Opinion issued March 31, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00920-CR
                           ———————————
                    LYDELL ANTON JONES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 221st District Court
                        Montgomery County, Texas *
                    Trial Court Case No. 12-09-09812-CR




*
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred the appeal to this court. See Misc. Docket No. 13–9152 (Tex. Oct. 17,
     2013); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases).
                                  OPINION

      A jury convicted appellant Lydell Anton Jones of possession with intent to

deliver or manufacture a controlled substance, phencyclidine (“PCP”), in an

amount greater than 400 grams. See TEX. HEALTH & SAFETY CODE § 481.102(8)

(Penalty Group 1); id. § 481.112(a) & (f) (Offense: Manufacture or Delivery of

Substance in Penalty Group 1). The jury found enhancement allegations in the

indictment to be “true,” specifically that Jones previously had been convicted of

possession of controlled substance with intent to deliver, possession of marihuana,

and unauthorized use of a motor vehicle. The jury assessed punishment at 65 years

in prison, and Jones appealed. In his first two issues, Jones challenges the trial

court’s admission of evidence and the sufficiency of the evidence to support the

conviction. In his third issue, he argues that he received ineffective assistance of

counsel.

      Finding no reversible error, we affirm.

                                   Background

      A United States postal inspector suspected that a package contained a

controlled substance. The package was shipped by Priority Mail and addressed to

“Lydell Jones” at the address of a restaurant in The Woodlands. The postal

inspector notified local law enforcement, initiating a narcotics investigation

conducted with the joint cooperation of the postal inspector, the Houston Police



                                         2
Department, and the Montgomery County Sheriff’s Department. The postal

inspector contacted Jones by telephone, and he agreed to pick up the package at the

restaurant the following day. The next day, the postal inspector delivered the box

to the restaurant, and then she waited in the parking lot with HPD officers in

unmarked patrol cars. When Jones arrived and took possession of the box, the

officers contacted Montgomery County Sheriff’s Deputy S. Martin, who was in a

marked patrol car nearby, and they described Jones’s car to him. Deputy Martin

followed Jones for a short while before stopping him for a suspected window-tint

violation.

      When Jones pulled over, Deputy Martin’s dashboard-mounted camera was

engaged, and a recording was made. Deputy Martin determined that Jones was

driving while his license was suspended and that the window tint on the car

exceeded that allowed by law. Jones consented to a search of the car, stating that it

was not his car, and he did not believe there was contraband or weapons inside, but

because it was not his he could not be certain.

      Deputy Martin found the suspicious package on Jones’s backseat, in plain

view. It was a box from a hardware store (“a Home Depot box”), prepared for

shipment through the mail, with Jones’s name written in several places and

addressed to him at the restaurant address. The return address indicated the sender

as “Katrina Jones” in Long Beach, California. Deputy Martin also found “several



                                          3
deposit slips for different banks” in the center console. He testified that he saw

deposit slips from “Bank of America and Chase,” with two indicating deposits in

the amounts of $4,000 and approximately $3,500. He also found “a stack of several

blank deposit slips.” Martin did not collect or retain the deposit slips.

      Jones told Deputy Martin and the other officers on the scene that he worked

for both the restaurant and a barber shop. He said the package contained “perm”

solution, and he denied consent to search it. But Martin’s suspicion about the

package had been aroused by a combination of factors. The investigation had been

initiated by the postal inspector’s tip. The return address was from Long Beach,

California, and Martin knew that California was a primary source for exporting

illegal drugs, which are frequently sent through the mail. In addition, he found it

suspicious that perm solution would be shipped “in a Home Depot box” and

addressed to Jones at the restaurant, not the barber shop. According to Deputy

Martin, “Nothing he was telling me was adding up or making any sense.”

      Deputy Martin arrested Jones for driving while his license was suspended

when he had a prior conviction for the same offense. Because he was not certain

whether he had sufficient justification to conduct a warrantless search of the box,

Deputy Martin called for a K-9 unit. When the dog arrived, it alerted on the box,

indicating the presence of an illegal substance. Deputy Martin and the other

officers then opened the box. Inside they found another sealed cardboard box



                                           4
which held three 32-ounce bottles and one 20-ounce bottle, each filled with a

yellowish liquid and packaged separately in vacuum-sealed plastic bags. Deputy

Martin later testified that narcotics traffickers often use vacuum-sealed bags to

mask odors and avoid detection by drug-sniffing dogs. He field-tested the liquid,

which had a strong odor, and detected PCP. Jones was charged with possession

with intent to deliver PCP, a controlled substance, in an amount of 400 grams or

more.

        Jones had a mobile telephone with him at the time of his arrest. Deputy

Martin testified that it rang continually during their encounter. The phone was

collected as evidence and turned over to Montgomery County Sheriff’s Detective

M. Pieper, who specialized in gathering forensic evidence from electronic devices.

She obtained a search warrant for the contents of the phone and extracted text

messages, photographs, call lists, and contact lists from it.

