KEITH REYNOLDS v. THE STATE OF TEXAS

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Court of Appeals of Texas, El Paso.

KEITH REYNOLDS, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-14-00307-CR

Decided: June 30, 2017

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

Keith Reynolds appeals his convictions of manufacture or delivery of methylenedioxy methamphetamine (MDMA), a controlled substance having an aggregate weight of 400 grams or more (Count I), and possession of more than five but less than fifty pounds of marihuana (Count II). A jury found Appellant guilty of each offense, and the trial court assessed his punishment at imprisonment for seventeen years on Count I and three years on Count II. We affirm.

FACTUAL SUMMARY

In 2009, Detective Kenneth Jones was assigned to the El Paso Police Department's Alpha Task Force. The purpose of Alpha is to engage in narcotics interdiction in the City of El Paso and El Paso County. At that time, Jones was assigned to a unit within Alpha known as GRAB which stands for Ground, Rail, Air, and Bus. On May 7, 2009, Jones and other law enforcement officers, including a canine unit, were conducting interdiction at the Amtrak station and were focused on eastbound trains. All of the officers were in plain clothes. Appellant came to the officers' attention because he had purchased a ticket for $683 in cash from California to Austin. El Paso is known as a “source city” for drugs, and Austin is considered a “destination city” meaning a city where drugs are dispersed. These facts indicated to Jones, based on his training and experience, that Appellant was involved in narcotics activity, and more specifically, that he could be a courier.

Appellant was assigned to car 2230 and sleeper-car room H. The officers and the canine were walking on the train platform toward car 2230, when they saw Appellant and another man outside of the train. Jones described Appellant as appearing to be “very interested” and nervous when he saw the canine, and he hurriedly boarded the train. Detective Jones and two other officers boarded the train behind Appellant and went to sleeper-car room H where they found Appellant still inside of the room but about to exit.

The officers identified themselves and Jones asked if they could speak with Appellant. Appellant replied affirmatively. The officers did not block Appellant from exiting the room and he was free to leave at any time. Jones told Appellant that they were engaged in narcotics interdiction. Appellant showed Jones his ticket and confirmed that he was the person who had rented sleeper-car room H. Jones asked Appellant about his trip, and Appellant replied that he was returning from a business trip in Ontario, California, and was traveling to Austin. Appellant explained that he was in the flooring business. Jones could see a black suitcase on the floor, and a brown suitcase on the toilet. After Jones informed Appellant that he was engaged in narcotics interdiction, Appellant opened the black suitcase and manipulated the contents in an effort to show Jones that he did not have anything illegal. Jones was not convinced by Appellant's display because in his experience, “[p]eople that want to search their own bags are usually trying to hide something, so they only want to show you what they want you to see.” As Appellant went through the contents of the black bag, Jones saw that it contained a “Seal-A-Meal” device which uses heat to seal plastic baggies and is commonly used to package narcotics and currency. Appellant did the same thing with a brown suitcase which was on the toilet, and Jones saw that it contained scissors and the specific type of baggies used with the “Seal-A-Meal” device. Jones then asked Appellant for consent to search the room and the luggage. Appellant told Jones that he had already shown him that the bags did not have anything in them, and Jones explained that he wanted to search the bags himself. Appellant then gave Jones consent to search.

In the black suitcase, Jones found a “Seal-A-Meal” device. In the other suitcase, Jones found trash bags, scissors, a roll of duct tape, and rolls of the heat-sealer baggies. All of these items are indicative of narcotics packaging. When Jones first entered the room, he saw that two bags were partially concealed in the upper bunk. After he completed the search of the suitcases, Jones asked Appellant for consent to search the two concealed bags on the top bunk. Appellant became visibly nervous and began breathing heavily, but he consented to a search of these items. Jones found bottles of Prometh Codeine cough syrup, several vacuum-sealed baggies containing a total of 11,320 Ecstasy pills (methylenedioxy methamphetamine or MDMA), and baggies containing a total of seven pounds of marihuana. Appellant also had over $6,000 in his possession.

CONSENT TO SEARCH

In Issue One, Appellant challenges the trial court's denial of his motion to suppress. He contends that his consent to search was not voluntary and the search exceeded the scope of the consent given. The State initially responds that Appellant waived the alleged error by stating he had no objection to photographs depicting the marihuana and Ecstasy pills.

