management over the controlled substance; (2) intended to
deliver the controlled substance to another; and (3) knew that the substance in his
possession was a controlled substance.” Nhem v. State, 129 S.W.3d 696, 699 (Tex.
App.—Houston [1st Dist.] 2004, no pet.) (citing TEX. HEALTH & SAFETY CODE
§§ 481.002(38), 481.112(a)) (emphasis added). Yet the intent to deliver element is
not a part of a simple possession charge. See Tate, 500 S.W.3d at 413. An offense is
a lesser-included offense of another if “it is established by proof of the same or less
than all the facts required to establish the commission of the offense charged.” TEX.
CODE CRIM. PROC. art. 37.09(1); see also Bullock v. State, 509 S.W.3d 921, 924
(Tex. Crim. App. 2016).
That a record might not prove possession with the intent to deliver does not
mean that it does not nevertheless prove possession or attempted possession.
Accordingly, failure to prove possession with intent to deliver does not preclude a
22
finding that the defendant nevertheless possessed (or attempted to possess) the
controlled substance. And for the reasons explained above, this record supports a
reasonable belief that Gray engaged in criminal activity by possessing
methamphetamine, or at least attempting to possess it.11
To the extent Gray argues the evidence was insufficient because no laboratory
testing was performed on the substance, Texas courts have long upheld revocations
where, as here, a trained officer identified a controlled substance without laboratory
testing (again, the trial court is the sole judge of credibility and weight of the
evidence under the applicable standard). See, e.g., Jordan v. State, 486 S.W.2d 784,
785 (Tex. Crim. App. 1972) (police officer’s expert opinion identifying substance,
without scientific testing, was sufficient to support probation revocation); Sterling,
791 S.W.2d at 276–77 (similar); see also Rodriguez, 2024 WL 4234265, at *2–3
(officer testimony and defendant’s admissions sufficed to establish “criminal
11
It also bears noting that Gray takes the trial court’s “not proven” remark out of
context. The court found the unlawful carrying of a weapon allegation true and
stated that, based on the evidence, “truthfully you’re right, [Gray]’s probably out
there dealing dope at a bar, with a gun, at 2:00 o’clock in the morning, in what at
[sic] amounts to be a stolen car.” The trial court also noted that, although lab results
were not yet in, “everybody’s agreed, they’re drugs . . . even without the analysis I
have no doubt they were drugs.” The trial court declined to rule on the
possession‑with‑intent allegation, explaining: “I’m not going to say true or untrue.
I’m going to say not proven because I think the State should get the lab results and
prosecute [Gray] further . . . . And I hope when they do, if you’re found guilty,
they’ll stack that sentence on top of my about to be sentence.”
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activity” for unlawful-carrying prosecution even though the State did not obtain
laboratory results).
Further, even without laboratory testing, the facts here are sufficient for, at a
minimum, attempted possession, as discussed above. The Court of Criminal Appeals
has recognized that a defendant who believes the substance is contraband and takes
steps to possess it can be guilty of attempted possession, notwithstanding later
testing showing the substance was not contraband. See Mable, 443 S.W.3d at 130–
31 (recognizing that, even when lab testing later shows no controlled substance,
defendant could still be guilty of attempted possession, a lesser‑included offense of
possession). As discussed, the record here permits a preponderance finding that Gray
was engaged in criminal activity of either (1) possession or, at the least (in the
alternative), (2) attempted possession.
CONCLUSION
We affirm the judgment of the trial court.
Jennifer Caughey
Justice
Panel consists of Justices Gunn, Caughey, and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).
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