                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-17-00492-CR
                            ____________________

                     STEVEN ERICK HESTER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                     On Appeal from the 75th District Court
                            Liberty County, Texas
                          Trial Cause No. CR32007


                          MEMORANDUM OPINION

      A grand jury indicted Steven Erick Hester for the offense of possession of a

controlled substance, namely methamphetamine, in an amount of four grams or more

but less than 200 grams, with the intent to deliver. A jury found Hester guilty of the

lesser-included offense of possession of a controlled substance, methamphetamine,

in an amount of four grams or more but less than 200 grams, enhanced by a prior

felony conviction. Hester pleaded “true” to three enhancements alleged in his

indictment. Hester elected to have the trial court assess punishment, and the trial
                                          1
court sentenced Hester to twenty years of confinement and restitution of $180.

Hester raises four issues on appeal in which he challenges the admission and

exclusion of certain evidence. We affirm.

                                     Evidence

Testimony of Deputy Stefan Fasolino

      Deputy Stefan Fasolino testified that he is currently employed by the

Galveston Police Department, but that in February of 2015, he was with the criminal

interdiction unit of the Liberty County Sheriff’s Office. Fasolino is familiar with

methamphetamine through his training and work experience and he has completed

about 1400 hours of continuing education training.

      According to Fasolino, in January or February of 2015, he received credible

information from an informant concerning drug trafficking in Liberty County and

based on that intelligence he and other officers set up an observation of a residence

in Cleveland. Ultimately, Fasolino and the SWAT team from the Liberty County

Sheriff’s Office, along with the entire criminal interdiction unit, executed a search

warrant at the residence based on “probable cause through a purchase of narcotics

through an informant.” Fasolino testified that he seized evidence of drug trafficking

upon execution of the search warrant at the residence.



                                         2
      Fasolino explained that at some point he interviewed the occupant of the

residence and obtained information concerning who supplied the narcotics. Fasolino

obtained a name of the supplier from the occupant of the home, the occupant was

willing to make a call to the person named, and they set up a drug buy for a large

amount of drugs. Fasolino agreed that he overheard the phone call about a drug buy

to be delivered to the residence. According to Fasolino, while he was at the

residence, a black pickup truck drove up that matched what Fasolino had learned

from the occupant. Fasolino testified Steven Hester was the person who drove the

truck. Fasolino explained that the officers conducted a “felony take-down of the

vehicle[,]” ordered the people in the truck to get out with their hands visible, detained

the occupants of the truck, and found a bag of methamphetamine that had fallen out

of the truck when the passenger door of the truck opened. According to Fasolino,

Hester was inside the truck on the driver’s side, and Patricia Sharp was in the truck

on the passenger’s side.

      According to Fasolino, the planned drug buy was originally for ten ounces at

a price of $750 per ounce, which Fasolino agreed was a substantial amount, and later

the amount was reduced to four ounces. Fasolino testified that he tested the drug

evidence at the Sheriff’s Office and it tested positive for methamphetamine, and it

was 68 grams when he weighed it. Fasolino also agreed that the lab report indicated

                                           3
that the amount seized weighed 58.07 grams. Fasolino identified State’s Exhibit 1

as the bag in which he had sealed the methamphetamine obtained from Hester.

      Fasolino believed that Hester was the owner of the truck. Fasolino also

identified State’s Exhibit 5 as an insurance document for the truck that showed

Hester as the insured driver for the truck.

Testimony of Peggy Bourgeois

      Peggy Bourgeois testified that she is the evidence custodian for the Liberty

County Sheriff’s Office. Bourgeois explained the procedure she followed regarding

the receipt of the evidence in this case including the material she received from the

lab after an analysis was performed on the evidence. Bourgeois agreed that the

contents of the bag marked as State’s Exhibit 1B was the evidence seized in this case

on February 10, 2015.

Testimony of Rosa Carreno

      Rosa Carreno testified she has been a forensic scientist for about five and a

half years, and in February of 2015, she was employed with the Texas Department

of Public Safety crime laboratory in Houston. Carreno agreed she performed an

analysis on the contents of State’s Exhibit 1B on June 30, 2015. According to

Carreno, the substance weighed 58.07 grams, and the color tests and confirmatory

instrumental analysis she performed indicated “the presence of methamphetamine.”

                                              4
Carreno identified State’s Exhibit 2 as a true and accurate copy of her analysis and

the report of her findings with one redaction.

      The defense objected to State’s Exhibit 2 “because of the redaction” but not

to State’s Exhibit 2A, an unredacted copy of Carreno’s report. In a discussion at the

bench, counsel for the State explained that the redaction was “the co-defendant’s

name which [was] covered in the motion in limine that the [S]tate filed.” The court

overruled the defense’s objection, admitted State’s Exhibit 2. The trial court found

that the redaction did not contain relevant matters.

      The defense called no witnesses.

                                Standard of Review

      We review the trial court’s admission of evidence for an abuse of discretion.