        At trial, Jones objected to the admissibility of the evidence obtained from the

phone, arguing that it was unauthenticated hearsay. He also asserted that the phone

belonged to his mother-in-law, Pearly Green, who went by the nickname “Baby.”

The State argued that Jones’s possession of the phone at the time of the arrest, his

use of it at the scene of the traffic stop, and certain information on it showed that it

was his phone and satisfied the authentication requirement. The State further

argued that text messages shown to be sent from “Me,” i.e. the phone’s user, were



                                           5
statements against Jones’s interest or statements of a party opponent and therefore

not hearsay. Finally, the State argued that the other text messages and photographs

were not hearsay because they were not offered to prove the truth of the matter

asserted but to show the context for Jones’s responsive messages and to show a

course of conduct. The trial court overruled Jones’s objection, holding that any

questions about who sent or received the texts went to the weight of the evidence,

not its admissibility.

      Detective Pieper testified that she recovered several text messages from

“Kool” originating from a phone number with a 562 area code, which is in

southern California. The text messages dated from approximately two months

before the arrest. Among these were approximately 25 text messages between

“Kool” and “Me.” Many of these consisted of ten-digit numbers or phone numbers,

bank names, names of people, and amounts of money. Two messages from “Kool”

to “Me” addressed the recipient by the name “James.”

      The mobile phone’s contact list included entries for “Baby” and “James

Green,” but it did not include an entry for Jones. The call log showed two

incoming phone calls from “James Green,” but with different associated phone

numbers. The phone also contained photographs of shipping labels—one addressed

to Jones at the restaurant and the other addressed to James Green. Detective Pieper




                                        6
did not verify whether the phone numbers actually belonged to the people

identified by name in the mobile phone records.

      A forensic scientist with the Texas Department of Public Safety crime

laboratory in Houston analyzed the liquid seized from the package delivered to

Jones. The total weight confiscated was 2,643 grams, and all four bottles contained

PCP, a controlled substance in Penalty Group 1. See TEX. HEALTH & SAFETY CODE

§ 481.102(8). P. Cash, the commander of the narcotics division for the

Montgomery County Sheriff’s Department testified about the nature, potency, and

harmful effects of PCP. According to Commander Cash, most of the PCP in the

United States is made in clandestine labs in Compton, California and shipped

throughout the country. It can be made in different concentrations, and it is

sometimes shipped in concentrations meant to be diluted before sale to end users.

Cash said: “We have seen a quart make gallons.” He testified that it is commonly

shipped by way of the U.S. Postal Service and law enforcement sometimes

receives tips from suspicious postal workers. He testified that the amount of PCP

confiscated from Jones was not an amount for personal use because it was “way

too much.”

      Pearly “Baby” Green testified that the mobile phone belonged to her, not

Jones. She testified that several people had access to the phone, including her




                                        7
daughter, her son James Green, and others. She said she “never” let Jones use her

phone except for the one day he picked up the package.

      James Green testified that he owned the car that Jones was driving on the

day he was arrested. According to him, the postal inspector called him on his

phone looking for Jones, who later left with his mother’s phone to pick up the

package. He also said that Jones never before had used his mother’s phone. He said

that his mother did not know Kool, but he acknowledged numerous text messages

on the phone from Kool.

      The videorecording made at the scene of the traffic stop was admitted into

evidence in both its original form and a redacted version which excluded

statements Jones made at the scene about his prior criminal record. During the trial,

there were technical difficulties with the redacted version, and the record indicates

that portions of the original version were played.

      The jury found Jones guilty of possession with intent to deliver more than

400 grams of PCP, and it assessed punishment at 65 years in prison. Jones

appealed.

                                      Analysis

      On appeal, Jones raises three issues. He argues that the evidence was

insufficient to support the conviction because it did not show that he knew what

was in the box or that he intended to “deliver” it to others. He also challenges the



                                          8
admission of evidence obtained from a mobile phone that was in his possession at

the time of his arrest and the admission of testimony about bank receipts found in

his car. Finally, he argues that he received ineffective assistance of counsel during

the guilt-or-innocence phase of trial because his counsel did not object to evidence

that he refused consent to search the box and to the admission of the unredacted

version of the video made at the time of his arrest.

   I.      Sufficiency of the evidence

        In his second issue, Jones argues that the evidence was insufficient to show

that he knowingly possessed PCP with intent to deliver it. In particular, he argues

that there is no evidence that he knew what was in the box because there was no

odor emanating from it that would indicate it contained an illegal substance. He

argues that he might have been expecting PCP, but he could have been swindled or

that he could have been expecting some other illegal product like marijuana or hair

products not approved for use in this country. He further argues that there was no

evidence of his intent to deliver the PCP because the arrest location was not

suspicious, there was no evidence as to whether he used drugs, and there was no

evidence of cash or drug paraphernalia found on him at the time of his arrest. He

argues that he cannot be held accountable for intending to deliver a substance that

was unknown to him.