Preservation of Error

Rule 103(b) provides that when the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal. TEX.R.EVID. 103(b). Thus, an adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to preserve error on appeal, and a defendant need not specifically object to the evidence when it is later offered at trial. Thomas v. State, 408 S.W.3d 877, 881 (Tex.Crim.App. 2013). But if the defendant affirmatively states that he has “no objection” to the evidence that he challenged in his pretrial motion to suppress when it is later offered at trial, the defendant has waived the right to raise the issue on appeal. Id. In Thomas, the Court of Criminal Appeals held that this waiver rule may not apply if the record as a whole demonstrates that the defendant did not intend, and the trial court did not construe, the defendant's “no objection” statement to constitute an abandonment of a claim of error he had earlier preserved. Id. at 885. If, after reviewing the record as a whole, the appellate court is unable to tell whether abandonment was intended or understood, it should regard the “no objection” statement to be a waiver of the earlier-preserved error. Id.

Appellant preserved his complaints regarding the voluntariness of his consent and the scope of the search by obtaining an adverse ruling on his pretrial motion to suppress. At trial, however, Appellant stated that he had “no objection” to State's Exhibits 9, 12, and 13. State's Exhibit 9 is a photograph of a large trash bag containing plastic baggies of marihuana. State's Exhibit 12 is a photograph of the large baggie containing the marihuana and the baggies of Ecstasy. State's Exhibit 13 is a photograph of the baggies of Ecstasy. We have reviewed the entire record and are unable to find anything demonstrating that Appellant did not intend for his “no objection” statements to constitute an abandonment of the error he preserved with his motion to suppress. Thus, the alleged error is waived. Even if Appellant preserved the suppression issue, it is without merit.

Standard of Review and Applicable Law

The denial of a motion to suppress evidence is analyzed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We review the trial court's determination of historical facts for an abuse of discretion, but the trial court's application of law to the facts is reviewed de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App. 2013). When reviewing the trial court's determination of historical findings, we are required to give those findings almost total deference if they are supported by the evidence. Tucker v. State, 369 S.W.3d 179, 184 (Tex.Crim.App. 2012). The trial court did not issue findings of fact. In such a case, findings that support the trial court's ruling are implied if the evidence, viewed in a light most favorable to the ruling, supports those findings. Turrubiate, 399 S.W.3d at 150.

Under the Fourth Amendment, a search is unreasonable when conducted without a warrant or probable cause. Tucker, 369 S.W.3d at 185. Consent to search is an established exception to the requirements of both a warrant and probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44, 36 L.Ed.2d 854 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). In order to be valid under the Fourth Amendment, consent must be freely and voluntarily given. State v. Villarreal, 475 S.W.3d 784, 799 (Tex.Crim.App. 2015); Carmouche, 10 S.W.3d at 331. The critical question is whether the person's will was overborne. Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App. 2011). When analyzing whether consent was given voluntarily, a court must consider the totality of the circumstances of the situation from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence. Tucker, 369 S.W.3d at 185. Consent is not voluntary if the evidence shows the consent was nothing more than acquiescence to a claim of lawful authority. Carmouche, 10 S.W.3d at 331. Further, consent is not valid if it is coerced, by explicit or implicit means. See id. Under Texas law, the State has the burden to demonstrate to the trial court by clear and convincing evidence that the defendant or the owner of the property consented to the search voluntarily. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997).

