                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00239-CR

GRADY RODRIGUEZ, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 413th District Court
                            Johnson County, Texas
                            Trial Court No. F47110


                         MEMORANDUM OPINION


      A jury found Appellant Grady Rodriguez, Jr. guilty of two counts of delivery of a

controlled substance, namely methamphetamine, in an amount of one gram or more but

less than four grams, and assessed his punishment, enhanced by a prior felony

conviction, at forty-eight years’ imprisonment and a $1,000 fine for each count, to be

served concurrently. This appeal ensued.

                                    Background

      Cleburne Police Investigator Mark Goetz and former Alvarado Police Officer
Nick Garrett, as members of the Stop The Offender Program (STOP) Special Crimes

Unit, were conducting an undercover operation in which a confidential informant (CI)

was to attempt to purchase methamphetamine at Manuel Gonzales’s house. The CI

testified that he had previously been pulled over with drugs after leaving Gonzales’s

house and that he had made a deal with the STOP Special Crimes Unit to perform three

controlled buys in exchange for them not pursuing the drug charges against him.

       Investigator Goetz testified that on May 15, 2012, the CI was supposed to

purchase an 8-ball (3.5 grams or 1/8 of an ounce) of methamphetamine at an

anticipated cost of $250 from Gonzales. Investigator Goetz stated that before the CI

went to Gonzales’s house, the CI had placed a telephone call to Gonzales to negotiate

the anticipated transaction. The CI was then given various instructions on how to

conduct himself and was provided a covert audio/video recorder, an electronic audio

transmitter, and $280. Investigator Goetz searched the CI’s vehicle and its contents

while Officer Garrett searched the CI’s person and any personal effects he had on his

person. Neither Investigator Goetz nor Officer Garrett found any contraband in their

searches, and the CI testified that he was not hiding any drugs on himself or in his

vehicle. The CI then drove directly to Gonzales’s house. Investigator Goetz and Officer

Garrett followed him part of the way and then relied upon the audio transmitter to

monitor what was happening.

       An audio/video recording of the CI’s drive to Gonzales’s house, the alleged

transaction, and the CI’s return drive to the location where he again met with

Investigator Goetz and Officer Garrett was admitted into evidence. The CI testified that

Rodriguez v. State                                                                Page 2
when he arrived at Gonzales’s house, Rodriguez greeted him at the door. The CI went

inside, and Rodriguez informed Gonzales that the CI was there. When Gonzales came

inside the house, the CI gave him $250. Gonzales then asked Rodriguez to give the CI

another 8-ball.      Rodriguez took out an 8-ball of methamphetamine and gave it to

Gonzales, who then gave it to the CI.

       The CI left Gonzales’s house, and Investigator Goetz testified that he and Officer

Garrett followed him to a predetermined location. Officer Garrett testified that at the

predetermined location, he collected the drug evidence and the remaining $30 from the

CI. Investigator Goetz stated that he and Officer Garrett then debriefed the CI as to

what happened at the house and retrieved all the recording devices. Investigator Goetz

and Officer Garrett also again conducted searches of the CI’s vehicle and its contents

and the CI’s person and any personal effects he had on his person. Investigator Goetz

and Officer Garrett did not find any contraband in their searches.

       Investigator Goetz testified that on May 17, 2012, the CI made another purchase

of methamphetamine. Investigator Goetz and Officer Garrett again met with the CI at a

predetermined location. Investigator Goetz stated that before the CI went to Gonzales’s

house, the CI again initiated a telephone call to Gonzales to confirm the anticipated

transaction. The CI was then again given various instructions on how to conduct

himself and was again provided a covert audio/video recorder, an electronic audio

transmitter, and $250. Investigator Goetz searched the CI’s vehicle and its contents

while Officer Garrett searched the CI’s person and any personal effects he had on his

person. Neither Investigator Goetz nor Officer Garrett found any contraband in their

Rodriguez v. State                                                                 Page 3
searches. The CI then drove directly to Gonzales’s house. Investigator Goetz and

Officer Garrett followed him part of the way and then relied upon the audio transmitter

to monitor what was happening. Investigator Goetz stated that by this time, they had

also installed a telephone-pole camera in the area, which allowed them to directly

monitor activities at Gonzales’s house from off-site.

