                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-18-00056-CR
                           _______________________

                     JOHN DAVID COLLETTI, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee



                     On Appeal from the 9th District Court
                         Montgomery County, Texas
                       Trial Cause No. 17-02-02174-CR


                          MEMORANDUM OPINION

      A jury found Appellant John David Colletti guilty of possession with intent

to deliver a controlled substance, namely four grams or more but less than 200 grams

of methamphetamine. See Tex. Health & Safety Code Ann. § 481.112(d) (West

2017). The indictment alleged a prior felony conviction for enhancement purposes.

The trial court found the enhancement true and sentenced Colletti to twenty years’

confinement. In four issues, Colletti appeals his conviction. We affirm.


                                         1
                                     Background

      A grand jury indicted Colletti for manufacture or possession of a controlled

substance—methamphetamine—with intent to deliver, in an amount of four grams

or more but less than 200 grams, with allegations of a prior felony conviction.

Colletti pleaded “not guilty” to the offense and “not true” to the enhancement.

Testimony of Sergeant Clyde Vogel

      Sergeant Clyde Vogel, with the Conroe Police Department (CPD), testified

that he commonly works with a confidential informant (CI) on narcotics cases

because drug users are unlikely to engage directly with police officers, even

undercover officers. Vogel testified that he used a paid CI in this case. The CI had

worked before as a CI, and had some criminal and drug history, but Vogel believed

the CI was credible and reliable. According to Vogel, the CI had called him and said

he knew where he could get a quarter ounce of methamphetamine, and Vogel,

Detective Foxworth, and a DEA agent met with the CI and searched him and his car

before the buy. Vogel testified that the officers gave the CI $200 and an audio/video

recording device that allowed the officers to observe events in “almost real[-]time[,]”

with a two-to-three second lag time. Vogel and Detective Foxworth followed the CI

in one car, and the DEA agent followed in another car as the CI drove to a house on

Paradise Cove in Willis. The officers parked at some distance away from the house

                                          2
to avoid being identified. According to Vogel, they also placed a GPS tracking

device on the CI’s vehicle.

      Vogel testified that with video of the events, although he could not see the

physical exchange of narcotics, he could hear the CI and Colletti talking about the

price and he could hear Colletti counting the money. According to Vogel, he had

obtained a photograph of Colletti beforehand, he was able to identify Colletti in the

video counting money and in a still photograph taken from the video recording, and

he also identified the defendant in the courtroom as Colletti. Upon the CI’s return to

the officers’ location, the officers searched the CI and his car again and paid the CI.

The officers received the purchased drugs from the CI, logged them in at the police

department as evidence, and the drugs were then sent to the Texas Department of

Public Safety (DPS) for testing. Vogel identified State’s Exhibit 1 as the video of

the buy transaction, and the video was published to the jury.

Testimony of Detective Joseph Foxworth

      Detective Joseph Foxworth, a narcotics detective for the CPD, testified that

he usually works with CIs and that CIs commonly have a criminal history. Foxworth

agreed that he worked with Sergeant Vogel on the Colletti case. According to

Foxworth, he and Vogel searched the CI and his vehicle and gave the CI a recording

device before he went to make the narcotics purchase. Foxworth testified that he and

                                          3
Vogel followed the CI up to a point and then watched the live video feed. Following

the buy, Foxworth observed the CI hand over the purchased drugs to Vogel, the

recording device was deactivated, and the CI and vehicle were searched again. The

drugs were taken back to the police department and logged as evidence and later sent

to DPS for testing.

Testimony of the DEA Agent

      The DEA agent testified that he is a special agent and he has worked with the

CPD targeting methamphetamine distributors. He explained that he became

interested in Colletti because of multiple “cooperators” who had approached CPD

detectives identifying Colletti as a distributor as well as Colletti’s Facebook posts.

The DEA agent testified that Sergeant Vogel told him that a CI might be able to buy

from Colletti. According to the DEA agent, he watched everything that happened in

the Colletti case—including the searches of the CI and his vehicle and the CI turning

over the drugs to the officers—except for “the actual transaction of the money for

the dope[]” and the live video of the buy.

Testimony of Cheryl Szkudlarek

      Cheryl Szkudlarek testified that she is a forensic scientist with the DPS Safety

Crime Lab in Houston, and she was an analyst on the case. Szkudlarek testified that

the substance she tested weighed 6.71 grams and her analysis identified the

                                             4
substance as containing methamphetamine. Szkudlarek’s lab report for the CPD was

entered into evidence.

Testimony of the CI

      The State called the CI to testify, and he testified that he worked with the CPD

and, in working with Sergeant Vogel, he would purchase illegal narcotics. The CI

agreed he had some criminal history, including using methamphetamine, theft, and

possession of a controlled substance. According to the CI, he would be paid between

$150 and $400 for each case he brought to the CPD.