Voluntariness of Consent

Appellant first argues that his consent was not voluntary because it was the product of coercion and he merely submitted to a lawful claim of authority. In support of his argument, Appellant asserts that he was confronted with three armed narcotics detectives at the door to his cramped room, he was nervous and fearful throughout the encounter, and Detective Jones began searching before he even asked for consent. The record reflects that three officers went to sleeper-car room H and Jones engaged in a calm and consensual conversation with Appellant. Contrary to Appellant's claim in his brief, Appellant was calm during the initial part of the encounter, and he became nervous only when Detective Jones found the two partially-concealed bags after consent had been given. The three law enforcement officers did not enter the room, block Appellant's exit, or otherwise give him cause to believe he was not free to leave the room. Further, there is no evidence that any of the plainclothes officers displayed a weapon, spoke in a commanding or authoritative tone, or made any threats, including a threat to obtain a warrant if Appellant did not consent. The record also shows that when Jones told Appellant that he was engaged in narcotics interdiction, Appellant opened two of his suitcases without being asked to do so by the officers, and he went through the contents in an apparent effort to show that he did not have anything illegal in his bags. As Appellant displayed the contents of these two bags on his own, Jones saw the “Seal-A-Meal” device and the packaging materials. Jones was still standing outside of the room when Appellant was opening the bags and going through the contents. After seeing these items which are commonly used in narcotics packaging, Jones asked Appellant for consent to search. The evidence supports the trial court's implied finding that Appellant freely and voluntarily consented to the search. See United States v. Drayton, 536 U.S. 194, 204-05, 122 S.Ct. 2105, 2112-13, 153 L.Ed.2d 242 (2002)(where evidence showed that officers did not block exit on cramped bus, brandish weapons, threaten the defendant, or otherwise act in a coercive or confrontational fashion, defendant's consent to search was voluntary).

Scope of the Search

Appellant also contends that the search conducted by the officers exceeded the scope of his consent. The scope of a consensual search is determined by what a reasonable person would have expected the search to include. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Appellant claims that he gave consent to enter the sleeper-car room, but he did not give the officers permission to search the luggage. Appellant's argument is contrary to the evidence. Jones specifically testified that he asked Appellant for consent to search his sleeper-car and his luggage, and Appellant gave him consent to search both the room and the luggage. After Jones pulled out the two partially concealed bags on the top bunk, he asked Appellant for consent to search those two bags, and Appellant again consented. Under these facts, it was objectively reasonable for Detective Jones and the other officers present to conclude that Appellant had consented to a search of the room and the luggage, including the partially-concealed bags on the upper bunk. See Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804.

Appellant also argues that his act of searching his own bags constituted a limitation on the scope of his consent and the officers testified at trial that they understood this was a limitation on their search. We have reviewed the entire record, including the citations provided by Appellant, and find no evidence to support his claim that the officers testified that they understood that Appellant, by searching his own bags at the beginning of the encounter, had placed a limitation on his subsequent consent to search. The record shows that Appellant began searching through his bags and displaying the contents in response to Jones telling him that he was conducting narcotics interdiction. Jones testified that, in his experience, a person who opens his bag and displays some of the contents, had something to hide and is showing the officers only what he wants them to see. Jones then asked for consent to search the room and the luggage. When Appellant stated he had just shown the officers what was in the bags, Jones explained that he understood, but he wanted to search the bags for himself. Appellant then consented to a search of the bags. Under the totality of the circumstances, a reasonable person would not understand that Appellant's consent to search the room and his luggage was limited to his own search of the bags. Issue One is overruled.

EXTRANEOUS OFFENSE

In Issue Two, Appellant contends that the trial court abused its discretion by admitting evidence that he possessed several bottles of Prometh Codeine cough syrup. Appellant argues that the extraneous offense evidence does not have relevance other than to show character conformity, and its probative value is substantially outweighed by the danger of unfair prejudice. See TEX.R.EVID. 403, 404(b). The State argues that Appellant did not preserve the issue by raising a timely objection. We agree.

In order to present an issue on appeal, the record must show that the appellant raised the issue in the trial court by making a timely and specific objection, motion, or request. See TEX.R.APP.P. 33.1(a). To be considered timely, the objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). If a question clearly calls for an objectionable response, a defendant should make an objection before the witness responds. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). If a party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. Id.

With two exceptions, a party must continue to object every time inadmissible evidence is offered. Peralta v. State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.), citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury and object to all of the objectionable evidence on a given subject. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Ethington, 819 S.W.2d at 858-59. Evidentiary error is not preserved when the same evidence is admitted elsewhere without objection. Lane v. State, 151 S.W.3d 188, 192-93 (Tex.Crim.App. 2004); Peralta, 338 S.W.3d at 609.

The officers found bottles of Prometh Codeine cough syrup in both of the bags found on the upper bunk, and both Detective Jones and Julia Inciriaga testified about the discovery of the bottles of cough syrup. Appellant was aware of the existence of this evidence prior to trial because Detective Jones testified at the suppression hearing about the search of Appellant's bags and the discovery of the bottles of Prometh Codeine cough syrup. During the direct examination of Detective Jones, the prosecutor questioned him about his search of the bags found on the upper bunk:

[The Prosecutor]: And what is located within these two smaller bags?

