                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00214-CR


REGINALD J. QUALLS                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1403427D

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                                    OPINION

                                     ---------

      A jury convicted Appellant Reginald J. Qualls of forgery by possession with

intent to pass a forged writing, a third-degree felony, Tex. Penal Code Ann.

§ 32.21(a), (b), (e)(1) (West Supp. 2017), 1 and upon accepting Appellant’s plea


      1
       Subsection (e-1), which, upon proof during trial that the actor committed
forgery to obtain or attempt to obtain a property or service, classifies the offense
level according to the value of that property or service, Tex. Penal Code Ann.
§ 32.21(e-1) (West Supp. 2017), applies only to offenses committed on or after
of true to the habitual offender allegation, the visiting judge assigned to sit for the

elected judge (the trial court) sentenced him to thirty-three years’ confinement.

See id. § 12.42(d) (West Supp. 2017). In eight issues, Appellant contends that

the accomplices’ testimony was not sufficiently corroborated, the evidence was

insufficient to support his conviction, and the trial court abused its discretion by

admitting or refusing to strike certain pieces of evidence. Because we hold that

the accomplices’ testimony was sufficiently corroborated, the evidence was

sufficient to support Appellant’s conviction, and the trial court did not reversibly

err by making any of the challenged evidentiary rulings, we affirm the trial court’s

judgment.

             I.     FACTUAL AND PROCEDURAL BACKGROUND

A.    Deitra Coleman, Appellant’s Wife, Tried to Buy Two Xboxes at
      GameStop with Fifteen $50 Bills and Some Small Change.

      On December 27, 2014, a black man and woman, identified at trial as

Appellant and his wife, Deitra Coleman, walked into GameStop on South Hulen

Street in Fort Worth. Coleman asked for two Xbox consoles. Appellant left the

store, came back, and left again while Coleman remained in the store. Coleman

gave the cashier, Derek Cook, fifteen $50 bills as payment for the Xboxes. After

Cook counted the money, he asked for more because the total due was around



its effective date, September 1, 2017. Id. historical and statutory note [Act of
May 24, 2017, 85th Leg., R.S., ch. 977, §§ 37, 38, 2017 Tex. Sess. Law Serv.
3973, 3988 (West)].



                                          2
$757 and change.       Coleman placed seven dollars and some coins on the

counter.

B.    Coleman Abandoned the Fifteen $50 Bills but Retrieved the Seven
      Dollars and Coins Before Leaving GameStop.

      Cook held one of the $50 bills up to the light to look for its security strip

and watermark, neither of which he saw. Before Cook could tell Coleman that he

required another form of payment, she left, abandoning the fifteen $50 bills but

taking the seven dollars and coins from the counter.

C.    Evidence at Trial Showed That Appellant Participated in the
      Transaction and That He Gave Coleman the Bills Before the
      Transaction.

      At trial, cashier Cook, who no longer worked at GameStop, identified

Appellant as the man who was in GameStop with Coleman on December 27,

2014, but on cross-examination, Cook stated that he was “[n]ot one hundred

percent” certain that the man in a still photograph taken from the store’s

surveillance video that day was Appellant.          Similarly, Cook had picked

Appellant’s picture out in a pretrial, out-of-court lineup, but with only a “70 to

80 percent” or “75 to 80 percent” certainty.

      Cook testified that he did not recall seeing Appellant give Coleman any

money at the time of the incident, but when reviewing the store’s surveillance

video later, “[i]t looked [to him] as if the male handed the female a small fold of

cash” before the transaction.




                                         3
      At trial, Coleman admitted that Appellant gave her something at GameStop

but stated that it was not money, and she did not know or remember what it was.

During the investigation, however, Coleman told Fort Worth Police Department

(FWPD) Detective Ron Turner, who had been promoted to Sergeant by trial, that

Appellant handed her the money to buy the Xboxes at GameStop.

      Similarly, Investigator Michael Weber of the Tarrant County District

Attorney’s Office (TCDA) testified that Coleman told him that Appellant gave her

$600. Further, accomplice witness Edward Nunley testified that Appellant told

him that his purchases with the counterfeit money he bought from Nunley

included games from GameStop.              Finally, the jury saw the GameStop

surveillance video.

D.    The Bills Collected by the FWPD at GameStop Were Counterfeit, and
      Evidence at Trial Shows That Appellant Knew It.

      1.      GameStop Cashier Derek Cook Distinguished the $50 Bills from
              Genuine Currency.

      Cook testified:

           • He examined the top $50 bill of the stack he received from Coleman
             for “maybe five to ten seconds” and determined that it had neither a
             security strip nor a watermark and that it “didn’t feel normal” and “felt
             different” than money;

           • He checked some of the other bills with the light;

           • Two separate serial numbers were used: ten bills had one serial
             number, and the remaining five bills had the other serial number;

           • Many of the bills had the same stamp on the back;

           • The bills looked faded, “as the ink [wa]s kind of washed away”;



                                          4
           • His manager double-checked the bills and agreed that they were not
             real; and

           • Neither customer returned for the $50 bills or asked Cook questions
             about why the transaction was not completed.

      2.      Shaun Baughman, Walmart Asset Protection Manager, Testified
              Counterfeit Money Was Received the Same Day at a Walmart
              Store in Fort Worth.