See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Layton v. State,

280 S.W.3d 235, 240 (Tex. Crim. App. 2009). A trial court abuses its discretion

when its decision lies outside the zone of reasonable disagreement. See Martinez,

327 S.W.3d at 736; Layton, 280 S.W.3d at 240. In addition, we uphold the ruling on

the admission of evidence if it was correct on any theory of law supported by the

record and applicable to the case, in light of what was before the trial court at the

time the ruling was made. See State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim.

App. 2007); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); State v.

                                          5
Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000).

                                  Hearsay Evidence

      In two issues, Appellant challenges the admission of certain evidence he

characterizes as hearsay. In his first issue, he argues that the trial court erred in

admitting hearsay testimony regarding phone conversations that Deputy Fasolino

overheard. In his second issue, he argues that the trial court erred in admitting certain

portions of the phone conversations that the Deputy overheard that constituted

hearsay testimony. According to Appellant, without the evidence of the phone

conversations, the remaining evidence is insufficient to support a guilty verdict.

      We first note that Appellant acknowledges that trial counsel did not make a

Confrontation Clause objection at trial but, citing to Guidry v. State, 9 S.W.3d 133,

149 (Tex. Crim. App. 1999), argues that the Court of Criminal Appeals has

explained that the admission “of hearsay evidence against a criminal defendant

implicates the Confrontation Clause of the Sixth Amendment because the defendant

is not afforded the opportunity to confront the out-of-court declarant.” Because

Appellant failed to make a Confrontation Clause objection at trial, he has waived

error on this point. See Tex. R. App. P. 33.1(a); Paredes v. State, 129 S.W.3d 530,



                                           6
535 (Tex. Crim. App. 2004) (a Confrontation Clause objection must be made in the

trial court to preserve the complaint for review on appeal).

      During direct examination of Deputy Fasolino, defense counsel repeatedly

made hearsay objections to the testimony concerning the conversation Fasolino

overheard. The trial court overruled the hearsay objections. Assuming, without

deciding, that the trial court abused its discretion by admitting the complained-of

evidence, we conclude that Hester’s substantial rights were not affected. See Tex. R.

Evid. 103(a); see also Tex. R. App. P. 44.2(b). Given the evidence before the jury,

it is unlikely that the admission of the complained-of evidence had a substantial

effect on the jury’s verdict. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App.

1999). The jury heard evidence that Deputy Fasolino was present when Hester drove

to the residence, Hester exited the truck after the other officers ordered people out

of the truck, the methamphetamine fell out of the truck, and Hester showed an

insurance document listing him as an insured driver of the truck. Rosa Carreno

testified that the substance seized weighed 58.07 grams and tested positive for

methamphetamine. Even absent the complained-of evidence, the testimony from the

witnesses at trial and the other evidence supports Hester’s conviction. After

examining the record as a whole, we have fair assurance that the error, if any, did

not influence the jury, or had but slight effect. See id.; see also Taylor v. State, 268

                                           7
S.W.3d 571, 592 (Tex. Crim. App. 2008); Schutz v. State, 63 S.W.3d 442, 444-46

(Tex. Crim. App. 2001). We overrule Hester’s first two issues challenging the

admission of the testimony concerning the phone conversations.

                         “Rule of Optional Completeness”

      In his third issue, Appellant argues that the trial court erred by refusing to

admit an unredacted copy of the lab report after a redacted copy had been offered by

the State and admitted. According to Appellant, because the State chose to introduce

part of the lab report, the remainder of the lab report was admissible under the rule

of optional completeness.

      Texas Rule of Evidence 107, the “rule of optional completeness,” is a rule of

“admissibility and permits the introduction of otherwise inadmissible evidence when

that evidence is necessary to fully and fairly explain a matter ‘opened up’ by the

adverse party.” Walters v. State, 247 S.W.3d 204, 217-18 (Tex. Crim. App. 2007)

(citing Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977)). “It is designed

to reduce the possibility of the jury receiving a false impression from hearing only a

part of some act, conversation, or writing. Id. (citing Cerda v. State, 557 S.W.2d

954, 957 (Tex. Crim. App. 1977)). “The plain language of Rule 107 indicates that in

order to be admitted under the rule, the omitted portion of the statement must be ‘on

the same subject’ and must be ‘necessary to make it fully understood.’” Sauceda v.

                                          8
State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004) (citing Tex. R. Evid. 107). The

purpose of the rule is “to reduce the possibility of the jury receiving a false

impression from hearing only a part of some act, conversation, or writing.” See

Walters, 247 S.W.3d at 218.

      During direct examination of Rosa Carreno, the State introduced State’s

Exhibit 2, the redacted lab report. Carreno testified that the lab report showed that

the evidence tested positive for methamphetamine and weighed 58.07 grams. The

defense objected to State’s Exhibit 2 “because of the redaction[,]” but not to Exhibit

2A, the unredacted version of the report. The State explained that the name of

Hester’s co-defendant had been redacted on Exhibit 2, as previously addressed in

the motion in limine. The trial court overruled the defense’s objection, explained that

it did not find that the redacted material was relevant, and admitted the redacted lab

report.

