Opinion filed March 20, 2015




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-12-00370-CR
                                   __________

                 REGINALD LEVON COOK, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 266th District Court
                               Erath County, Texas
                         Trial Court Cause No. CR13660


                                  OPINION

      The jury convicted Reginald Levon Cook of delivery of more than four
grams but less than 200 grams of cocaine. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(a), (d) (West 2010).     The jury assessed Appellant’s punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of fourteen years and a fine of $5,000. Appellant challenges his
conviction in four issues. We affirm.
                                          Background Facts
        Appellant’s conviction for cocaine delivery arises out of Appellant’s sale of
drugs to a confidential informant.                The confidential informant, Lindsey Ford,
testified that she had used and sold drugs in the past and that she was familiar with
who sold drugs in Stephenville. In November 2010, Ford 1 agreed to work as a
confidential informant with the Stephenville Police Department in connection with
its undercover investigations of deliveries of controlled substances.
        Sergeant Curtis Dees, a fourteen-year officer with the Stephenville Police
Department, works in the Criminal Investigation Division. Sergeant Dees testified
about the use of confidential informants by the Stephenville Police Department to
conduct narcotics investigations and the types of operations in which confidential
informants are used. Sergeant Dees also outlined the process involved in using a
confidential informant, including pre- and post-buy searches of the informants, the
use of marked money, and audio and video recordings of the buys.
        Ford testified that, on December 29, 2010, she met up with Sergeant Dees
and Sergeant Ford for the purpose of making a drug buy from Appellant. Ford said
that she sent text messages to Appellant and agreed to buy two “eight-balls” of
cocaine from him for $270. An eight-ball of cocaine is 3.5 grams, or an eighth of
an ounce of cocaine. Ford testified that she met with Sergeant Dees and Sergeant
Ford at their office, where Staci King, the records clerk for the police department,
took her into a back room and searched her and her belongings. The officers then
equipped Ford with audio and video recording equipment to record the transaction
with Appellant.
        1
         As set forth below, one of the police officers involved in this case was Sergeant Russell Ford.
For the sake of clarity, we will refer to Lindsey Ford as “Ford” and will refer to Russell Ford as “Sergeant
Ford.” Sergeant Ford testified that he and Ford are not related.

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      Ford planned to buy cocaine from Appellant at the Bargain Town
convenience store. The officers dropped Ford off a few blocks away from Bargain
Town. Ford waited for Appellant at Bargain Town for a few minutes. After
receiving a text from Appellant, Ford walked across the street to the Riverwalk
Apartments. Ford then got into Appellant’s car, and they drove off. Ford testified
that, as they were driving off, she gave Appellant the money for the cocaine. Ford
said that Appellant immediately gave her the two eight-balls of cocaine. Appellant
then dropped Ford off a block away from her home.               Sergeant Dees and
Sergeant Ford picked up Ford a few minutes later. Ford gave the recording device
and the cocaine to Sergeant Dees and Sergeant Ford.
      At trial, the video of the transaction between Ford and Appellant was
admitted into evidence, along with photos of the text messages between Ford and
Appellant. The cocaine recovered by Sergeant Dees from Ford was also admitted
into evidence, along with the report of the lab analysis performed by
William Todsen with the Texas Department of Public Safety Crime Laboratory in
Abilene.
                                       Issues
      In his first issue, Appellant challenges the sufficiency of the evidence
supporting his conviction by asserting that the testimony of the confidential
informant was not sufficiently corroborated under the covert agent rule. Appellant
alleges in his second issue that the trial court erred in failing to include an
instruction in the court’s charge about the requirement that a covert agent’s
testimony be corroborated. In his third issue, he asserts that the trial court should
have granted a motion for new trial based upon the admission of extraneous
offense evidence during the guilt/innocence phase. In his final issue, Appellant
challenges the admission of the text messages.