                                          9
      When evaluating a legal-sufficiency challenge, we consider all of the

evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The

standard is the same for both direct and circumstantial evidence cases. Carrizales

v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d

701, 703 (Tex. Crim. App. 1995).

      We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact. See Adames

v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). We presume that the

factfinder resolved any conflicting inferences in favor of the verdict, and we defer

to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Pointe v. State, 371 S.W.3d 527,

531 (Tex. App.—Beaumont 2012, no pet.).

      To prove unlawful possession of a controlled substance, the State must

prove that the defendant exercised control, management, or care over the substance

and that he knew the matter possessed was contraband. See Poindexter v. State,

153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Nixon v. State, 928 S.W.2d 212, 215

(Tex. App.—Beaumont 1996, no pet.); see also TEX. HEALTH & SAFETY CODE



                                         10
§ 481.002(38) (defining possession as actual care, custody, control, or

management). “A person acts intentionally, or with intent, with respect to the

nature of his conduct or to a result of his conduct when it is his conscious objective

or desire to engage in the conduct or cause the result.” TEX. PENAL CODE § 6.03(a).

“‘Deliver’ means to transfer, actually or constructively, to another a controlled

substance . . . .” TEX. HEALTH & SAFETY CODE § 481.002(8). Thus, the State in this

case was required to prove that Jones exercised control, management, or care over

the PCP, that he knew that the substance in the box was PCP, and that he had a

conscious objective or desire to transfer it to another person. However, the State

was entitled to rely upon circumstantial evidence because it “is as probative as

direct evidence in establishing the guilt of the actor, and circumstantial evidence

alone may be sufficient to establish guilt.” Carrizales, 414 S.W.3d at 742 (citing

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

      Regardless of whether the evidence is direct or circumstantial, it must

establish that a defendant’s connection to the contraband was more than fortuitous.

Poindexter, 153 S.W.3d at 405–06. However, presence or proximity, when

combined with other evidence, either direct or circumstantial, may be sufficient to

establish the element of possession beyond a reasonable doubt. Evans v. State, 202

S.W.3d 158, 162 (Tex. Crim. App. 2006). The Court of Criminal Appeals has

recognized numerous “links” as non-exclusive factors that may establish



                                         11
possession, including whether: (1) the defendant was present when a search was

conducted; (2) the contraband was in plain view; (3) the defendant was in

proximity to and accessible to the contraband; (4) the defendant was under the

influence of narcotics when arrested; (5) the defendant possessed other contraband

when arrested; (6) the defendant made incriminating statements when arrested;

(7) the defendant attempted to flee; (8) the defendant made furtive gestures;

(9) there was an odor of contraband; (10) other contraband or drug paraphernalia

was present; (11) the defendant owned or had the right to possess the place where

the contraband was found; (12) the place where the contraband was found was

enclosed; (13) the defendant was found with a large amount of cash; and (14) the

conduct of the defendant indicated a consciousness of guilt. Id. at 162 n.12. These

factors do not comprise “an independent test of legal sufficiency.” Id. at 161–62

n.9. Rather, the key legal question is whether the circumstances, in conjunction

with a defendant’s presence, justify a conclusion that the defendant knowingly

possessed the contraband. Id. “It is the logical force of the circumstantial evidence,

not the number of links, that supports a jury’s verdict.” Id. at 166.

      Jones’s appellate argument centers on the lack of the kinds of links

identified in Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006). Jones is

correct that some of those factors are absent in this case. For example, he was not

under the influence of narcotics when he was stopped, he was not in possession of



                                          12
other contraband or a large amount of cash, and he did not attempt to flee. See

Evans, 202 S.W.3d at 162 n.12. But the “absence of various affirmative links does

not constitute evidence of innocence to be weighed against the affirmative links

present.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d).

      Other circumstantial evidence shows that Jones exercised control,

management, or care over the PCP and that he knew what it was. See Poindexter,

153 S.W.3d at 405. Jones was in possession of a box, addressed to him at a

restaurant where he said he worked. He went to the restaurant to pick up the box

after being contacted by the U.S. Postal Service. He possessed a mobile phone on

which there was a photograph of a similar box addressed to him at the same

location, indicating that a similar shipment had been made in the past. The text

messages were circumstantial evidence that Jones acted with knowledge and intent

because they showed a course of conduct in which large sums of money were

transferred to various bank accounts in exchange for the shipment of packages

from California to Texas. The text messages predated Jones’s arrest by a few

months, which shows knowledge or lack of surprise.

      Moreover, viewing the evidence in the light most favorable to the verdict

requires us to consider this evidence in conjunction with other evidence introduced

at trial, such as Commander Cash’s testimony that most of the PCP in the United



                                        13
States is made in California and shipped to other locations for distribution, that it

can be made and shipped in concentrations meant for later dilution, and that the

amount of PCP found in the box addressed to Jones was “way too much” for

personal use. Other circumstantial evidence also includes Deputy Martin’s

testimony about the bank deposit slips found in the car that Jones was driving. The

receipts showing the deposit are consistent with the text messages; the blank

deposit slips are circumstantial evidence of an ongoing operation in which deposit

slips would be used. Finally, we cannot ignore the fact that the box actually

contained 2,643 grams of PCP, which Cash testified was more than a useable

amount. Viewing the evidence in the light most favorable to the verdict, we

conclude that a rational jury could have found beyond a reasonable doubt that

Jones possessed PCP in an amount greater than 400 grams with intent to deliver it.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525.