      After the State rested, the defense requested that the trial court reconsider

admitting Exhibit 2A. The State objected to the unredacted copy of the report,

Exhibit 2A, on the basis of hearsay and relevance. The trial court found that Exhibit




                                          9
2A was not probative or relevant to any issue in the case and overruled the defense’s

request.1

      In this case, there was no showing either that the unredacted lab report was

necessary to correct a false or incorrect impression of the evidence. See Sauceda,

129 S.W.3d at 123. Hester did not argue to the trial court and does not argue on

appeal that admission of the unredacted lab report was “necessary to explain or allow

the trier of fact to fully understand the part offered” by the State. See Tex. R. Evid.

107. Rather, Appellant argues that the State’s objections to the unredacted report

“clearly shows an intent by the State to conceal evidence in order to facilitate its

false argument that no one possessed the methamphetamine other than Appellant.”

      We cannot say the trial court’s decision to exclude the unredacted lab report

was outside the zone of reasonable disagreement. See Martinez, 327 S.W.3d at 736.

The record does not support Appellant’s assertion that, by offering the redacted lab

report, the State intended to create a false impression that no one other than

Appellant possessed methamphetamine. The Deputy testified that Hester was in the

truck on the driver’s side, that Patricia Sharp was in the truck on the passenger side,

that the methamphetamine “fell out of the passenger door[,]” that he believed Hester


      1
        The defense also offered into evidence an indictment for Patricia Sharp. The
trial court denied the evidence as having no probative value. Appellant does not
challenge the trial court’s ruling on this evidence on appeal.
                                           10
was the owner of the truck, and that Fasolino got the methamphetamine at the scene

from Hester. Because the jury heard testimony that another person was with Hester

in the truck, Appellant’s argument that the State intended to create a false impression

finds no support in the record. See Stevens, 235 S.W.3d at 740. We overrule

Appellant’s third issue.

                                Proper Jury Argument

        In his final issue on appeal, Appellant argues that during closing argument,

counsel for the State made a “blatantly false statement[]” that compounded the trial

court’s error in denying the unredacted lab report. Appellant urges this Court to

consider this issue along with the issue concerning the rule of optional completeness

because “they involve the same evidence[.]” Although Appellant acknowledges that

a co-defendant’s guilty plea is not normally admissible to exculpate a defendant,

Appellant nonetheless argues that the State’s failure to correct a known “false

argument[]” violated Appellant’s due process rights to a fair and impartial trial.

Hester concedes that his attorney did not object to the State’s argument at trial, but

Hester argues that he need not have preserved error because the State’s argument

was so prejudicial that an instruction to disregard the argument could not cure the

harm.

        During closing argument, counsel for the State argued in relevant part:

                                          11
             [The defendant’s] the one that showed up. Nobody else. Nobody
      else came driving up in the same car that was described in
      approximately the same time with the same description that was given
      the officer.
             I mean, my God, he wants you to think just circumstances and it
      was somebody else’s. It was the other person’s in the car. Really?

      Proper areas of jury argument include: (1) a summation of the evidence

presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an

answer to opposing counsel’s argument; or (4) a plea for law enforcement. See

Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). A defendant forfeits

his right to complain on appeal about an improper jury argument if he fails to object

to the argument or to pursue his objection to an adverse ruling. See Threadgill v.

State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). If a trial court sustains an

objection asserting an improper jury argument, to preserve error on appeal, the

complaining party must additionally request an instruction to disregard an offending

argument if such an instruction could cure the prejudice. See McGinn v. State, 961

S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice arising from an erroneous

jury argument is incurable, the complaining party must move for a mistrial. Id.

      In this case, the defense made no objection, did not request an instruction to

disregard, and did not move for a mistrial. Therefore, Appellant failed to preserve

error on this point. See Threadgill, 146 S.W.3d at 670; McGinn, 961 S.W.2d at 165.

We review unpreserved error only if the error is so egregious and created such harm
                                        12
that the appellant did not receive a fair and impartial trial. See Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). A harm evaluation entails

a review of the whole record, including the jury charge, contested issues, weight of

the probative evidence, arguments of counsel and other relevant information. Id.

      Even assuming Appellant had preserved error, we find it has no merit. As we

have explained, the jury heard testimony that Patricia Sharp was a passenger in the

vehicle and that Hester was driving. Appellant has not cited to any evidence in the

record that anyone other than (or in addition to) Hester possessed the drug, and his

argument that the State made a “false argument[]” appears to rely on evidence

outside the record. See Tex. R. App. P. 38.1(i). Neither has Appellant demonstrated

egregious harm. See Almanza, 686 S.W.2d at 171. For these reasons, the trial court

would not have erred in denying an instruction to disregard or a motion for a mistrial.

See Young v. State, 137 S.W.3d 65, 70-71 (Tex. Crim. App. 2004) (explaining

requirements for an instruction to disregard and motion for mistrial). Accordingly,

we overrule Appellant’s fourth issue.

      Having overruled all issues, we affirm the judgment of conviction.

      AFFIRMED.


                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice
                                          13
Submitted on August 20, 2018
Opinion Delivered August 29, 2018
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




                                      14