[Jones]: In the gray bag here was a couple of bottles of Prometh Codeine cough syrup.

[The Prosecutor]: I'm handing to defense counsel what's been marked as State's Exhibit 8.

[Defense Counsel]: Your Honor, we're going to object to these. These weren't ever charged against the defendant. It's not relevant and it's not admissible in that regard. And, furthermore, it just confuses and causes prejudice against the jury to Mr. Reynolds.

[The Court]: That'll be overruled.

[The Prosecutor]: All right. May I approach the witness?

[The Court]: You may.

[The Prosecutor]: Sir, what is depicted here in State's Exhibit No. 8?

[Jones]: These are two bottles of Prometh Codeine cough syrup.

[The Prosecutor]: And was this picture taken at or near the time that this incident occurred?

[Jones]: Yes.

[The Prosecutor]: And has this pictured been altered in any way?

[Jones]: Has not.

[The Prosecutor]: All right. At this time the State moves to introduce State's Exhibit 8.

(State's Exhibit 8 offered.)

[The Court]: I understood your objection but I'm overruling it.

[Defense Counsel]: I'm reurging my objection.

[The Court]: That'll be overruled.

[The Prosecutor]: Okay. Did you then proceed to search the other bag?

[Jones]: Yes, ma'am, I did.

[The Prosecutor]: Okay. And inside of that bag, what did you discover?

[Jones]: Inside of this bag here, there was a white trash bag which contained several bundles of marijuana, I believe six bundles of marijuana.

[The Prosecutor]: Okay.

[Jones]: There were several heat-sealed baggies of multicolored pills.

[The Prosecutor]: All right. And anything else inside that bag?

[Jones]: And there were additional bottles of Prometh Codeine cough syrup.

[The Prosecutor]: I'm handing to defense counsel what's been marked as State's Exhibits 9, 10 and 11.

[Defense counsel]: Your Honor, no objection to Exhibits 9 and 10. Your Honor, objection to Government's Exhibit No. 11 on the basis, again, as being -- it deals with a substance that was never charged against my client. It's not relevant. It has nothing to do with this case and only unfairs [sic] the jury and creates undue confusion, Judge.

The trial court overruled Appellant's objections to State's Exhibit 11.

The record shows that while Appellant timely objected to the admission of the photographs, State's Exhibits 8 and 11, he did not object to Detective Jones' testimony about the bottles of Prometh codeine cough syrup found in each of the bags. Thus, Appellant waived his extraneous offense complaint because he did not object each time the evidence was offered, he did not obtain a running objection, and he did not obtain a ruling on the admissibility of this evidence outside of the jury's presence. See Peralta, 338 S.W.3d at 609. Even if Appellant's objections could be construed as being directed at Detective Jones' testimony, they were made after Jones had testified about his discovery of the cough syrup in each bag, and Appellant has not shown a legitimate reason for his delay in objecting. Appellant's untimely objections did not preserve his complaint regarding Detective Jones testimony about the extraneous offense evidence. See Cole v. State, 987 S.W.2d 893, 895 (Tex.App.--Fort Worth 1998, pet. ref'd) (any error in admission of evidence regarding extraneous offenses was waived where defendant did not object to all of the testimony about the incidents).

Later in the trial, Detective Julia Inciriaga also testified about the search of the bags found on the bunk bed:

[The Prosecutor]: And if you look at that photo, do you see the bags that were found in the room in that photo?

[Inciriaga]: Yes, ma'am; it's these two right here.

[The Prosecutor]: And did you see Detective Jones search those bags?

[Inciriaga]: Yes, ma'am.

[The Prosecutor]: And did you see the contents of those bags?

[Inciriaga]: Yes, ma'am.

[The Prosecutor]: And can you tell the ladies and gentlemen of the jury what the detective found?

[Inciriaga]: This bag we -- there was Prometh Codeine bottles; they look like cough syrup bottles.

[The Prosecutor]: Let me put this back up.

[Inciriaga]: And the second bag, that was --

[The Prosecutor]: Hold on.

[Defense Counsel]: Objection, Your Honor, 403, probative versus prejudicial.

[The Court]: Okay. That'll be sustained.