      Shaun Baughman, Asset Protection Manager for Walmart, testified about a

similar offense that occurred earlier on the same day at a Fort Worth Walmart:

           • On December 28, 2014, the store’s cash office notified him that on
             the previous afternoon, approximately $480 in counterfeit $50 and
             $10 bills had been received in the electronics department at Register
             67;

           • Cash office personnel researched until “[t]hey actually found the
             transaction for that exact denomination”;

           • He tracked the transaction on the store’s surveillance video;

           • On the video, Baughman saw a black male enter the store with a
             black female, give her money, stand at the register with her, and
             leave the store with her, carrying the Xbox she had purchased;

           • If the serial numbers on the counterfeit money at Walmart matched
             the serial numbers on the counterfeit money collected at GameStop,
             he would think the counterfeit money possibly came from the same
             people;

           • The bills “shouldn’t have the same serial number”;

           • Baughman was not an expert at recognizing counterfeit money, but
             he was “pretty good”; and

           • He recognized the money to be counterfeit from the feel of the
             paper, the look of the ink, the absence of a security strip, and the
             fact that the lines were not straight on the paper.




                                         5
Baughman also testified that photocopies of the $50 bills used at GameStop

were “picture[s] of counterfeit money. Or it’s fifty dollar bills.” Over objection, he

testified that he could “tell by [the] way the paper [was] crumbling, it[ was] not the

actual paper. The ink appear[ed] to be off.”

      3.      Accomplice Deitra Coleman Admitted That Appellant Gave Her
              the Money She Spent at Walmart, and the Walmart Surveillance
              Video Showed a Couple Dressed Exactly Like the Couple in the
              GameStop Video Running to Their Car After Leaving the Store.

      Even though TCDA Investigator Weber testified that Coleman told him that

neither she nor Appellant knew the GameStop money was counterfeit, she

admitted at trial that on December 27, 2014, she and Appellant had gone to

Walmart before they went to GameStop and that he had given her money at

some point before they reached Walmart that she used there to purchase

something, but she could not remember what. The State played for the jury

those portions of the Walmart surveillance video showing a black man and

woman dressed exactly like the couple in the GameStop surveillance video

arriving in the Walmart parking lot, entering the store, completing the transaction,

exiting the store, running to their car in the parking lot, and driving away.

      4.      Special Agent Jason Boswell Testified That the GameStop Bills
              and Walmart Bills Were Counterfeit.

      United States Secret Service Special Agent Jason Boswell testified:

           • He had examined the bills from the GameStop and Walmart
             transactions at the FWPD’s request;

           • The bills were all counterfeit;



                                          6
           • JK16440416A, the serial number on the $50 bill he held at trial,
             taken from State’s Exhibit 20 containing the Walmart bills, matched
             the serial number on the GameStop bills in State’s Exhibit 18; 2

           • Henry Paulson was the Secretary of the Treasury when one of the
             counterfeit $50 bills collected from GameStop purported to be
             issued;

           • Timothy Geithner was the acting Secretary of the Treasury when
             another of the GameStop counterfeit $50 bills purported to be
             issued;

           • The Department of the Treasury authorizes the making of United
             States currency;

           • The counterfeit money was not authorized to be printed;

           • The counterfeit money purported to be genuine currency; and

           • The Department of the Treasury did not authorize the counterfeit
             money to purport to be United States currency.

      5.      FWPD Sergeant Ron Turner Testified That the Bills Were
              Counterfeit.

      Sergeant Turner testified that Coleman told him that the money Appellant

gave her to spend at GameStop and Walmart came from accomplice Nunley.

Sergeant Turner further testified that the bills were counterfeit and that Agent

Boswell had confirmed his suspicion.

      When Sergeant Turner talked to Appellant by phone, Appellant denied

passing money to anybody.



      2
        We note that the serial number matches the serial numbers on five of the
fifteen photocopied GameStop $50 bills—those found in the middle column of
State’s Exhibit 1.



                                        7
      6.      Accomplice Witness Edward Nunley Testified That He Sold
              Appellant the Counterfeit $50 Bills.

      Accomplice witness Nunley testified:

           • Around November 2014, he received about $41,000 in counterfeit
             money from a one-time drug deal in which he acted as the
             middleman;

           • Most of the counterfeit money was in $50 bills;

           • Appellant asked Nunley about the counterfeit money, and Nunley
             told Appellant that the money was in fact counterfeit;

           • Appellant bought the counterfeit $50 bills from Nunley with cash;

           • Appellant told Nunley that he bought “a TV and a PlayStation and
             something” with the counterfeit money;

           • Appellant told Nunley that he bought games with the counterfeit
             money at GameStop and that he also spent the money at Walmart,
             on ordering in food, and for a single night’s stay at a motel;

           • Appellant called, texted, or went to see Nunley about the counterfeit
             money six or seven times; and

           • Appellant sent Nunley a text stating, “Bro I need them bills,” referring
             to the counterfeit money.

The trial court also admitted the text message, apparently sent more than three

weeks after the GameStop forgery, into evidence.

                                II.    DISCUSSION

A.    The Accomplice Testimony Was Sufficiently Corroborated.

      In part of his first issue, Appellant challenges the sufficiency of the

evidence     corroborating   Coleman’s    and    Nunley’s   accomplice     testimony

implicating Appellant in the forgery.     The accomplice-witness rule, set out in

Article 38.14 of the code of criminal procedure, provides that “[a] conviction


                                          8
cannot be had upon the testimony of an accomplice unless corroborated by other

evidence tending to connect the defendant with the offense committed[,] and the

corroboration is not sufficient if it merely shows the commission of the offense.”