       An audio/video recording of the CI’s drive to Gonzales’s house, the alleged

transaction, and the CI’s return drive to the location where he again met with

Investigator Goetz and Officer Garrett was admitted into evidence. The CI testified that

as soon as he went inside Gonzales’s house, he paid Gonzales the $250. The CI stated

that Gonzales had been expecting him to buy another 8-ball of methamphetamine. The

CI and Rodriguez then got into the CI’s vehicle and drove around the block to Danielle

Rodriguez’s house. When they arrived at Danielle’s house, Rodriguez got out of the car

and went to the door, but Danielle called him over to the window. Rodriguez went

over to the window and got an 8-ball of methamphetamine from Danielle. Rodriguez

then got back into the vehicle and handed the CI the drugs.         The CI then drove

Rodriguez back around the block and dropped him off at Gonzales’s house.

       The CI left Gonzales’s house, and Investigator Goetz testified that he and Officer

Garrett again followed the CI to a predetermined location.       At the predetermined

location, Investigator Goetz took possession of the drug evidence. Investigator Goetz

and Officer Garrett then debriefed the CI as to what had happened. Investigator Goetz

and Officer Garrett also again conducted searches of the CI’s vehicle and its contents

and the CI’s person and any personal effects he had on his person. Investigator Goetz

Rodriguez v. State                                                                 Page 4
and Officer Garrett did not find any contraband in their searches.

                          Lesser-Included-Offense Instruction

       In his first issue, Rodriguez contends that, as to Count Two, which involved the

May 17, 2012 transaction, he should have received an instruction on the lesser-included

offense of possession of a controlled substance.

       A claim of jury-charge error is reviewed using the procedure set out in Almanza.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is error in

the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Only if we find

error, do we then analyze that error for harm. Id.

       We use a two-step analysis to determine whether an appellant was entitled to a

lesser-included-offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App.

2007); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser

offense must be a lesser-included offense of the charged offense as defined by article

37.09 of the Code of Criminal Procedure. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim.

App. 1998); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).             Article 37.09

provides:

       An offense is a lesser included offense if:

       (1) it is established by proof of the same or less than all the facts required
       to establish the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious
       injury or risk of injury to the same person, property, or public interest
       suffices to establish its commission;


Rodriguez v. State                                                                       Page 5
       (3) it differs from the offense charged only in the respect that a less
       culpable mental state suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise
       included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09.

       Second, there must be some evidence in the record that would permit a jury to

rationally find that if the appellant is guilty, he is guilty only of the lesser offense. Hall,

225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau,

855 S.W.2d at 672-73. The evidence must be evaluated in the context of the entire

record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational

jury could acquit the appellant of the greater offense while convicting him of the lesser-

included offense. Id. The court may not consider whether the evidence is credible,

controverted, or whether it conflicts with other evidence. Id. Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Hall, 225

S.W.3d at 536.

       Possession of a controlled substance can be proved by the same facts necessary to

establish a delivery of a controlled substance. Jones v. State, 586 S.W.2d 542, 545 (Tex.

Crim. App. [Panel Op.] 1979). Possession of a controlled substance may therefore be a

lesser-included offense of delivery of a controlled substance, and so, the first step of the

analysis would be satisfied. See TEX. CODE CRIM. PROC. ANN. art. 37.09. However, there

is no evidence in the record from which a rational jury could acquit Rodriguez of

delivery of a controlled substance in Count Two while convicting him of possession of a

controlled substance in Count Two. Rodriguez argues that the evidence from which a

Rodriguez v. State                                                                       Page 6
jury could convict him of only possession of a controlled substance in Count Two is the

CI’s testimony that Rodriguez went to Danielle’s house, took the 8-ball of

methamphetamine, and brought it back to the CI’s vehicle. But the only context in

which the CI testified about Rodriguez possessing methamphetamine on May 17, 2012

was in the context of Rodriguez delivering the methamphetamine to him. The CI’s

testimony was that Rodriguez got the 8-ball of methamphetamine from Danielle for the

purpose of delivering it to him and that Rodriguez did in fact give the 8-ball of

methamphetamine to him when he got back in the vehicle. The second step of the

analysis cannot by satisfied. See Moore, 969 S.W.2d at 8.