[The Prosecutor]: Give me one second. And in the second bag what, if anything, was found?

[Inciriaga]: This bag right here, there was a bag -- heat-sealed bags of ecstasy pills, and marijuana also sealed in the same way and a few bottles of the Codeine.

[Defense Counsel]: Objection, Your Honor, same argument. Ask the jury to be instructed to disregard that last statement.

[The Court]: That'll be overruled.

[The Prosecutor]: Proceed.

[Inciriaga]: The bottles of Codeine also in the bottom of the bag.

While Appellant timely raised a Rule 403 objection to Detective Inciriaga's testimony about Jones' discovery of the bottles of Prometh Codeine cough syrup in the second bag, he did not make a timely objection to her testimony about the Codeine cough syrup found in the first bag on the upper bunk. Because Appellant failed to timely object each time the evidence was offered and he did not obtain a running objection, he has waived the complaint raised on appeal. See Peralta, 338 S.W.3d at 609. Issue Two is overruled.

ADMISSION OF DRUG EVIDENCE

In Issue Three, Appellant asserts that the trial court abused its discretion by admitting the drugs into evidence because he offered to stipulate to the evidence. He argues that his stipulation should have been accepted because the admission of this evidence unfairly prejudiced the jury against him.

Standard of Review

An appellate court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). Under this standard, the trial court will be overturned only if its ruling is so clearly wrong as to lie outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003).

Offer to Stipulate

Citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), Appellant argues that a trial court abuses its discretion whenever it rejects the defense's offer to stipulate to an element of the offense. Appellant's reading of Old Chief is too broad.

In Old Chief, the defendant, Johnny Old Chief, was prosecuted for assault with a dangerous weapon and possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). Old Chief, 519 U.S. at 174-75, 117 S.Ct. at 647. This offense required the government to prove that the defendant had been convicted in any court of a crime punishable by imprisonment for a term exceeding one year and he had possessed a firearm. Id. at 174, 117 S.Ct. at 647. Old Chief had a prior felony conviction for assault causing serious bodily injury. Id. at 174-75, 117 S.Ct. at 647. Prior to trial, he sought to prevent the government from proving the nature of his prior felony conviction on the ground that he would be unfairly prejudiced by evidence showing that he had a prior conviction for assault. Id. at 175, 117 S.Ct. at 647-48. Old Chief offered to stipulate that he had been previously convicted of a crime punishable by imprisonment exceeding one year, but the prosecution refused to join the stipulation. Id. at 175-77, 117 S.Ct. at 648. The trial court ruled against Old Chief's request, and the government introduced into evidence the judgment of conviction showing the prior assault conviction. Id. at 177, 117 S.Ct. at 648. The United States Supreme Court framed the issue as follows: whether a trial court abuses its discretion if it spurns a defendant's offer to stipulate to a prior felony conviction and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. Id. at 174, 117 S.Ct. at 647. In analyzing the probative value of evidence used to prove a defendant's legal status as a convicted felon, the Supreme Court concluded that there was no cognizable difference between the evidentiary significance of an admission and of the official record of the conviction. Id. at 191, 117 S.Ct. at 655. There was, however, a significant difference in the potential for prejudice. Id. The Supreme Court concluded that the risk of unfair prejudice substantially outweighed the probative value of the judgment of conviction for assault, and the trial court abused its discretion by admitting the evidence when the defendant had offered to stipulate to the prior conviction. Id.

Old Chief does not hold that a trial court must always accept a defendant's offer to stipulate to any element of the offense. To the contrary, the Supreme Court recognized the existence of the “familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Id. at 186-87, 117 S.Ct. at 653. The Court held that this accepted rule does not apply when the issue is the defendant's legal status as a convict. Id. at 190, 117 S.Ct. at 654-55.

The issue before us does not involve Appellant's legal status as a convict. The State had the burden to prove beyond a reasonable doubt that Appellant possessed the marihuana and Ecstasy as alleged in the indictment. Despite Appellant's offer to stipulate, the State had the right to prove its case by evidence of its own choice, and Appellant could not avoid the force of this evidence with his offer to stipulate. See id. at 186-87, 117 S.Ct. at 653. The trial court did not abuse its discretion by refusing to accept his stipulation and permitting the State to offer evidence to prove this element of the charged offenses. Issue Three is overruled.