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).

      1.    We Review the Nonaccomplice Evidence for Evidence That
            Tends to Connect Appellant to the Forgery.

      The accomplice-witness rule is a statutorily imposed sufficiency review and

is not derived from federal or state constitutional principles that define the legal

and factual sufficiency standards. Druery v. State, 225 S.W.3d 491, 498 (Tex.

Crim. App.), cert. denied, 552 U.S. 1028 (2007). When evaluating the sufficiency

of corroboration evidence under the accomplice-witness rule, we “eliminate the

accomplice testimony from consideration and then examine the remaining

portions of the record to see if there is any evidence that tends to connect the

accused with the commission of the crime.” Solomon v. State, 49 S.W.3d 356,

361 (Tex. Crim. App. 2001).       The sufficiency of nonaccomplice evidence is

judged according to the facts and circumstances of each case. Smith v. State,

332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We do not independently construe

the nonaccomplice evidence but instead defer to the factfinder’s resolution of it.

Id.

      To meet the rule’s requirements, the corroborating evidence need not

prove the defendant’s guilt beyond a reasonable doubt by itself. Malone v. State,

253 S.W.3d 253, 257 (Tex. Crim. App. 2008).           Nor is it necessary for the



                                         9
corroborating evidence to directly link the accused to the commission of the

offense. State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016); Cathey

v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied, 528 U.S.

1082 (2000). Rather, the evidence, whether direct, circumstantial, or both, must

show that rational jurors could have found that it sufficiently tended to connect

the accused to the offense.        Smith, 332 S.W.3d at 442; Simmons v. State,

282 S.W.3d 504, 508 (Tex. Crim. App. 2009).

     While a defendant’s mere presence at the scene of a crime is insufficient to

corroborate accomplice testimony, Druery, 225 S.W.3d at 498, “proof that the

accused was at or near the scene of the crime at or about the time of its

commission, when coupled with other suspicious circumstances, may tend to

connect the accused to the crime so as to furnish sufficient corroboration to

support a conviction.” Smith, 332 S.W.3d at 443. Additionally, circumstances

that are apparently insignificant may nevertheless constitute sufficient evidence

of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999);

Simmons v. State, 205 S.W.3d 65, 73 (Tex. App.—Fort Worth 2006, no pet.).

Finally, an accomplice’s out-of-court         statement may not be used as

corroboration, Smith, 332 S.W.3d at 439, but it is also not evidence requiring

corroboration under Article 38.14, Bingham v. State, 913 S.W.2d 208, 209 (Tex.

Crim. App. 1995) (op. on reh’g).




                                         10
      2.     The Nonaccomplice Evidence Tended to Connect Appellant to
             the GameStop Forgery.

      Deferring to the jury’s resolution of the evidence, GameStop casher Cook:

           • Identified Appellant in a lineup with 70–80% certainty as the man
             who accompanied Coleman when she attempted to buy two Xboxes
             with fifteen counterfeit $50 bills;

           • Identified Appellant in court as the man in the GameStop
             surveillance video with the woman; and

           • Testified that when he watched the surveillance video, he saw the
             man give the woman “a small fold of cash.”

      Agent Boswell, Sergeant Turner, and Walmart Asset Protection Manager

Baughman corroborated Cook’s testimony that all the bills were counterfeit. The

jury saw the GameStop video, still photos taken of portions of the video, the

Walmart video, and still photos taken from it; furthermore, the jury had the

opportunity to observe Appellant at trial. Viewing the nonaccomplice evidence in

its totality, we hold that a rational jury could have found that it sufficiently tended

to connect Appellant to the forgery offense with which he was charged. See Tex.

Code Crim. Proc. Ann. art. 38.14; Smith, 332 S.W.3d at 443; Davis v. State,

68 S.W.3d 273, 281–82 (Tex. App.—Dallas 2002, pet. ref’d); see also Brown v.

State, 270 S.W.3d 564, 567–69 (Tex. Crim. App. 2008), cert. denied, 556 U.S.

1211 (2009).     We therefore hold that the testimony of accomplices Deitra

Coleman and Edward Nunley was sufficiently corroborated and properly

considered by the jury. We overrule this portion of Appellant’s first issue.




                                          11
B.    The Evidence Is Sufficient to Support Appellant’s Conviction.

      In his seventh and eighth issues, Appellant challenges the sufficiency of

the evidence to support his conviction. Appellant does not challenge the finding

that the $50 bills were forged writings. Instead, he specifically contends that

(1) insufficient evidence identified him as the person who passed the bills (Issue

Seven) and (2) insufficient evidence showed that he had the requisite mental

state to commit forgery (Issue Eight).

      1.     We Review All the Evidence in the Light Most Favorable to the
             Verdict.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583,

599 (Tex. Crim. App. 2016). This standard gives full play to the responsibility of

the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).              Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility



                                         12
of the evidence and substitute our judgment for that of the factfinder.       See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).     We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49.

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

guilt. Jenkins, 493 S.W.3d at 599.