Accordingly we overrule Jones’s second issue.

   II.     Evidentiary challenges

         In his first issue, Jones argues that the trial court erred by admitting

“unauthenticated information” downloaded from the mobile phone that was in his

possession when he was arrested. He contends the phone was not his and the

evidence did not show that he was responsible for the information on it. He also




                                         14
argues that text messages from that phone and testimony from the arresting officer

regarding bank deposit slips found in the car were inadmissible hearsay.

      We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). As with other

types of evidentiary rulings, we uphold the trial court’s decision unless it lies

outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). The test for

abuse of discretion is whether the ruling was arbitrary or unreasonable.

Montgomery, 810 S.W.2d at 380. We “may uphold a trial court’s ruling on any

legal theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331, 336

(Tex. Crim. App. 2002).

      A.    Authenticity of information from mobile telephone

      Jones frames his challenge to the admission of information from the phone

as an issue of the evidence’s authenticity. As a condition precedent to

admissibility, the proponent of the evidence must satisfy the requirement of

authentication by showing that “the matter in question is what its proponent

claims.” TEX. R. EVID. 901(a). The question of authentication arises when the

relevance of proffered evidence “‘depends upon its identity, source, or connection

with a particular person, place, thing or event.’” Angleton v. State, 971 S.W.2d 65,



                                        15
70 (Tex. Crim. App. 1998) (quoting 2 Steven Goode, et al., TEXAS PRACTICE

GUIDE TO TEXAS RULES OF EVIDENCE: CIVIL & CRIMINAL § 9.01, at 191–92 (2d ed.

1993)). In performing its “gate-keeping function, the trial court itself need not be

persuaded that the proffered evidence is authentic.” Tienda v. State, 358 S.W.3d

633, 638 (Tex. Crim. App. 2012). “The preliminary question for the trial court to

decide is simply whether the proponent of the evidence has supplied facts that are

sufficient to support a reasonable jury determination that the evidence he has

proffered is authentic.” Id.

       “Evidence may be authenticated in a number of ways, including by direct

testimony from a witness with personal knowledge, by comparison with other

authenticated evidence, or by circumstantial evidence.” Tienda, 358 S.W.3d at 638;

see Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d)

(authentication may be shown by circumstantial evidence). It need not be proven

beyond a reasonable doubt, and the proponent of the evidence is not required to

rule out all possibilities inconsistent with authenticity. Manuel, 357 S.W.3d at 74.

Moreover, in light of the diverse variety of electronic evidence, “as with the

authentication of any kind of proffered evidence, the best or most appropriate

method for authenticating electronic evidence will often depend upon the nature of

the evidence and the circumstances of the particular case.” Tienda, 358 S.W.3d at

639.



                                        16
      The text messages admitted in this case show conversations between people

sending messages from various phone numbers. The senders were identified by

names entered into the contact list. The user of the phone in question was identified

only as “Me.” In the trial court Jones argued that he did not own the phone in

question. Similarly, on appeal, he argues that he “could have also been using

someone else’s phone.” Thus, Jones argues the State failed to establish that he was

responsible for all the pictures, text messages, contacts, and other information

found on the phone. In other words, he contends that there was insufficient

evidence to show that he was the “Me” identified in the text messages, and

therefore the court erred by admitting all of the evidence obtained from the mobile

phone.

      The State argued that the evidence showed Jones’s connection to the mobile

phone: he was in possession of it at the time of arrest, he answered it and spoke to

an acquaintance while detained by law enforcement officers, and it rang

continually thereafter during the traffic stop. At one point in the video, Jones

referred to the phone as his. At trial, Pearly “Baby” Green testified that the phone

was hers and that she allowed her son James Green to use it as well. But the

phone’s contact list included entries for both “Baby” and James, identifications

that would be unnecessary if the phone belonged to either of them. The phone also

included photographs of Jones, and photographs of shipping labels on boxes,



                                         17
including one addressed to Jones at the same restaurant where he picked up the box

in this case.

       Jones relies on Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), in

which the Court of Criminal Appeals considered whether the trial court erred by

admitting evidence from a social-networking profile that the State contended was

created by the defendant. 358 S.W.3d at 634. In Tienda, the defendant was charged

with murder resulting from a multiple-car shootout. Id. Evidence of his

involvement in the shootout was inconsistent, but the State proffered evidence

from several social-networking accounts that it believed were created by the

defendant and which included incriminating information. Id. at 635–36. The

profiles were not created with the defendant’s legal name, and his theory appeared

to be that he did not create the profiles and they should not be used against him.