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                    Corroboration of Covert Agent’s Testimony
      Article 38.141 of the Code of Criminal Procedure sets out the covert agent
rule, which states as follows:
            (a) A defendant may not be convicted of an offense under
      Chapter 481, Health and Safety Code, on the testimony of a person
      who is not a licensed peace officer or a special investigator but who is
      acting covertly on behalf of a law enforcement agency or under the
      color of law enforcement unless the testimony is corroborated by
      other evidence tending to connect the defendant with the offense
      committed.

             (b) Corroboration is not sufficient for the purposes of this
      article if the corroboration only shows the commission of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.141(a), (b) (West 2005). The standard for
evaluating the sufficiency of the corroboration of the testimony of a covert witness,
such as a confidential informant, is the same as that used for evaluating the
sufficiency of the corroboration of the testimony of an accomplice witness.
Malone v. State, 253 S.W.3d 253, 256–58 (Tex. Crim. App. 2008). Thus, when
weighing the sufficiency of corroborating evidence under Article 38.141(a), we
must exclude the testimony of the covert agent from consideration and examine the
remaining evidence to determine whether there is evidence that tends to connect
the defendant to the commission of the offense. Id. at 258. The tends-to-connect
standard does not present a high threshold. Randall v. State, 218 S.W.3d 884, 886
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Cantelon v. State, 85 S.W.3d
457, 461 (Tex. App.—Austin 2002, no pet.).
      Standing alone, the corroborating evidence need not prove the defendant’s
guilt beyond a reasonable doubt. Malone, 253 S.W.3d at 257. To be sufficient, the
corroborating evidence must show more than just the “mere presence” of the


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defendant at or near the scene of the crime. Id. However, the corroborating
evidence does not have to directly link the defendant to the crime. Taylor v. State,
328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref’d); Smith v. State, 211
S.W.3d 476, 478 (Tex. App.—Amarillo 2006, no pet.). Instead, the corroborating
evidence need only tend to connect the defendant to the offense. Malone, 253
S.W.3d at 258–59.           We review the corroborating evidence in the light most
favorable to the verdict. Taylor, 328 S.W.3d at 578; Smith, 211 S.W.3d at 478.
      Appellant contends that, without Ford’s testimony, “we have only
unidentified text message communications regarding the set-up of a drug deal.”
We disagree with Appellant’s limited view of the corroborating evidence.
      Sergeant Dees testified that Ford was working with the Stephenville Police
Department as a confidential informant. He and Sergeant Ford reviewed the text
messages exchanged between Ford and Appellant to set up the purchase of two
eight-balls of cocaine from Appellant on December 29, 2010. Ford met with
Sergeant Dees and Sergeant Ford on December 29, prior to the officers
transporting her to Bargain Town. During that meeting, King thoroughly searched
Ford and her belongings to make sure that Ford did not have any illegal drugs in
her possession prior to the transaction. 2                 The officers equipped Ford with a
recording device and gave her $270 in cash for the purchase of the cocaine.
      Sergeant Dees testified that he and Sergeant Ford observed Ford at Bargain
Town after they dropped her off near the convenience store.                              Sergeant Dees
testified that he recognized the car that Ford subsequently entered as being
Appellant’s car.       The officers maintained observation of Ford and Appellant.
Sergeant Dees testified that, soon after Appellant dropped off Ford near her house,
he and Sergeant Ford waited a few minutes for Appellant to drive away and then