      In determining the sufficiency of the evidence to show an appellant’s intent,

and faced with a record that supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

      2.    The Jury Could Have Found Appellant Guilty of Forgery as a
            Principal or a Party.

      A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or both. Tex. Penal Code Ann. § 7.01(a) (West 2011). A

person is criminally responsible for an offense committed by another’s actions if,



                                        13
acting with intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the

offense. Id. § 7.02(a)(2). The law of parties need not be pled in the indictment.

Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002); Frank v. State,

183 S.W.3d 63, 73 (Tex. App.—Fort Worth 2005, pet. ref’d).          In determining

whether a defendant is a party, the factfinder may rely on:

          • Events before, during, and after the commission of the crime;

          • The defendant’s acts showing an understanding and common
            design; and

          • Circumstantial evidence.

Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied,

476 U.S. 1101 (1986); Frank, 183 S.W.3d at 73.

      The indictment charged Appellant as a principal. It provided that on or

about December 27, 2014, Appellant,

      intentionally, with intent to defraud or harm another, possess[ed] with
      intent to pass[] forged writings knowing such writings to be forged,
      and such writings had been so made that they purported to be the
      act of Timothy Gaithner and Henry M. Paulson, Jr. who did not
      authorize the act and said writings were or purported to be part of an
      issue of money . . . . 3
See Tex. Penal Code Ann. § 32.21(a)–(b).

      The jury charge allowed the jury to convict Appellant as a principal or as a

party. It provided,

      3
        Our quotation of the indictment does not include its convention of using all
capital letters in the allegation.



                                        14
             A person commits the offense of forgery if he forges a writing
      with intent to defraud or harm another.
            “Forge” means to possess any writing that has been altered,
      made, completed, executed, or authenticated so that it purports to
      be the act of another who did not authorize that act with the intent to
      pass the writing and the writing is or purports to be part of an issue
      of money.
             “Writing” includes printing or any other method of recording
      information; money, coins, tokens, stamps, seals, credit cards,
      badges, and trademarks; and symbols of value, right, privilege, or
      identification.
          “Possession”      means     actual   care,   custody,   control,   or
      management.
The jury charge also included an explanation of the law of parties and

accomplices as a matter of law. The application paragraph of the jury charge

provided,

             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 27th day of December 2014, in Tarrant County,
      Texas, the defendant, Reginald J. Qualls, then and there
      intentionally, with intent to defraud or harm another, possess[ed] with
      intent to pass, forged writings, knowing such writings to be forged,
      and such writings had been so made that they purported to be the
      act of Timothy Gaithner and Henry M. Paulson, Jr., who did not
      authorize the act, and said writings were or purported to be part of
      an issue of money of the tenor following: fifteen $50 bills; or that the
      defendant, Reginald J. Qualls, acting with the intent to promote or
      assist in the commission of the offense of forgery, encouraged,
      aided, or attempted to aid Deitra Coleman to commit the offense of
      forgery, then you will find the defendant guilty of the offense of
      forgery.
      3.    The Evidence Sufficiently Showed That Appellant Forged the
            $50 Bills Coleman Left at GameStop.

      In his seventh issue, Appellant contends that the evidence was insufficient

to prove that he was the perpetrator of the GameStop forgery because cashier



                                        15
Cook could not identify him absolutely, the GameStop surveillance video was

fuzzy and did not unequivocally identify Appellant, and Coleman’s testimony was

uncorroborated and should be struck.         We have already rejected Appellant’s

complaint that Coleman’s testimony was not sufficiently corroborated. Further,

the jury as factfinder viewed not only the GameStop surveillance video but also

the Walmart surveillance video and observed Appellant at trial.

         Additionally, FWPD Sergeant Turner testified that Coleman told him that

Appellant gave her the money to buy the Xboxes at GameStop, and TCDA

Investigator Weber testified that she told him that Appellant gave her $600.

Finally, Nunley testified that Appellant told him that he bought games from

GameStop with the counterfeit money that he purchased from Nunley. Based on

our review of the evidence in a light most favorable to the verdict, we hold that a

rational jury could have found that Appellant committed the forgery, whether as a

principal or party, beyond a reasonable doubt. We overrule Appellant’s seventh

issue.

         4.      The Evidence Sufficiently Showed that Appellant Had the
                 Requisite Intent to Commit Forgery.

         In his eighth issue, Appellant contends that “there was insufficient

evidence of the elements intentionally or knowingly.” He argues specifically that

there was insufficient evidence that:

              • He had possessed the counterfeit bills and intended to pass them;

              • He had intended to defraud or harm another; and



                                           16
         • He knew the bills were counterfeit.

      Cashier Cook testified that his review of the surveillance video showed that

the black male handed the black female who tried to buy the Xboxes “a small fold

of cash” before she gave Cook the $50 bills. While Coleman denied at trial that

what Appellant handed her was money, FWPD Sergeant Turner testified that

Coleman had said that Appellant gave her the bills to spend at GameStop, TCDA

Investigator Weber testified that Coleman had told him that Appellant gave her

$600, and Sergeant Turner testified that she told him that the money had

originally come from Nunley.

      Similarly, while TCDA Investigator Weber testified that Coleman denied

any knowledge of the counterfeit nature of the bills Appellant received from

Nunley, Nunley testified that Appellant asked him about the counterfeit bills,

texted him about obtaining them, and finally bought them from Nunley for cash

(at a discount) even though Nunley had told him that the bills were counterfeit.

Nunley also testified that Appellant told him that one of the ways he had spent

the counterfeit bills was in buying games at GameStop. Finally, the jury saw the

GameStop surveillance video as well as the Walmart surveillance video.