EXCLUSION OF PHOTOGRAPHS

In Issue Four, Appellant argues that the trial court abused its discretion by excluding sixteen photographs of the sleeper-car room, and the exclusion of this evidence denied him his constitutional right to present a defense to the charged offenses. Appellant asserts that the evidence was necessary to show the size and layout of the room, and to demonstrate that the bags on the upper bunk would have been concealed when the bunk was raised.1 The record reflects that the trial court sustained the State's objections that the exhibits had not been properly authenticated.

Before addressing Appellant's argument regarding the authentication of the photographic evidence, we will consider his complaint that the evidence should have been admitted under the rule of optional completeness. See TEX.R.EVID. 107. This argument is waived because Appellant did not raise it in the trial court as a basis for admitting the evidence. See TEX.R.APP.P. 33.1.

Authentication is a condition precedent to admissibility of evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App. 2012). To properly authenticate evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” TEX. R.EVID. 901(a). The trial court decides the threshold question whether the proponent has supplied sufficient evidence to support a reasonable jury determination that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638; TEX.R.EVID. 104(a) (whether to admit evidence is a preliminary question to be decided by the court). A trial court's ruling on the preliminary question of admissibility is reviewed for an abuse of discretion. Tienda, 358 S.W.3d at 638.

During cross-examination, Detective Jones authenticated Defense Exhibits 7, 8, 9, 14, 15, and 16, and defense counsel asked the court for permission to publish the exhibits to the jury without first offering them into evidence. The trial court denied the request, pointing out that the exhibits had not been offered into evidence yet. Defense counsel did not offer the photographs into evidence, and he instead questioned Detective Jones about the relatively small size of the room. Appellant attempted to introduce all sixteen of these photographic exhibits later during the defense's case in chief. Prior to the testimony of the defense's sole witness, Adam Ortega, defense counsel offered Defense Exhibits 1 through 16 which he represented to be photographs of the sleeper-car room. The trial court sustained the State's objections that the photographs had not been properly authenticated because there was no evidence that the photographs were of the same sleeper-car or that the sleeper-car had not changed between the time of the offense and when the photographs were taken. Defense counsel did not remind the court that Detective Jones had authenticated several of the exhibits earlier during the trial and he did not have Ortega authenticate any of the remaining exhibits during his testimony.

Ortega is a graduate accounting student and he works in the office of defense counsel. As part of his investigation, Ortega physically inspected what he believed to be the sleeper-car involved in this case. The trial court admitted Defense Exhibit 18 which is a diagram of the sleeper-car provided to Ortega by Amtrak. Ortega testified in detail about the layout of the sleeper-car and its dimensions. He also testified that the sleeper-car can only be locked from the inside.

The trial court did not abuse its discretion by sustaining the State's objection to Defense Exhibits 1 through 6 and 10 through 13 because they were not authenticated by any of the witnesses. The record reflects, however, that the trial court erred by excluding Defense Exhibits 7, 8, 9, 14, 15, and 16 because those exhibits were authenticated by Detective Jones. With regard to this evidence, we are required to conduct a harmless error analysis. Under Rule 44.2, there are two standards of harm analysis: subsection (a) which applies to constitutional error, and subsection (b) which applies to other errors. See TEX.R.APP.P. 44.2. Rule 44.2(a) requires a court of appeals to reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX.R.APP.P. 44.2(a). When applying the “other errors” standard under Rule 44.2(b), non-constitutional errors must be disregarded unless they affect the substantial rights of the appellant. TEX.R.APP.P. 44.2(b).

Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional right to present a meaningful defense. Potier v. State, 68 S.W.3d 657, 659 (Tex.Crim.App. 2002). The Court of Criminal Appeals held in Potier that the exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense. Potier, 68 S.W.3d at 665. The exclusion of these six photographs did not prevent Appellant from presenting his defense because he was able to elicit the same or similar evidence through the testimony of Detective Jones and defense witness Ortega. Therefore, we must apply the harm standard in Rule 44.2(b).