      2
       King also testified at trial about her search of Ford prior to the transaction.

                                                     5
picked up Ford from her house.                The officers subsequently recovered
approximately two eight-balls of cocaine from Ford.
      The officers inspected the small hidden camera that they had placed in
Ford’s purse prior to transporting her to the convenience store and found that it had
recorded the entire transaction. The video was admitted into evidence during
Ford’s testimony and published to the jury at that time. Prior to Ford’s testimony
at trial, Sergeant Dees testified that he had reviewed the video and that he was able
to recognize Appellant in the video as the person with whom Ford was dealing.
Sergeant Dees also testified that he could observe Ford handing the cash to
Appellant on the video but that he could not observe what Appellant handed back
to Ford. Sergeant Ford also testified about the video. He testified that if the replay
of the video is slowed down, an “exchange” between Appellant and Ford can be
seen but that the exact nature of the thing that Appellant gave Ford cannot be seen
in the video. Our review of the video in both real time and slow motion confirms
the testimony of Sergeant Dees and Sergeant Ford regarding its depiction of the
exchange between Appellant and Ford.
      Under the applicable standard of review, we are required to review the
corroborating evidence in the light most favorable to the verdict.         The most
significant piece of corroborating evidence in this case is the video of the
transaction. The fact that Ford served as the sponsoring witness for the video
exhibit does not preclude it from serving as corroborating evidence because the
jury was able to watch the video and make its own determination regarding the
images depicted in the video. See Cantelon, 85 S.W.3d at 459–62 (jury able to
hear actual audio recording and view video recording). In Taylor, we rejected the
State’s reliance on a recording to serve as corroborating evidence for a covert
agent’s testimony because the recording was of extremely poor quality and
because, “[w]ithout the testimony of the confidential informant . . . , it would be
                                          6
impossible to understand from the recording what was taking place.” 328 S.W.3d
at 577. The video recording in this case is much different because the police
officers and the jurors themselves could observe what transpired. In this regard,
Sergeant Dees and Sergeant Ford testified about what they observed in the video,
including their identification of Appellant and the exchange between Appellant and
Ford.
        Sergeant Dees, Sergeant Ford, and King also testified about the search of
Ford prior to the transaction and about King’s confirmation that Ford did not have
any drugs in her possession at that time.           There was also testimony from
Sergeant Dees that Ford exchanged text messages, with an individual that Ford
identified as Appellant, to set up a purchase of two eight-balls of cocaine on
December 29 at the Bargain Town convenience store. Furthermore, Sergeant Dees
testified that Appellant was the individual that arrived at the appointed place and
time to meet with Ford and that the officers recovered approximately two eight-
balls of cocaine from Ford after the transaction.
        In this case, the jury could have rationally found that the corroborating
evidence tended to connect Appellant to the delivery of the cocaine. Malone, 253
S.W.3d at 258–59. Therefore, we hold that the evidence is sufficient to support
Appellant’s conviction. We overrule Appellant’s first issue.
            Jury Instruction on Corroboration of Covert Agent Testimony
        In his second issue, Appellant asserts that the trial court erred when it failed
to instruct the jury that a confidential informant’s testimony must be corroborated.
When reviewing jury charge error, we first determine if error actually exists in the
jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);
Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). If we find error, we then determine whether it harmed the defendant. Ngo,
175 S.W.3d at 743. The degree of harm requiring reversal depends upon whether
                                            7
an objection was raised at trial. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.
App. 1986). If the defendant did not make a proper objection at trial, he or she
“will obtain a reversal only if the error is so egregious and created such harm that
he ‘has not had a fair and impartial trial.’” Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (op. on reh’g). As we addressed above, a defendant
cannot be convicted based on the testimony of a confidential informant unless that
testimony is corroborated by other evidence tending to connect the defendant to the
crime. CRIM. PROC. art. 38.141(a). Failing to instruct the jury on this requirement
is error. Simmons v. State, 205 S.W.3d 65, 77 (Tex. App.—Fort Worth 2006, no
pet.).
         Appellant acknowledges that there was no objection to the failure to include
the confidential-informant-corroboration instruction. Accordingly, we review the
record for egregious harm. Almanza, 686 S.W.2d at 171. Jury charge error is
egregiously harmful if it affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218
S.W.3d 706, 719 (Tex. Crim. App. 2007).        In examining the record to determine
whether jury charge error is egregious, the reviewing court should consider the
entirety of the jury charge itself; the evidence, including the contested issues and
weight of the probative evidence; the arguments of counsel; and any other relevant
information revealed by the record of the trial as a whole. Id. Egregious harm is a
difficult standard to meet, and such a determination must be made on a case-by-
case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). Neither
party bears the burden on appeal to show harm or lack thereof under this standard.
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
         “Under the ‘egregious harm standard,’ the omission of a corroborating-
evidence instruction may be rendered harmless if other evidence than the testimony
of the accomplice witness or informant does exist that fulfills the purpose of the
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instruction.” Simmons, 205 S.W.3d at 77. “[T]he omission of an [informant]
witness instruction is generally harmless unless the corroborating . . . evidence is
‘so unconvincing in fact as to render the State’s overall case for conviction clearly
and significantly less persuasive.’” Herron v. State, 86 S.W.3d 621, 632 (Tex.
Crim. App. 2002) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.
App. 1991)).
      As we held in Appellant’s first issue, there is sufficient corroborating
evidence to support Ford’s testimony. We do not find the corroborating evidence
so unconvincing that it renders the State’s overall case clearly and significantly
less persuasive. See id. The omission of a jury instruction on the corroboration
requirement likely had a very minimal effect because of the corroborating evidence
in the record. We conclude that it did not affect the very basis of the case, deprive
Appellant of a valuable right, or vitally affect a defensive theory. We overrule
Appellant’s second issue.
         Motion for New Trial Based on Evidence of Extraneous Offenses
      In his third issue, Appellant asserts that the trial court erred when it denied
Appellant’s motion for new trial based on the admission of two extraneous
offenses during the guilt/innocence phase.      The two extraneous offenses that
Appellant complains about involve two prior drug buys between Ford and
Appellant. One was alleged to have occurred on December 7, 2010, and the other
was alleged to have occurred on December 13, 2010. We review a trial court’s
denial of a motion for new trial under an abuse of discretion standard. Keeter v.
State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). When applying an abuse of
discretion standard, we will not overturn a trial court’s decision unless it falls
outside the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540,
542 (Tex. Crim. App. 2000).