      We defer to the jury’s resolution of conflicts in the evidence. See Murray,

457 S.W.3d at 448–49.          A rational jury could have concluded beyond a

reasonable doubt that Appellant had the requisite intent to commit forgery as

charged, whether as a principal, see, e.g., Sherrod v. State, No. 03-14-00584-

CR, 2016 WL 6156227, at *5 (Tex. App.—Austin Oct. 19, 2016, no pet.) (mem.


                                        17
op., not designated for publication), or as a party, see, e.g., Gaines v. State, No.

03-08-00251-CR, 2009 WL 1657566, at *2 (Tex. App.—Austin June 9, 2009, no

pet.) (mem. op., not designated for publication). We overrule Appellant’s eighth

issue.

C.       The Trial Court Did Reversibly Err By Making Any of the Challenged
         Evidentiary Rulings.

         In his remaining issues, Appellant challenges various evidentiary rulings of

the trial court.

         We review the trial court’s decision on the admissibility of evidence for an

abuse of discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016). The trial court abuses its discretion when its decision lies outside the

zone of reasonable disagreement. Id. If the trial court’s decision to admit or

exclude evidence is correct under any applicable legal theory, we will uphold that

decision even if the trial court gave a wrong or incomplete reason for its ruling.

De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

         1.    Appellant Forfeited His Complaint That the Trial Court Erred by
               Admitting Accomplice Testimony.

         In the remainder of his first issue, Appellant complains that the trial court

erred by admitting “co-defendant” testimony—the testimony of accomplice

witnesses Deitra Coleman and Edward Nunley—without sufficient corroboration.

By failing to object on this ground in the trial court, Appellant forfeited this

complaint. See Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670,




                                          18
674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Everitt v. State,

407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013).

         Regardless, Article 38.14 of the code of criminal procedure is a rule for

sufficiency review, not an evidentiary rule.       Tex. Code Crim. Proc. Ann. art.

38.14; Kennedy v. State, 193 S.W.3d 645, 662 (Tex. App.––Fort Worth 2006,

pet. ref’d) (op. on reh’g en banc). Article 38.14 does not govern the admissibility

of evidence; rather, it governs determinations of sufficiency of the evidence when

an accomplice testifies. Kennedy, 193 S.W.3d at 662. We have already held

that the nonaccomplice evidence sufficiently corroborated Nunley’s and

Coleman’s testimony. We therefore overrule the remainder of Appellant’s first

issue.

         2.    The Trial Court Did Not Abuse its Discretion by Refusing to
               Strike Agent Boswell’s Testimony.

         In his fifth issue, Appellant contends that the trial court abused its

discretion by refusing to strike Special Agent Jason Boswell’s testimony for

allegedly violating “the Rule.”

         At trial, the State invoked the Rule before the first witness testified. Agent

Boswell was not sworn in until the next day, immediately before he testified, and

the trial court explicitly placed him under the Rule before he began testifying.

After the first round of Boswell’s direct examination and well into his cross-

examination by defense counsel, the following exchange occurred:

               Q.     . . . . You’ve talked with Detective Turner about this
                      case; is that right?


                                           19
             A.      I have.

             Q.      Okay. When was the last time you talked to Detective
                     Turner about this case?

             A.      About the significance of the case or what’s going on in
                     the case—

                     ....

             Q.      . . . . Any of the above.

             A.      Before I walked in the courtroom.

             Q.      Okay. Are you aware that the Rule was invoked at the
                     time that—that you were talking with Detective Turner?

             A.      No. What do you mean rule? Which rule?

      After Agent Boswell answered, defense counsel moved to strike all of his

testimony on the basis that he had violated the Rule. The trial court stated, “I

didn’t swear this witness in and place him under the Rule until right before he

testified. If y’all want the people all sworn in, that are testifying, together, I would

. . . have done that. Nobody asked me to do it.” The record confirms the trial

court’s statement.

      The trial court swore Sergeant Turner in and expressly placed him under

the Rule when he testified after Agent Boswell.

             a.      Agent Boswell Violated the Rule.

      Texas Rule of Evidence 614 provides that at a party’s request, the trial

court must order witnesses excluded from trial so they cannot hear the other

testimony. Tex. R. Evid. 614.        The purpose of “the Rule” is “to prevent the

testimony of one witness from influencing the testimony of another, . . . by one


                                           20
witness either overhearing the testimony of another witness or talking to that

witness regarding his testimony.” Webb v. State, 766 S.W.2d 236, 239 (Tex.

Crim. App. 1989) (citations and internal quotation marks omitted); see Russell v.

State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005).

       The code of criminal procedure addresses the Rule in Chapter 36.

Russell, 155 S.W.3d at 179–80. Article 36.03(e) provides:

             At the commencement of a trial, the court shall admonish each
       witness who is to testify as to those persons whom the court
       determines the witness may talk to about the case before the trial
       ends and those persons whom the witness may not talk to about the
       case. The court may punish as contempt a witness who violates the
       admonishment provided by the court.
Tex. Crim. Proc. Code Ann. art. 36.03(e) (West 2007). Article 36.05 states:

             Witnesses under rule shall be attended by an officer, and all
       their reasonable wants provided for, unless the court, in its
       discretion, directs that they be allowed to go at large; but in no case
       where the witnesses are under rule shall they be allowed to hear any
       testimony in the case.
Id. art. 36.05. Finally, Article 36.06 provides:

              Witnesses, when placed under rule, shall be instructed by the
       court that they are not to converse with each other or with any other
       person about the case, except by permission of the court, and that
       they are not to read any report of or comment upon the testimony in
       the case while under rule. The officer who attends the witnesses
       shall report to the court at once any violation of its instructions, and
       the party violating the same shall be punished for contempt of court.
Id. art. 36.06.