Under Rule 44.2(b), an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Casey v. State, 215 S.W.3d 870, 884-85 (Tex.Crim.App. 2007). The error in excluding Defense Exhibits 7, 8, 9, 14, 15, and 16 is harmless because the same or similar evidence was elicited from another source. Both Detective Jones and defense witness Ortega testified regarding the dimensions and layout of the sleeper-car, and Defense Exhibit 18 depicts the room and its dimensions in the form of a diagram. The witnesses described the room as small and Defense Exhibit 18 showed that its dimensions are 6' 9” by 9' 5”. Defense Exhibits 7 and 8 are photos of the sleeper-car's door from the exterior of the room, and Defense Exhibit 16 appears to be a photo of the locking mechanism on the door from the interior of the room. The same evidence was introduced through Ortega who specifically testified that the door to the room did not have a locking mechanism on its exterior, and the room could only be locked from the inside. Defense Exhibit 9 is a close-up view of the toilet. Similar evidence is shown by Defense Exhibit 18 which depicts the toilet and sink in relation to the rest of the sleeper-room and shows that it is separated from the rest of the room by a curtain. Defense Exhibits 14 and 15 are photographs of the upper bunk in the room with the bunk in the raised and lowered positions, respectively. Detective Jones testified at length about his observations of the upper bunk and Defense Exhibit 18 depicts the bunks in the context of the room and gives their dimensions. While Appellant claims that admission of the photos of the upper bunk were necessary to prove that he could not have seen the concealed bags, there is no evidence that bags were concealed in the upper bunk in the excluded photographs. Because Appellant was able to present his defense despite the exclusion of the photographs, we have fair assurance that the error did not have a substantial and injurious effect or influence on the jury's verdict. Issue Four is overruled.

SUFFICIENCY OF THE EVIDENCE

In Issues Five and Six, Appellant challenges the sufficiency of the evidence to support his convictions for possession of Ecstasy with intent to deliver and unlawful possession of marihuana. More specifically, he contends that the evidence is insufficient to prove that he knowingly possessed these substances.

Standard of Review and Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Murray v. State, 457 S.W.3d 446, 448 (Tex.Crim.App.), cert. denied, --- U.S. ---, 136 S.Ct. 198, 193 L.Ed.2d 127 (2015). This standard recognizes that it is the fact finder's responsibility to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see Murray, 457 S.W.3d at 448. Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App. 2012). Our task is to determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448.

The standard of review is the same for direct and circumstantial evidence cases, and circumstantial evidence is as probative as direct evidence in establishing guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex.Crim.App. 2014). Circumstantial evidence alone may be sufficient to support a conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

Appellant was convicted of possession of Ecstasy with intent to deliver and possession of marihuana. To support a conviction for possession with intent to deliver, the State must prove beyond a reasonable doubt that: (1) the defendant 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. See TEX.HEALTH & SAFETY CODE ANN. § 481.113(a)(West 2017). In an unlawful possession of a controlled substance case, the State must prove: (1) that the defendant exercised care, custody, control, or management over the substance; and (2) that he knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005). “Possession” is defined as “actual care, custody, control, or management.” TEX.HEALTH & SAFETY CODE ANN. § 481.002(38)(West 2017); TEX.PENAL CODE ANN. § 1.07(a)(39)(West Supp. 2016).

The evidence may be direct or circumstantial, but it must establish that the accused's connection with the contraband was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005), citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Mere presence in the same place as the controlled substance alone is not sufficient to justify a finding of possession. Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Harrison v. State, 555 S.W.2d 736, 737 (Tex.Crim.App. 1977). Instead, courts have often required a showing of additional factors or “affirmative links” indicating knowledge. See Menchaca v. State, 901 S.W.2d 640, 651-52 (Tex.App.--El Paso 1995, pet. ref'd). Presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., “links”), may well be sufficient to establish that element beyond a reasonable doubt. Evans, 202 S.W.3d at 162.