                                         9
      We conclude that the trial court did not abuse its discretion by overruling the
motion for new trial based upon the admission of extraneous offense evidence.
Appellant filed a pretrial motion alleging an entrapment defense. See TEX. PENAL
CODE ANN. § 8.06 (West 2011). Additionally, his counsel asked the following
question to Sergeant Dees during cross-examination: “Is it possible in your eyes to
sort of encourage someone to, quote, unquote, ‘be a seller’ when that person isn’t
normally a seller, trap them, for example, into selling to them?” (emphasis added).
In England v. State, 887 S.W.2d 902, 913–14 (Tex. Crim. App. 1994), the Texas
Court of Criminal Appeals held that the entrapment defense has both subjective
and objective elements.      The subjective element requires evidence that “the
accused himself was actually induced to commit the charged offense by the
persuasiveness of the police conduct.” Id. at 913 n.10. Evidence that a person has
previously committed a crime is some evidence that a subsequent commission of
the crime was not induced by police and is therefore admissible. Id. at 914. The
trial court did not abuse its discretion in denying the motion for new trial in light of
the admissibility of the extraneous offense evidence.
      Moreover, a great deal of the extraneous offense evidence was admitted into
evidence without objection. Although Appellant objected to evidence about the
prior drug buys during Ford’s direct examination, he did not object during
Sergeant Dees’s earlier testimony about the two prior drug buys.            After Ford
testified and during Sergeant Ford’s cross-examination, Appellant’s counsel played
a portion of the video of the December 13 drug buy in an effort to discredit the
video depiction of the charged drug buy. Even if there was error in admitting
evidence of the extraneous offenses over Appellant’s objections, it was harmless
because it was cumulative of the same evidence to which Appellant did not object.
See TEX. R. APP. P. 44.2(b). We overrule Appellant’s third issue.