      The CI agreed that on February 5, 2016, he met with police, who searched

him and his vehicle and gave him $200 before he went to Colletti’s house to buy

methamphetamine. He agreed that the officers also gave him a recording device to

record the transaction. The CI gave Colletti the money and Colletti gave him the

drugs, after which the CI returned to the officers, who then searched him and his

vehicle again, and he gave the drugs to the officers. The CI identified Colletti as the

individual who sold him drugs on February 5, 2016. The CI also testified that he

mentioned “Robert” to Colletti, a name the CI made up, and that the CI believed

Colletti thought the CI planned to resell the drugs to “Robert.”




                                          5
                             Covert Witness Instruction

      In two issues, Colletti argues that he was denied the effective assistance of

counsel because his trial attorney failed to request a covert witness instruction and

that without such an instruction, there was not legally sufficient evidence to support

Colletti’s conviction. Colletti argues that had a covert witness instruction been given,

the jurors could have been “empowered . . . to outright disregard” the CI’s testimony

if they found it insufficiently corroborated. Colletti argues that the evidence was

insufficient to support the jury’s verdict and that he was prejudiced as a result of his

trial counsel’s failure to request such an instruction because the other evidence, aside

from the CI’s testimony, was a “dark, low-quality video” and testimony of officers

who did not go to Colletti’s house, did not track the CI, and did not adequately track

the money for the controlled buy.

      A defendant cannot be convicted of an offense under Chapter 481 on the

testimony of a confidential informant acting as a covert agent “unless the testimony

is corroborated by other evidence tending to connect the defendant with the offense

committed.” Tex. Code Crim. Proc. Ann. art. 38.141(a) (West 2005). When

weighing the sufficiency of the evidence under the covert-witness rule, we apply the

same standard for corroboration used for the accomplice-witness rule. Malone v.

State, 253 S.W.3d 253, 258 (Tex. Crim. App. 2008); see also Tex. Code Crim. Proc.

                                           6
Ann. art. 38.14 (West 2005), 38.141. When weighing the sufficiency of

corroborating evidence under article 38.141(a), a reviewing court 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. See Malone, 253 S.W.3d at 258. We view the

independent evidence in the light most favorable to the jury’s verdict to determine

whether it tends to link the defendant to the crime. Brown v. State, 270 S.W.3d 564,

567 (Tex. Crim. App. 2008).

      We consider the combined weight of the non-informant evidence, even if that

evidence is entirely circumstantial. See Padilla v. State, 462 S.W.3d 117, 126 (Tex.

App.—Houston [1st Dist.] 2015, pet. ref’d) (citing Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)); see also Temple v. State, 390 S.W.3d 341, 359

(Tex. Crim. App. 2013) (“A criminal conviction may be based upon circumstantial

evidence.”). The corroborating evidence does not need to be sufficient by itself to

establish that the accused is guilty beyond a reasonable doubt. Smith v. State, 392

S.W.3d 190, 195 (Tex. App.—San Antonio 2012, pet. ref’d). Likewise, the

corroborating evidence need not directly link the accused to the offense. Castillo v.

State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). Though “mere presence” is

insufficient corroboration, evidence that the accused was at or near the scene when

                                         7
or about when it was committed may sufficiently tend to connect the accused to the

crime, provided the evidence is “coupled with other suspicious circumstances[.]”

Malone, 253 S.W.3d at 257; Brown v. State, 159 S.W.3d 703, 708 (Tex. App.—

Texarkana 2004, pet. ref’d). Corroboration does not require a set quantum of proof.

Malone, 253 S.W.3d at 257. “[T]he evidence must simply link the accused in some

way to the commission of the crime and show that ‘rational jurors could conclude

that this evidence sufficiently tended to connect [the accused] to the offense.’” Id. at

257 (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)).

      When the State relies on testimony that is required by statute to be

corroborated, it is error for the trial court not to instruct the jury that the defendant

cannot be convicted on that testimony unless there is other evidence tending to

connect the defendant with the offense and that evidence showing only the

commission of the offense is insufficient. See Simmons v. State, 205 S.W.3d 65, 77

(Tex. App.—Fort Worth 2006, no pet.) (failure to instruct jury on requirement of

corroboration of informant’s testimony is error); Jefferson v. State, 99 S.W.3d 790,

793 (Tex. App.—Eastland 2003, pet. ref’d) (same); cf. Herron v. State, 86 S.W.3d

621, 631 (Tex. Crim. App. 2002) (failure to instruct jury about requirement of

corroboration of accomplice-witness testimony was error). The jury charge here did

not include an independent-corroboration instruction.