       The trial court properly overruled Rodriguez’s request for an instruction on the

lesser-included offense of possession of a controlled substance as to Count Two. See id.

We overrule Rodriguez’s first issue.

                                   Unanimous Verdict

       In his second issue, Rodriguez contends that the trial court erred by submitting a

jury charge that did not require jury unanimity because the application paragraphs in

the guilt/innocence charge instructed the jury that it could find him guilty if it found

that he, “acting alone or as a party,” made the deliveries of methamphetamine. As with

Rodriguez’s first issue, the first step is to determine whether there is error in the charge.

Ngo, 175 S.W.3d at 743.

       “Both Article V, Section 13 of the Texas Constitution and Article 36.29(a) of the

Texas Code of Criminal Procedure require unanimous jury verdicts in all felony cases.”

Leza v. State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011); see TEX. CONST. art. V, § 13; TEX.

Rodriguez v. State                                                                     Page 7
CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2013).               There is no general

requirement, however, that the jury reach unanimous agreement on preliminary factual

issues that underlie the verdict, such as the manner and means by which one offense

was committed. See Schad v. Arizona, 501 U.S. 624, 632, 111 S.Ct. 2491, 2497, 115 L.Ed.2d

555 (1991) (plurality); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).

       The Court of Criminal Appeals observed in Leza that “it would be plainly absurd

to require the jury to acquit the accused unless it can unanimously determine his status

as a principal actor or a party and, if the latter, what his exact party accountability

might be.” Leza, 351 S.W.3d at 357. The court explained that the provisions of section

7.02 of the Penal Code, which define party liability, do not contain elements of the

underlying offense, but rather “describe alternative manners by which an accused may

be held accountable for the conduct of another who has committed the constituent

elements of a criminal offense.” Id.; see TEX. PENAL CODE ANN. § 7.02 (West 2011). Thus,

if the jury determines that the accused is guilty of every constituent element of the

alleged penal offense—“either as a principal actor or under some theory of party

liability”—the jury is not required to unanimously determine what his “precise role”

was in the offense. Leza, 351 S.W.3d at 357.

       In this case, Rodriguez was charged with one offense in each of Counts I and II—

delivery of a controlled substance, namely methamphetamine, in an amount of one

gram or more but less than four grams. The alleged theories of culpability as principal

or party were merely alternate methods or means by which Rodriguez allegedly

committed the one charged offense. See id. And the jury was not required to be

Rodriguez v. State                                                                       Page 8
unanimous concerning the manner in which Rodriguez was culpable—as the principal

actor or as a party to the offense. See id. We therefore hold that there was no error in

the jury charge and overrule Rodriguez’s second issue.

                               Admissibility of Photographs

       Before trial, Investigator Goetz took photographs of Rodriguez’s tattoos. The

State offered those photographs into evidence, State’s Exhibit Nos. 15-22 and 24-36.

Rodriguez made several objections to the admission of the photographs in relevant part

as follows:

               [Defense Counsel]: ….

               And number two, number two, Judge, you can see, especially on
       that first photo, you can see his - - he’s wearing a prison uniform, so that’s
       going to impermissibly suggest to the Jury that he is in custody or has
       been in custody. I - - and would therefore be inflammatory.”

               ….

              [Defense Counsel]: Number three, we would object that it shows
       that he’s wearing prison clothes in some of these and that was - - will be
       inflammatory to the Jury.

The trial court overruled Rodriguez’s objections and admitted the photographs into

evidence. In his third issue, Rodriguez contends that the trial court erred by admitting

the photographs of him in jail clothes, i.e., State’s Exhibit Nos. 27, 28, 35, and 36.