       Upon invocation of the Rule, a witness should not listen to testimony in the

case or talk about the case to others absent permission of the trial court. Id. arts.

36.03(e), 36.05, 36.06. Even a witness not yet sworn or admonished about the


                                          21
Rule violates it by doing so. See, e.g., Davis v. State, 872 S.W.2d 743, 745–

46 (Tex. Crim. App. 1994); Loris v. State, Nos. 02-11-00464-CR, 02-11-00465-

CR, 02-11-00466-CR, 2013 WL 3968079, at *4 (Tex. App.—Fort Worth Aug. 1,

2013, pet. ref’d) (mem. op.; not designated for publication) (indicating that if a

witness viewed a report after the Rule was invoked but before he was sworn, a

violation occurred); Townes v. State, No. 04-10-00796-CR, 2012 WL 566000, at

*3 (Tex. App.—San Antonio Feb. 15, 2012, pet. ref’d) (mem. op., not designated

for publication) (concluding the Rule was violated even though only one of the

two challenged witnesses had been sworn and admonished regarding the Rule

when they talked to each other) (relying on Drilex Sys., Inc. v. Flores, 1 S.W.3d

112, 120 (Tex. 1999) (op. on reh’g) (“[A] court may, in its discretion, exclude the

testimony of a prospective witness who technically violates the Rule even though

the witness was never actually placed under the Rule.”)).

      The State invoked the Rule before testimony began. The conversation

between Agent Boswell and Sergeant Turner took place the second day of

testimony but before either testified. Even though the record does not indicate

that either Agent Boswell or Sergeant Turner was present when the Rule was

invoked, we nevertheless hold that Agent Boswell violated the Rule.           See

Townes, 2012 WL 566000, at *3.

            b.     The Trial Court Did Not Abuse Its Discretion by Denying
                   Appellant’s Motion to Strike Agent Boswell’s Testimony.

      A violation of the Rule, however, is not necessarily reversible error. Archer



                                        22
v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986).           A trial court has

discretion to admit the testimony from a witness who violated the Rule. Bell v.

State, 938 S.W.2d 35, 50 (Tex. Crim. App.), cert. denied, 522 U.S. 827 (1997);

Archer, 703 S.W.2d at 666; Townes, 2012 WL 566000, at *2.            An abuse of

discretion occurs when the violative testimony prejudices or harms the

defendant. Archer, 703 S.W.2d at 666; see Townes, 2012 WL 566000, at *3.

      Given the situation before us—two State’s witnesses who also appeared

on the State’s witness list conferring after the Rule was invoked but before giving

their testimony, we assess prejudice to Appellant by asking two questions:

      (1)   Did the witness confer with another witness?

      (2)   Did the witness’s testimony corroborate testimony of the witness he
            conferred with or contradict defensive testimony?

See Archer, 703 S.W.2d at 666. When “two or more State[‘s] witnesses violate

the rule by conferring on an issue bearing on the guilt or innocence of the

accused and about which they later testify, injury or prejudice flows from

testimony that either corroborates another witness for the prosecution or

contradicts defensive testimony on that issue.” Id. at 667.

      After the trial court explained that it had not placed Agent Boswell under

the Rule until immediately before his testimony, the prosecutor offered an

explanation of the two officers’ conversation: “In addition, Your Honor, we had to

obtain the money from Detective Turner. That was the conversation that we had

outside. That he [Agent Boswell] needed to observe the money.” Appellant did



                                        23
not object. Agent Boswell and the prosecutor both admitted that a conversation

with Sergeant Turner about the case had taken place; the first prong of the test

for prejudice is therefore satisfied. See id.

      The second prong, however, is not satisfied. When defense counsel’s

cross-examination of Agent Boswell continued, the following exchange occurred:


             Q.     When you were talking to Detective Turner about this
                    case, how much time do you think that you’ve spent
                    over the last two days talking with him about this case?

             A.     Twenty seconds.

             Q.     That’s a long time.

                    ....

             Q.     . . . . What did you use to prepare your testimony
                    today?

             A.     Just my knowledge on the case.

             Q.     Did you have any notes that you referred to?

             A.     No, sir.

                    ....

             Q.     . . . . Any of the voluntary statements?

             A.     No. No, sir, I haven’t reviewed any of those.

             Q.     Okay. Did you review any of the police reports?

             A.     No, sir. It’s my understanding I was being here to testify
                    on the difference between genuine currency and what
                    was involved in this case.

             Q.     . . . . How much time did you spend with the
                    prosecution getting ready for this case?

             A.     Ten minutes, 15 minutes.


                                          24
      Defense counsel did not ask Agent Boswell what he and Sergeant Turner

had discussed for those twenty seconds, object that Sergeant Turner had

violated the Rule, or question Sergeant Turner about his interaction with Agent

Boswell.