Appellate courts frequently set forth a non-exclusive list of links which, either singularly or in combination, have been found to be sufficient to establish knowing possession. Evans, 202 S.W.3d at 162 n.12; Muckleroy v. State, 206 S.W.3d 746, 748 n.4 (Tex.App.--Texarkana 2006, pet. ref'd). These links include the following: (1) the contraband was in plain view or recovered from an enclosed space; (2) the accused either owned or had the right to possess the place where the drugs were found; (3) the accused was found with a large amount of cash; (4) the narcotic was in close proximity to the accused; (5) the narcotic was conveniently accessible to the accused; (6) a strong residual odor of the narcotic was present; (7) the accused possessed other contraband when arrested; (8) other contraband or drug paraphernalia was present; (9) the physical condition of the accused indicated recent consumption of narcotics when arrested; (10) the accused's conduct indicated a consciousness of guilt; (11) the accused tried to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements when arrested; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Muckleroy, 206 S.W.3d at 748 n.4. Evidence that the drugs are valuable can also be an affirmative link. See Santiesteban-Pileta v. State, 421 S.W.3d 9, 14 (Tex.App.--Waco 2013, pet. ref'd)(evaluating the “valuable cargo” link and finding that where evidence showed drugs were valuable, jury could rationally infer that the defendant would not have been entrusted in taking the cargo across an international border if he was unaware of the drugs).

The legal issue with respect to these links is whether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance. Evans, 202 S.W.3d at 161 n.9. It is the logical force of such links, rather than the quantity, that is important in determining whether the evidence is legally sufficient to connect the accused to the contraband. Evans, 202 S.W.3d at 162; Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.--Houston [1st Dist.] 2002, pet. ref'd).

Review of the Affirmative Link Evidence

Numerous affirmative links are present in this case demonstrating that Appellant's connection to the drugs was more than just fortuitous. The marihuana and Ecstasy pills were found in an enclosed space, namely, the bags which were partially concealed on the upper bunk of the sleeper-car. As the person who rented the sleeper-car, Appellant had the right to possess the place where the drugs were found. Appellant paid $683 in cash for his ticket and he was found in possession of an additional $6,000. Given the small size of the room, the drugs were conveniently accessible to Appellant. At the time of his arrest, Appellant possessed other contraband, namely, items commonly used in packaging marihuana and Ecstasy for distribution.

There is also evidence from which the jury could have inferred Appellant's conduct indicated a consciousness of guilt. When Appellant first observed the canine unit and the plainclothes officers walking in his direction, he became extremely interested in the dog and appeared nervous, and he then hurriedly boarded the train. Further, Appellant appeared calm during his initial encounter with Detective Jones, but when Jones pulled down the partially-concealed bags from the upper bunk, Appellant became visibly nervous. Detective Jones described Appellant as breathing heavy with his chest heaving in and out. A jury could infer from this behavior that Appellant had knowledge of the large quantity of Ecstasy pills and marihuana contained in those bags. The bags contained several vacuum-sealed baggies with a total of 11,320 Ecstasy pills (methylenedioxy methamphetamine or MDMA) valued at $5 to $10 per pill ($56,600 to $113,200 total), and baggies containing a total of seven pounds of marihuana valued at $240 a pound ($1,680 total). Appellant's possession of items used in narcotics packaging, including the Seal-A-Meal device and the baggies, provides a further link between Appellant and these drugs. Given the large value of the drugs, the jury could rationally infer that Appellant would not have been given access to the drugs in the sleeper car if he was unaware of them as he claimed. The jury also heard evidence that Appellant's conduct and behavior was consistent with that of a drug courier in that he paid cash for the Amtrak ticket, he rented a private sleeping car, he was traveling one-way through a source city to a destination city, he appeared nervous and rushed to board the train after seeing the drug dog, he possessed a large quantity of narcotics-packaging equipment, and he attempted to appear cooperative by searching through his own bags and only displaying the items he wanted Detective Jones to see. See Blackman v. State, 350 S.W.3d 588, 596 (Tex.Crim.App. 2011) (defendant was affirmatively linked to drugs where evidence included opinion of an experienced narcotics investigator that the defendant acted like a narcotics trafficker). When the logical force of the affirmative links is considered, a rational trier of fact could conclude beyond a reasonable doubt that Appellant knowingly possessed the Ecstasy pills and marihuana. Issues Five and Six are overruled. Having overruled each issue, we affirm the judgments of conviction.

Hughes, J., not participating

FOOTNOTES

1.   Appellant additionally argues that the photographs showed the size of the room and were relevant to prove that he did not voluntarily consent to the search. The consent to search issue was resolved in a pretrial hearing on Appellant's motion to suppress evidence. Appellant did not offer the photographs into evidence at the pretrial hearing, and he did not urge this as a basis for their admission during trial. Regardless, evidence was admitted during the suppression hearing and trial on the merits regarding the small size of the sleeper-car.

YVONNE T. RODRIGUEZ, Justice