See id. But the profiles did reflect his nicknames, email addresses associated with

him, photographs of a person who bore a resemblance to him, and specific

information about the charged offense and his co-conspirators. Id. at 636. The

Court of Criminal Appeals held that there was sufficient circumstantial evidence

connecting the defendant with the social-networking evidence to establish a prima

facie case that he was responsible for the content. Id. at 642.

       Jones argues that there is less evidence to support authentication in this case

than there was in Tienda. For example, he argues that there was no evidence of the



                                          18
account holder for the phone, who paid for the account, when it was opened, or the

identity of the pets shown in some of the photographs. He also argues that a

photograph on the phone of a package addressed to James Green and a text

message to “Me” that stated “James Holla at me” show that James Green “was in

charge of the phone.” However, the proponent of the proffered evidence need not

eliminate all other possibilities inconsistent with authenticity. Manuel, 357 S.W.3d

at 74. The question is whether the evidence would support a determination by a

reasonable jury that the evidence is what it is purported to be. Tienda, 358 S.W.3d

at 638.

      Here the State offered the evidence from the phone as information and

content that was within Jones’s control. In support of that, the State relied on

circumstantial evidence connecting Jones to the phone at the time of his arrest.

This included Jones’s possession and use of the phone when stopped by Deputy

Martin, the identification of phone numbers in the phone suggesting that it was

used to communicate with “Baby” and with James but not with him, photographs

showing a shipping label addressed to him at the restaurant where he worked, and

text messages regarding bank transactions consistent with bank receipts found in

the car he was driving. Though individual pieces of the circumstantial evidence,

standing alone, could have led to a different inference, taken together, we conclude




                                        19
that the evidence supported a prima facie case that the phone and its contents

belonged to Jones. See Tienda, 358 S.W.3d at 638; Manuel, 357 S.W.3d at 76.

      B.     Hearsay objections

      Jones also objected to the admission of certain evidence as hearsay. In

particular, he challenges photographs of shipping labels found on the mobile

phone, one addressed to himself and another addressed to James. He also

challenges the admission of text messages that stated the names of banks, amounts

of money, and what appeared to be account numbers. Finally, Jones argues that the

court erred by permitting Deputy Martin to testify about bank deposit slips he

found in the car.

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” TEX. R. EVID. 801(d). This includes both oral and written expressions.

TEX. R. EVID. 801(a)(1). “An out-of-court statement which is not offered to prove

the truth of the matter asserted therein, but is offered for some other reason, is not

hearsay.” Stafford v. State, 248 S.W.3d 400, 407 (Tex. App.—Beaumont 2008, pet.

ref’d) (citing Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999)). A

statement is not hearsay if its relevancy does not hinge on its truthfulness. Johnson

v. State, 425 S.W.3d 344, 346 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).




                                          20
      Statements that constitute admissions by a party opponent are also not

hearsay. TEX. R. EVID. 801(e)(2). These include a party’s own statement, a

statement that he has adopted or in which he has manifested a belief in its truth,

and a statement made by a co-conspirator during the course and in furtherance of

the conspiracy. TEX. R. EVID. 801(e)(2)(A), (B), (E); Trevino v. State, 991 S.W.2d

849, 853 (Tex. Crim. App. 1999).

      1.    Photographs of shipping labels.—With respect to the photographic

evidence from the phone, Jones argues that it was used by the State “to offer

circumstantial evidence that the packages were being shipped from California to

Appellant and James Green.” The photographs show the recipient’s name and

address but not the sender’s name and address. However, at trial the State offered

photographs of the box found in this case, including labels showing it originated in

Long Beach, California. These photographs were admitted without objection.

Thus, even if the label information were hearsay, its admission would be harmless

because substantially the same evidence was admitted elsewhere without objection.

See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998).

      2.    Text messages.—Jones challenges the admission of text messages on

hearsay grounds because they stated the names of banks, amounts of money, and

what appeared to be account numbers. He contends that these text messages were

hearsay because they were “out of court statements meant to prove that large



                                        21
amounts of money were being sent or received and that the holder of the phone had

something to do with these movements.”

      The trial court held a hearing outside the presence of the jury to consider the

admissibility of the text messages and other information obtained from the phone.

The State identified the following text messages as being of primary interest:

         • Exhibit 25. On October 6 at 4:25 PM, from “Kool” to “Me”
           stating, “Wells Fargo Jermaine Dickson 2936574421 $4000.”

         • Exhibit 26. On October 6 at 4:26 PM, from “Kool” to “Me”
           stating, “Bank of America Maurice Kelly 442275257 $4000.”