      We cannot glean from the record that in their brief conversation, Agent

Boswell and Sergeant Turner spoke on an “issue bearing on the guilt or

innocence of [Appellant] and about which they [would] later testify.” See id. We

therefore cannot conclude that Appellant was harmed by the interaction between

the two men after the Rule was invoked but before they testified. Consequently,

we hold that the trial court did not abuse its discretion by refusing to strike Agent

Boswell’s testimony. We overrule Appellant’s fifth issue.

      3.     The Trial Court Did Not Abuse Its Discretion by Admitting the
             Property Envelopes of Counterfeit Bills Collected from
             GameStop and Walmart.

      In his sixth issue, Appellant contends that the trial court abused its

discretion by admitting the property envelopes containing the actual counterfeit

bills collected from GameStop (State’s Exhibit 18) and Walmart (State’s Exhibit

20) “without a proper chain of custody.”

             a.    The Record Traces the Evidence from Its Respective
                   Store to Trial.

      FWPD Officer Brian Marleau testified that he was dispatched to GameStop

after the forgery, and the manager gave him the $50 bills. Officer Marleau put

the bills in a sealed property envelope, on the back of which he wrote his initials



                                           25
and badge number. Late in the trial, the State moved to admit the property

envelopes containing counterfeit bills used at GameStop (State’s Exhibit 18) and

at Walmart (State’s Exhibit 20) while FWPD Sergeant Turner was testifying.

       Regarding State’s Exhibit 18, Sergeant Turner testified:

             • He was a detective in the economic financial crimes unit at the time
               of the offense and was assigned the GameStop investigation in
               January 2015;

             • Officer Marleau collected the money from the GameStop, and at
               some point, another officer, Detective Allen, checked the money out
               of the property room and hand-delivered it to Turner;

             • When Allen gave the envelope to Turner, it had not been opened;

             • Turner opened the envelope containing the money more than once
               but resealed it each time by stapling it; and

             • On the second day of trial, he turned the sealed envelope over to
               TCDA Investigator Mike Weber.

       Regarding State’s Exhibit 20, Sergeant Turner testified:

             • It contained the evidence from Walmart;

             • Detective Darak handed him the exhibit;

             • It contained six counterfeit $50 bills and seventeen counterfeit
               $10 bills; and

             • It was checked out of the property room for his investigation of the
               counterfeit case.

       Appellant’s attorney took Sergeant Turner on voir dire. On voir dire, he

testified:

             • He kept the sealed evidence in his locked desk;

             • When he testified, the key to his desk was at his home;

             • When he was on-duty, he had possession of his desk key; and

                                          26
         • He did not have personal control of the key at all times.

The State’s Exhibit 20 property envelope confirms Sergeant Turner’s other

testimony on voir dire that FWPD Officer Simon took possession of the bills at

Walmart and placed them in the property room.

      Finally, the record reflects that the prosecutor showed both sealed

envelopes and their contents to Agent Boswell when he testified.

             b.    Only Appellant’s Complaint Raised at Trial is Preserved
                   for Appeal.

      Appellant’s complaint on appeal is much broader than his chain-of-custody

objection at trial. At trial, Appellant’s attorney objected to the admissibility of

State’s Exhibits 18 and 20 only on the ground that Sergeant Turner did “not keep

control over his key at all times and the key . . . is used to lock and unlock a desk

that he received from somebody else and passes along to someone else.” The

trial court overruled the objection and admitted the two exhibits. This is the only

preserved complaint included in Appellant’s sixth issue; Appellant forfeited all

other complaints raised in his sixth issue by not raising them in the trial court.

See Tex. R. App. P. 33.1(a)(1); Douds, 472 S.W.3d at 674; Everitt, 407 S.W.3d

at 262–63. We address only his preserved complaint on the merits.

             c.    The Evidence Sufficiently Supports a Finding That the
                   Challenged Exhibits Contain the Property Envelopes of
                   Forged Bills from GameStop (State’s Exhibits 18) and
                   Walmart (State’s Exhibit 20).

      As the Texas Court of Criminal Appeals has explained,




                                         27
      [T]he evidentiary rules do not specifically address proper chain of
      custody, [but] they do state that identification for admissibility
      purposes is satisfied if the evidence is sufficient to support a finding
      that the matter in question is what its proponent claims. . . . Absent
      evidence of tampering or other fraud, . . . problems in the chain of
      custody do not affect the admissibility of the evidence. Instead, such
      problems affect the weight that the fact-finder should give the
      evidence, which may be brought out and argued by the parties.
Druery, 225 S.W.3d at 503–04 (footnotes omitted). Additionally, proof validating

the initial and terminal links of the chain of custody supports the admission of

evidence absent evidence of tampering, modifying, or commingling. Stoker v.

State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S.

951 (1990); Hall v. State, 13 S.W.3d 115, 120 (Tex. App.—Fort Worth 2000), pet.

dism’d, improvidently granted, 46 S.W.3d 264 (Tex. Crim. App. 2001). Without

proof of tampering, altering, or commingling the challenged evidence, gaps in the

chain of custody go to the weight of the evidence, not its admissibility. Lagrone

v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.), cert. denied, 522 U.S.

917 (1997). Finally, proof of only an opportunity to tamper, alter, or commingle

the challenged evidence is not sufficient to mandate its exclusion. Darrow v.

State, 504 S.W.2d 416, 417 (Tex. Crim. App. 1974); Patel v. State, No. 2-08-032-

CR, 2009 WL 1425219, at *2 (Tex. App.—Fort Worth May 21, 2009, no pet.)