       An objection to evidence as “inflammatory” is effectively an objection under rule

403 that the probative value of the evidence is substantially outweighed by its

prejudicial effect. See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993);

Caballero v. State, 919 S.W.2d 919, 921 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).


Rodriguez v. State                                                                       Page 9
We review the trial court’s ruling on a rule 403 objection for an abuse of discretion. See

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

       When a trial court balances the probative value of the evidence against its danger

of unfair prejudice, a presumption exists that the evidence will be more probative than

prejudicial. Montgomery, 810 S.W.2d at 389.

       [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
       inherent probative force of the proffered evidence along with (2) the
       proponent’s need for that evidence against (3) any tendency of the
       evidence to suggest decision on an improper basis, (4) any tendency of the
       evidence to confuse or distract the jury from the main issues, (5) any
       tendency of the evidence to be given undue weight by a jury that has not
       been equipped to evaluate the probative force of the evidence, and (6) the
       likelihood that presentation of the evidence will consume an inordinate
       amount of time or merely repeat evidence already admitted. Of course,
       these factors may well blend together in practice.

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted)).

       Probative force of the evidence: Rodriguez does not argue in his brief that the

photographs were irrelevant but only that they were inflammatory. The State argues

that the photographs were relevant in proving the identity of Rodriguez as the person

seen in the videos delivering the methamphetamine. The four photographs in question

show the tattoos on one of Rodriguez’s arms. In the audio/video recording from May

17, 2012, the arms of the person alleged to be Rodriguez are visible and do show a

number of tattoos. On the other hand, when Investigator Goetz identified at trial the

photographs showing tattoos that were also depicted in the audio/video recordings, he

did not mention any of the four photographs in question. The probative force of the


Rodriguez v. State                                                                   Page 10
four photographs specifically is therefore uncertain.

       Then again, Rodriguez’s objection in the trial court did not single out the four

photographs; rather, his objection was to the photographs of his tattoos altogether.

Considering the photographs altogether, we conclude that they were indeed probative

in establishing the identity of Rodriguez as the person seen in the videos delivering the

methamphetamine. Investigator Goetz identified three photographs showing tattoos

that were depicted in the audio/video recordings.

       Proponent’s need for that evidence: Again, Rodriguez does not argue in his brief

that the photographs were irrelevant or that the State did not need the photographs, but

only that the photographs were inflammatory.            The only evidence showing that

Rodriguez actually delivered methamphetamine was the audio/video recordings and

the CI’s testimony. Rodriguez challenged the credibility of the CI; therefore, the State

did need evidence proving the identity of Rodriguez as the person seen in the videos

delivering the methamphetamine.

       Tendency of evidence to suggest a decision on an improper basis: Rodriguez argues

that the photographs suggested a decision on an improper basis as follows:

       Admitting those photos over Appellant’s objection was tantamount to
       forcing him to attend his trial in those same jail clothes because it was an
       impediment to the fairness of the factfinding process and because it
       invaded his right to a presumption of innocence. The result of the jury
       seeing those photos would have the exact same result of him being inside
       the courtroom in clothing which bears the indicia of incarceration.

We disagree.         Each of the four photographs in question shows a small portion of

Rodriguez’s right leg covered with striped clothing. There is no indication that the


Rodriguez v. State                                                                    Page 11
clothing is jail clothing.     Rodriguez was neither handcuffed nor shackled in the

photographs. Thus, the four photographs had limited potential to impress the jury in

an irrational way. See Hajjar v. State, 176 S.W.3d 554, 561-62 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d); Lovely v. State, 894 S.W.2d 99, 102-03 (Tex. App.—Beaumont 1995,

pet. ref’d).

         Jury confusion or distraction, undue weight, and amount of time or repetition: These

factors concern whether presentation of the evidence consumed an inordinate amount

of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or

to cause the jury to place undue weight on its probative value. See Gigliobianco, 210

S.W.3d at 641-42; Newton, 301 S.W.3d at 320. The testimony about the photographs in

question was very brief. It was not repetitious, and we do not believe that it could

cause jury confusion or distraction or cause the jury to give it undue weight.

         Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the admission of State’s

Exhibit Nos. 27, 28, 35, and 36 and their probative value. We overrule Rodriguez’s third

issue.

                                           Hearsay

         In his fourth issue, Rodriguez contends that the trial court erred by admitting

inadmissible hearsay.      More specifically, Rodriguez complains, “During the direct

Rodriguez v. State                                                                    Page 12
examination of [Investigator] Goetz, the State asked him about damning statements

made by Manuel Gonzalez [sic], and video footage of the May 15th transaction was

admitted with Gonzalez [sic] making hearsay statements on that video.”

       The relevant facts are as follows:       The State offered into evidence the

audio/video recording from May 15, 2012 of the CI’s drive to Gonzales’s house, the

alleged transaction there, and the CI’s return drive to the location where he again met

with Investigator Goetz and Officer Garrett. Rodriguez objected, in part, at that point,

“[W]e would object to any hearsay statements that are contained on this video, any

statements of witnesses that are not going to be called.” The trial court overruled the

objection, and the recording was admitted into evidence. A portion of the recording

was then played in open court. At that time, Rodriguez again objected, “Judge, as not

to interrupt the video while it’s playing, may we have a running objection to any

hearsay statements that are contained within the recording?” The trial court replied,

“Yes, sir.” After several more portions of the recording were played, during which

Investigator Goetz also answered several questions, the following exchange took place:

              Q. [Prosecutor] And can you explain for us what just transpired on
       the video?

              A. [Investigator Goetz] Manuel Gonzales enters the residence and
       inquires if [the CI] had the $250.

                     [Defense Counsel]: Judge, I’m going to object to that as
       speculation and also he’s referencing hearsay statements made on the
       tape, unless they plan to call Manuel Gonzales as a witness.

                     THE COURT: Overrule.

                     [Prosecutor]: Thank you.

Rodriguez v. State                                                                 Page 13
                     You can proceed.

              A.     Manuel Gonzales inquires if [the CI] had the $250. [The CI]
       replies affirmatively. Manuel Gonzales then directs his attention to Grady
       Rodriguez and asks Grady if he has another ball, which is a common term
       for one-eighth of an ounce, 3.5 grams, an 8-ball or a ball. Then Grady
       Rodriguez presents his hands in a manner which is consistent with
       providing Manuel Gonzales with the requested item. Afterwards, Manuel
       Gonzales is heard saying, “There you go”, whereby Manuel Gonzales is
       the person actually making the transfer to [the CI].

       Hearsay complaints must be preserved with a timely and specific objection to the

evidence. Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996); see TEX. R. APP. P.

33.1(a).   When an exhibit contains both admissible and inadmissible evidence, the

objection must specifically identify what portions are inadmissible to apprise the trial

court of the exact objection, and to preserve a complaint. Sonnier v. State, 913 S.W.2d

511, 518 (Tex. Crim. App. 1995).

       In this case, Rodriguez’s hearsay objections to the audio/video recording from

May 15, 2012 did not specifically identify what portion(s) of the recording to which his

objections applied. Instead, Rodriguez objected generally to all hearsay statements

made in the recording. Accordingly, Rodriguez has failed to preserve his hearsay

complaints about the audio/video recording from May 15, 2012. Furthermore, in light

of the foregoing conclusion and assuming without deciding that Rodriguez’s hearsay

objection to Investigator Goetz’s testimony preserved that complaint for review, we

conclude that any error in Investigator Goetz’s testimony about what Gonzales said on

the recording was cured because the audio/video recording of the May 15, 2012

transaction was admitted into evidence without proper hearsay objection. See Lane v.


Rodriguez v. State                                                                  Page 14
State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of

evidence is cured where the same evidence comes in elsewhere without objection.’”)

(quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to

evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.”). We overrule Rodriguez’s

fourth issue.

       Having overruled all of Rodriguez’s issues, we affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 28, 2014
Do not publish
[CRPM]




Rodriguez v. State                                                                 Page 15