         • Exhibit 27. On October 24 at 12:00 AM, from “Kool” to “Me”
           stating, “Wells Fargo Jermaine Dickson 2936574421 $4000
           Bank of America Alisha Franklin 2441641378 $3000 Bank of
           America Maurice Kelly 442275257 $5150”

         • Exhibit 28. On November 2 at 4:10 PM, from “Kool” to “Me”
           stating, “404925799 Takeshia BRYANT”

         • Exhibit 29. On November 2 at 4:23 PM, from “Kool” to “Me”
           stating, “Bank of America Takeshia Bryant 0192175686 $3800
           Chase Bank Takeshia Bryant 404925799 $3800”

         • Exhibit 30. On November 2 at 4:35 PM, from “Me” to “Kool”
           stating, “Branch number 281 931 6698 bank of America”

         • Exhibit 31. On November 2 at 4:48 PM, from “Kool” to “Me”
           stating, “Takeshia Bryant 3032990404”

         • Exhibit 32. On November 2 at 5:04 PM, from “Me” to “Kool”
           stating, “Branch number 281 591 5918 chase”

         • Exhibit 33. On November 2 at 8:56 PM, from “Kool” to “Me”
           stating, “James holla at me!”



                                         22
• Exhibit 34. On November 4 at 3:41 PM, from “Kool” to “Me”
  stating, “B of A Alisha Franklin 2441641378 4270 B of A
  Lasonia Scott 0192810314 5220”

• Exhibit 34. On November 4 at 4:22 PM, from “Kool” to “Me”
  stating, “In the air!”

• Exhibit 34. On November 4 at 5:07 PM, from “Kool” to “Me”
  stating, “How long will you be cause they got to have time to
  verify it before they close down their?”

• Exhibit 34. On November 4 at 5:08 PM, from “Me” to “Kool”
  stating, “We at the bank of america now.”

• Exhibit 34. On November 4 at 5:09 PM, from “Kool” to “Me”
  stating, “Bet.”

• Exhibit 35. On November 4 at 5:11 PM, from “Kool” to “Baby
  Voice Mail” marked as “*Urgent*” and showing photographs
  of a shipping label bar code and label addressed to “James
  Green” in Spring, Texas.

• Exhibit 36. On November 4 at 5:12 PM, from “Kool” to “Baby
  Voice Mail” marked as “*Urgent*” and showing photographs
  of a shipping label bar code and label addressed to Jones.

• Exhibit 37. On November 4 at 5:28 PM, from “Me” to “Kool”
  stating, “Bank of america branch number is 713 684 4800.”

• Exhibit 38. On November 4 at 5:51 PM, from “Kool” to “Me”
  stating, “Bank of America Lasonia Scott 0192810314 $3490.”

• Exhibit 39. On November 9 at 11:11 AM, from “Kool” to “Me”
  stating, “Chase Bank Joshua Gilmore 959959156 $5100 Bank
  of America Keyonta Glasper 2463214208 $5100 Jermaine
  Dickson Chase Bank 411528040 $4000 Shale.”

• Exhibit 39. On November 9 at 11:11 AM, from “Kool” to “Me”
  stating, “thia Franklin Chase Bank 4376630012 $1750.”



                            23
         • Exhibit 40. On November 9 at 12:49 PM, from “Kool” to “Me”
           stating, “Bank of America Maurice Kelly 442275257 $4280
           Chase Maurice Kelly 991942954 $4280 Chase Jermaine
           Dickson 411528040 $550.”

         • Exhibit 40. On November 9 at 4:37 PM, from “Kool” to “Me”
           stating, “How much did you deposit?”

         • Exhibit 41. On November 23 at 7:08 PM, from “Me” to “Kool”
           stating, “Big bro my phone went dead but i went to the other
           bank wells fargo in randalls they were close and I was on time
           way be fo six but they must have closed (2/2) at 3.00 pm.”

         • Exhibit 42. On November 25 at 5:45 PM, from “Kool” to “Me”
           stating, “Latonya Scott 7092160782 $3525.”

         • Exhibit 42. On November 25 at 5:52 PM, from “Me” to “Kool”
           stating, “Branch number is 281 465 2200 wells fargo.”

         • Exhibit 43. On November 26 at 2:30 PM, from “Kool” to “Me”
           stating, “James holla at me bro!”

      At trial, the State argued that the statements from “Me” to “Kool” were

admissions of a party opponent and therefore not hearsay, and that “the other text

messages would be entered to give context” to the statements. The trial court

agreed and admitted the messages as such.

      As we have explained, the State presented some evidence indicating that

Jones was responsible for the contents of the phone. Jones was apprehended just

after picking up a box containing PCP that was mailed to him at the address of a

restaurant. The text messages showed similar packages addressed to both Jones

and James Green. Two text messages addressed to “Me” included text addressing



                                       24
“James.” When Jones was arrested, he used the phone and identified it as his own.

However, the text messages identified other people by name and, along with the

testimony about the bank deposit receipts found in the car, showed a course of

conduct regarding depositing of large sums of money in various bank accounts

consistent with a drug dealing operation. Because an admission of a party opponent

includes both a party’s statements and statements made by a co-conspirator, even if

the jury believed that some of the messages sent by “Me” were made by James

Green, they would nevertheless be admissions of a party opponent. See TEX. R.

EVID. 801(e)(2)(E). This same reasoning similarly applies to the text messages that

came from “Kool.”