                                          10
                          Admissibility of Text Messages
      In his fourth issue, Appellant contends that the trial court erred when it
admitted text messages over his authentication and hearsay objections. A trial
court’s ruling on the admissibility of evidence is reviewed under an abuse of
discretion standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
If the ruling is within the zone of reasonable disagreement, an appellate court will
not disturb it. Id. There is no abuse of discretion if the trial court “reasonably
believes that a reasonable juror could find that the evidence has been authenticated
or identified.” Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).
      Whether to admit evidence at trial is a preliminary question to be decided by
the court. TEX. R. EVID. 104(a); Tienda, 358 S.W.3d at 637. Only relevant
evidence is admissible. TEX. R. EVID. 402. Relevant evidence is “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” TEX. R. EVID. 401. Evidence not properly authenticated is
irrelevant, and authentication is a “condition precedent” to admissibility. TEX. R.
EVID. 901(a); Tienda, 358 S.W.3d at 638.
      A proponent of evidence is not required to “rule out all possibilities
inconsistent with authenticity, or to prove beyond any doubt that the evidence is
what it purports to be.” Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—
Austin 2012, no pet.). In performing its gate-keeping function under Rule 104, the
trial court need not be persuaded that the proffered evidence is authentic. Tienda,
358 S.W.3d at 638. Instead, the question of whether an item of evidence is what
the proponent claims it to be is a question for the factfinder. Id. The preliminary
question for the trial court is to decide whether the proponent of the evidence has
supplied sufficient facts to support a reasonable jury determination that the
evidence is authentic. Id.; see also Manuel v. State, 357 S.W.3d 66, 74 (Tex.
                                        11
App.—Tyler 2011, pet. ref’d) (stating “proponent must only produce sufficient
evidence that a reasonable fact finder could properly find genuineness”).
      Authentication may be accomplished by several methods, including by
direct testimony from a witness with personal knowledge, by comparison with
other authenticated evidence, or by circumstantial evidence. TEX. R. EVID. 901.
Rule 901 “does not erect a particularly high hurdle, and that hurdle may be cleared
by circumstantial evidence.” Campbell, 382 S.W.3d at 549. Printouts and pictures
of emails, internet chat room conversations, and text messages have all been
admitted into evidence when found to be sufficiently linked to the purported author
so as to justify the submission to the jury for its ultimate determination of
authenticity. Tienda, 358 S.W.3d at 639.
      Ford testified that she sent and received text messages from Appellant to set
up the drug buy on December 29, 2010. Ford testified that, while she was waiting
at Bargain Town for Appellant, she sent text messages to him and asked where he
was and when he was going to be there. Ford said that Appellant then texted her
and said he was at the apartments across the street. She then walked over to where
he was parked.     The events surrounding the message sent to Ford indicate
circumstantially that Appellant was the author of the text message. See Tienda,
358 S.W.3d at 641 (“Sometimes the purported sender has responded to an
exchange of electronic communications in such a way as to indicate
circumstantially that he was in fact the author of the particular communication, the
authentication of which is in issue.”). Although the picture of the text message
alone may have been insufficient for authentication purposes, we conclude the
evidence was admitted in such a way that, in combination with other evidence, a
reasonable juror could have believed the text message was sent by Appellant.
      Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered into evidence to prove the truth of the matter
                                         12
asserted. TEX. R. EVID. 801(d). A statement is not hearsay if the statement is
offered against a party and is the party’s own statement in either an individual or
representative capacity. TEX. R. EVID. 801(e)(2)(A). In this case, the text message
offered against Appellant contained his own statement in his individual capacity.
Consequently, the text message was not hearsay. Rather, because it constituted
Appellant’s own statement, it was properly admitted into evidence.        See id.;
Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App. 1999); Lewis v. State, 815 S.W.2d
560, 568 (Tex. Crim. App. 1991); Lozano v. State, No. 2-06-379-CR, 2007
WL 4216349, at *8 (Tex. App.—Fort Worth Nov. 29, 2007, no pet.) (mem. op.,
not designated for publication) (concluding text messages contained defendant’s
statements and were properly admitted as party admission). Accordingly, we
conclude the trial court did not abuse its discretion when it admitted the text
messages into evidence. We overrule Appellant’s fourth issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


March 20, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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