(mem. op., not designated for publication).

      The evidence in the record sufficiently supports a finding that State’s

Exhibit 18 contains the counterfeit $50 bills from GameStop and that State’s

Exhibit 20 contains the counterfeit bills collected from Walmart. The evidence



                                        28
also sufficiently traces the exhibits from their respective stores to the hands of

the investigating officer, Sergeant Turner, and finally to the prosecutor at trial.

Appellant’s complaints about Sergeant Turner not always having personal control

of the key to his desk and having used desks during the case to which others

might have had keys raise only the spectre of tampering and do not justify

exclusion of the exhibits.        See Darrow, 504 S.W.2d at 417; Patel,

2009 WL 1425219, at *2. The trial court did not abuse its discretion by admitting

the two exhibits. We overrule Appellant’s sixth issue.

      4.      Any Error in Admitting Photographs of the GameStop Property
              Envelope and the GameStop Bills Was Harmless.

      In Appellant’s second and third issues, he complains on predicate and

best-evidence grounds about the trial court’s admission of State’s Exhibits 1, 2,

and 3—photographs of the fronts and backs of the fifteen $50 bills Coleman left

at GameStop and the property envelope containing them, respectively. At trial,

the State showed Officer Marleau State’s Exhibits 1, 2, and 3, and he testified:

           • The pictures showed the fifteen $50 bills he received on December
             27, 2014, at GameStop;

           • He placed the bills in a sealed property envelope and wrote his
             badge number and initials on the back of it; and

           • While he could not tell from the photos that the bills in the photos
             were the same bills he picked up, because he had not tagged the
             individual bills, he assumed that the bills in the photographs were
             the actual bills he had collected from GameStop because they were
             pictured with the property envelope he had initialed.




                                        29
       Appellant objected to the admission of the photos on the ground that

Officer Marleau was “unable to authenticate” the photographed $50 bills as the

“actual[] . . . items that were placed in the . . . evidence bag.” Appellant also

objected that Marleau could not lay the proper predicate because he could not

“reasonably tell th[e] Court th[ese] photo[s] accurately represent[] the

circumstances at the time the photo[s] w[ere] taken.” The prosecutor told the trial

court that the actual bills would be forthcoming, and the trial court overruled the

objection.

       Cashier Cook also testified that the photos of the counterfeit bills appeared

to show the bills that he received from Coleman because ten of the

photographed bills had the same serial number, five had the same other serial

number, and the $50 bills Coleman gave him were proportioned in that same

way.

       Finally, Sergeant Turner answered affirmatively when asked if State’s

Exhibits 1, 2, and 3 “purport to be photographs of the package for State’s Exhibit

18 and what is contained within[.]”

       We have already upheld the admission of State’s Exhibit 18—the actual

property envelope and counterfeit $50 bills collected at GameStop. Error in the

admission of the photographs of the items included in State’s Exhibit 18, if any,

was therefore harmless. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex.

Crim. App. 2010), cert. denied, 562 U.S. 1142 (2011); Leday, 983 S.W.2d at

716–18. We overrule Appellant’s second and third issues.


                                        30
      5.       The Admission of Walmart Asset Protection Manager
               Baughman’s Testimony That the Bills Photographed in State’s
               Exhibits 1 and 2 Were Counterfeit Was Harmless.

      In his fourth issue, Appellant contends that the trial court abused its

discretion by allowing Walmart Asset Protection Manager Baughman to offer

expert testimony that the bills photographed in State’s Exhibits 1 and 2 and used

at GameStop were counterfeit. Baughman had already offered similar testimony

about the bills used at Walmart with no objection. Further, other witnesses, both

before and after Baughman, testified that the GameStop bills were counterfeit

with no objection. Specifically, GameStop cashier Cook contrasted the bills with

the genuine article:

           •    The first bill he checked lacked a security strip and watermark,
               “didn’t feel normal,” and “felt different” than money;

           • The fifteen bills had only two different serial numbers among them;

           • Many of the bills had the same stamp on the back;

           • The bills looked faded, “as the[ir] ink [wa]s kind of washed away;”
             and

           • His manager agreed that they were not real.

      Additionally, Agent Boswell and Sergeant Turner testified that the bills

were counterfeit.

      A trial court’s erroneous admission of evidence will not require reversal

when other such evidence was received without objection before or after the

complained-of ruling.      Estrada, 313 S.W.3d at 302 n.29 (citing Leday,

983 S.W.2d at 718); Lane v State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).



                                        31
Further, to the extent Appellant’s issue focuses on the fact that Baughman’s

challenged testimony concerned photos of the counterfeit bills rather than the

bills themselves, we have already upheld the admission of the actual bills by

overruling Appellant’s sixth issue.    Thus, error, if any, in the admission of

Baughman’s testimony that the bills in the photographs in State’s Exhibits 1 and

2 were counterfeit was harmless. See Estrada, 313 S.W.3d at 302 n.29; Leday,

983 S.W.2d at 718. We overrule Appellant’s fourth issue.

                             III.     CONCLUSION

      Having overruled Appellant’s eight issues, we affirm the trial court’s

judgment.



                                                 /s/ Mark T. Pittman
                                                 MARK T. PITTMAN
                                                 JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

PUBLISH

DELIVERED: April 12, 2018




                                        32