      At trial, the State also sought to admit other text messages, including those

from “Kool” to “Me.” In response to Jones’s hearsay objection, the State argued

that it was not offering these messages for the truth of the matters asserted. Rather,

it argued that the other text messages were admissible to “give context” to Jones’s

statements and to show what he did in reaction to them. Although the State does

not reurge this argument on appeal, it is a valid alternative reason upon which the

trial court could have admitted the challenged text messages. See Martinez, 91

S.W.3d at 336 (appellate court may uphold trial court’s ruling on any legal theory

applicable to the case).




                                         25
      The Texarkana court of appeals addressed a similar issue in Woolverton v.

State, 324 S.W.3d 794 (Tex. App.—Texarkana 2010, pet. ref’d), in which the

defendant challenged the trial court’s admission of a drug-ledger journal. 324

S.W.3d at 796. The trial court found that the drug ledger was not hearsay because

it was not offered to prove the truth of the matter asserted and admitted it over the

defendant’s hearsay objection. Id. at 800–01. The Texarkana court noted the

novelty of this particular issue and looked to federal precedent regarding the

admissibility of drug ledgers. Id. at 801. Several federal courts that had addressed a

similar issue determined that similar drug ledgers were offered as evidence of the

drug trade, or as a “tool of the trade,” rather than as evidence that particular

individuals owed money. Id. Similarly, the Texarkana court held that the trial court

correctly admitted the drug ledger because it was “a ‘tool of the trade’ and . . . an

item commonly associated with the practice of trading in illegal narcotics.” Id. at

801. The court of appeals concluded that the ledger was not offered to prove the

truth of the matters contained therein because it was not “used to prove particular

drug transactions that were elements of extraneous crimes or of any type of drug

conspiracy.” Id. at 801–02.

      Woolverton is analogous to this case. Here, the text messages were not

offered to show the truth of the matters asserted because they were not used to

prove that particular amounts of money were deposited in particular accounts. See



                                         26
Johnson, 425 S.W.3d at 346. The text messages showed a course of conduct

preceding the arrest in this case in which large sums of money were transferred to

various bank accounts in exchange for the shipment of packages from California to

Texas. The relevance of this evidence as circumstantial proof that Jones engaged in

drug transactions was not affected by the truthfulness of the specific messages, i.e.,

whether the phone numbers shown in the text messages actually belonged to the

people and banks as stated or whether Jones was actually at the bank at the time he

said he was there. As in Woolverton, the text messages were not used to prove

particular earlier drug transactions or that Jones had committed any extraneous

crime. The text messages, taken as a whole, were circumstantial evidence of

whether Jones acted with knowledge and intent. Accordingly, we conclude that the

text messages were not hearsay, and we hold that the trial court did not abuse its

discretion in admitting this evidence. See Woolverton, 324 S.W.3d at 801–02.

      3.     Testimony about bank deposit slips.—In addition to challenging the

court’s admission of evidence from the mobile phone, Jones argues that the court

erred by permitting Deputy Martin to testify about bank deposit slips he found in

the car. Deputy Martin testified that he found “several deposit slips for different

banks,” including Bank of America and Chase, in the center console of the car. He

testified that one was for $4,000 and that he thought another was for $3,500, but he

did not recall the exact amount. He also testified that there was a stack of blank



                                         27
deposit slips as well. At trial, Jones’s counsel objected to testimony about the

“dollar figures” as hearsay. The trial court overruled his objection. For the same

reasons why the text messages are not hearsay, this testimony was also not hearsay.

Deputy Martin’s testimony was not relevant for the truth of the exact amounts of

the bank deposits. It was relevant as circumstantial evidence connecting Jones to

the mobile phone he was using because he was driving the car where the deposit

slips were found just after he picked up a box addressed to him and containing

PCP. Accordingly, we hold that the trial court did not err by admitting this

testimony.

      Having concluded that the challenged evidence was not hearsay and that the

State made a prima facie case for its authenticity, we overrule Jones’s first issue.

   III.   Ineffective assistance of counsel

      In his third issue, Jones argues that he received ineffective assistance of

counsel. He alleges that his trial counsel failed to object to evidence that he

withheld consent to search the box found in his car. Jones also contends that his

counsel was ineffective for waiving any objections to the admission of a video

made at the time of his arrest.

      Claims that a defendant received ineffective assistance of counsel are

governed by the standard announced by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland



                                          28
mandates a two-part test: (1) whether the attorney’s performance was deficient,

i.e., whether counsel made errors so serious that he or she was not functioning as

the “counsel” guaranteed by the Sixth Amendment, and if so, (2) whether that

deficient performance prejudiced the party’s defense. 466 U.S. at 687, 104 S. Ct. at

2064. “The defendant has the burden to establish both prongs by a preponderance

of the evidence; failure to make either showing defeats an ineffectiveness claim.”

Shamim v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)); accord

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

      The adequacy of attorney performance is judged against what is reasonable

considering prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct.

at 2065. There is a presumption that, considering the circumstances, a lawyer’s

choices were reasonably professional and motivated by sound trial strategy. Id. at

689, 104 S. Ct. at 2065. In the face of this presumption, a criminal defendant has

the burden of showing by a preponderance of the evidence that his attorney failed

to provide reasonably effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). Limitations of the record often render a direct appeal ineffective

to adequately raise a claim of ineffective assistance of counsel. See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Critically, “[a]n ineffective-

assistance claim must be firmly founded in the record and the record must



                                        29
affirmatively demonstrate the meritorious nature of the claim.” Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012); accord Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). Therefore, when the record is silent as to trial

counsel’s strategy, we will not conclude that defense counsel’s assistance was

ineffective unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001).

      An error prejudicial to a criminal defendant is one that had an effect on the

judgment. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. A defendant need not

establish such an effect by a preponderance of the evidence but need only show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

      A.     Withholding consent to search the box

      Jones argues that by refusing to consent to the search of the box, he was

exercising a constitutional right to be free from unreasonable searches and seizures

and his invocation of this constitutional right should not have been used against

him as evidence of guilt. His trial counsel failed to object to the video showing his




                                          30
refusal to consent, Deputy Martin’s testimony about it, or the prosecutor’s closing

argument emphasizing it.

      Jones argues that it is improper to admit evidence of a defendant’s refusal to

consent to a search, and therefore his trial counsel was ineffective for failing to

object to such evidence. He relies on authorities indicating that a trial court errs by

admitting evidence that a defendant refused to consent to a search. See Powell v.

State, 660 S.W.2d 842, 845 (Tex. App.—El Paso 1983, no pet.) (search of

package); Reeves v. State, 969 S.W.2d 471, 495 (Tex. App.—Waco 1998, pet.

ref’d) (search of residence). While the Corpus Christi court of appeals has held that

a defense attorney rendered ineffective assistance of counsel by failing to object to

evidence that the defendant refused to consent to a search of his residence, Winn v.

State, 871 S.W.2d 756, 763 (Tex. App.—Corpus Christi 1993, no pet.), the Austin

and El Paso courts of appeals reached the opposite conclusion, holding that the

impropriety of admission of such evidence is not so firmly founded in the law that

no competent attorney would fail to object. Ex parte Owens, 860 S.W.2d 727, 730

(Tex. App.—Austin 1993, pet. ref’d); Cacy v. State, 901 S.W.2d 691, 697 (Tex.

App.—El Paso 1995, pet. ref’d).

      Regardless of whether trial counsel’s failure to object was error, Jones’s

claim that without evidence that he refused to consent to a search of the box, the

jury “might certainly have reached a different result” is not firmly founded in the



                                          31
record. See Menefield, 363 S.W.3d 592. The record in this case shows that trial

counsel advocated for Jones by seeking appointment of an investigator, by filing a

motion in limine, by pursuing his theory of entrapment, by actively participating in

voir dire, by promptly filing a motion for new trial and a motion to withdraw,

ensuring the timely appointment of appellate counsel. The record also reflects

counsel’s efforts to keep objectionable portions of the video from the jury and that

the court ruled in his favor on that issue. He cross-examined the State’s witnesses

and presented witnesses to contradict the State’s theory of the case and to present

an alternative and exculpatory explanation for the evidence presented in this case.

      Even if the failure to object was error, the impact of such alleged error

would be only slight. Jones’s denial of consent was not the only evidence that

showed he was aware of the contents of the package. We have already explained,

without reference to Jones’s refusal to consent to search of the box, that the

evidence was sufficient to support the jury’s verdict in that regard. The evidence

obtained from the mobile phone, the circumstances of the delivery of the package,

and the quantity of PCP in the package—which exceeded an amount for personal

use—all were evidence that Jones knew the package contained PCP, a controlled

substance. In light of the record as a whole, we conclude that even if trial counsel’s

performance fell below the standard of prevailing professional norms in this

regard, Jones has not shown that but for his counsel’s alleged unprofessional



                                         32
errors, the result of the proceeding would have been different. See Strickland, 466

U.S at 688, 694, 104 S. Ct. at 2065, 2068.

      B.     Admission of the unredacted videorecording

      Jones also argues that his trial counsel was ineffective for failing to object to

the admission of both the redacted and unredacted versions of the video of his

arrest. Jones contends that the admission of both versions in conjunction with the

court’s instruction to the jury that “all the evidence” was before it created a risk

that the jury may have viewed the unredacted video while deliberating. In his brief,

Jones acknowledges that “there nothing in the record about whether the jury

viewed the videos while deliberating.” As such, this claim is not firmly founded in

the record of this direct appeal. See Menefield, 363 S.W.3d at 592. Without

extrinsic evidence which is not present in the appellate record, Jones is unable to

show that his counsel’s performance was deficient or how that allegedly deficient

performance may have prejudiced his defense. See Strickland, 466 U.S. at 687, 104

S. Ct. at 2064. We overrule this portion of Jones’s third issue.




                                          33
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




                                        34