                                           8
      Because Colletti did not object to the charge, we may reverse Colletti’s

conviction on this basis only if we determine that he was egregiously harmed by the

error. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Under the

egregious-harm standard, the omission of a corroborating-evidence instruction may

be rendered harmless if evidence of other non-informant testimony exists that fulfills

the purpose of the instruction. See Herron, 86 S.W.3d at 632. The purpose of the

instruction is to inform the jury that it cannot use an informant’s testimony unless it

determines that other evidence exists connecting the defendant to the offense. Id. If

other evidence exists, the purpose of the instruction may have been fulfilled. Id.; see

also Simmons, 205 S.W.3d at 77.

      In this case, the drug deal between Colletti and the CI was recorded on audio

and video, it was observed in “almost real[-]time” at a distance by two law

enforcement officers, and the recording of the transaction was delivered directly to

the officers. The CI was searched before and after the controlled buy, he took money

given to him by Officer Vogel, and after meeting with Colletti, the CI returned to

the officers without the money but with methamphetamine. Given the additional

evidence linking Colletti to the charged offense, we cannot say that Colletti was

egregiously harmed by the omission of a corroborating-evidence instruction, and we

conclude that the evidence is sufficient to meet the corroboration requirement of

                                          9
article 38.141. See Pena v. State, 251 S.W.3d 601, 608 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d).

                            Effective Assistance of Counsel

      A defendant has a Sixth Amendment right to the effective assistance of

counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668,

685-86 (1984). To establish that he received ineffective assistance of counsel,

Colletti must demonstrate that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 687-88, 694. The party alleging ineffective assistance has the

burden to develop facts and details necessary to support the claim. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-

assistance claim must overcome the “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” See Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An

appellant’s failure to make either of the required showings of deficient performance

or sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d



                                          10
675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”).

      The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

counsel should not be judged on isolated portions of his representation. See

Thompson, 9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App.

1990). Isolated failures to object to improper evidence or argument ordinarily do not

constitute ineffective assistance of counsel. See Ingham, 679 S.W.2d at 509; Ewing

v. State, 549 S.W.2d 392, 395 (Tex. Crim. App. 1977). To meet his burden on his

claim that his counsel was ineffective for failing to object to evidence, an appellant

must also establish that the trial court would have committed error in overruling that

objection had the objection been made. See Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996).

      Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial to demonstrate in the appeal that trial counsel provided

ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as

                                         11
ineffective, counsel should normally be given an opportunity to explain the

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). When counsel has not been given an opportunity to explain the challenged

actions, we will find deficient performance only when the conduct was “‘so

outrageous that no competent attorney would have engaged in it.’” Id. (internal

citations omitted).

      The Court of Criminal Appeals has held that when the State’s case for

conviction depends heavily on the testimony of the accomplice witness, trial

counsel’s failure to request an accomplice-witness corroboration instruction

constitutes deficient performance under the first Strickland prong. See Davis v. State,

278 S.W.3d 346, 352 (Tex. Crim. App. 2009). Assuming without deciding that and

the failure to request a corroboration instruction would constitute deficient

performance, we must still determine whether there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have been different. See

id. at 352-53 (citing Strickland, 466 U.S. at 692).

      The record reflects that a significant amount of non-covert-witness testimony

was presented at trial, including the testimony of three law enforcement officers in

addition to the recording of events. As we have already explained, this other

evidence tends to connect Colletti to the offense committed, and Colletti points to

                                          12
no evidence in the record that would provide a rational basis on which the jury could

have doubted or disregarded that evidence. A jury may choose to believe or

disbelieve any witness, or any portion of a witness’s testimony. Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986). The non-covert-witness evidence, if

believed, established that Colletti was at or near the scene of the offense at or near

the time of its commission and that after meeting with Colletti, the officers found

the CI to possess methamphetamine but not the “buy” money the CI received from

Sergeant Vogel. Given the non-covert-witness evidence that tended to connect

Colletti to the offense committed, Colletti has not met his burden to prove that, but

for counsel’s deficient performance, the result of the jury trial would have been

different. See Davis, 278 S.W.3d at 352-53. As a result, we conclude that Colletti

has failed to satisfy the second Strickland prong, and we overrule Colletti’s first and

second issues.

                                Confrontation Clause

      In his third issue, Colletti argues that the trial court erred in limiting the scope

of cross-examination of the CI. According to Colletti, when the trial court limited

cross-examination, the jury was unable to hear testimony about the CI’s criminal

history and financial need. Colletti suggests this testimony was relevant in showing

the CI’s bias, motive to create false allegations, and efforts to “curry favor” with the

                                           13
police and obtain more opportunities to work as a CI. Colletti argues that by limiting

the cross-examination of the CI, he was deprived of his Sixth Amendment

Confrontation Clause right.

      To preserve error on Confrontation Clause grounds, a defendant must make a

sufficiently specific objection on that basis. See Reyna v. State, 168 S.W.3d 173, 179

(Tex. Crim. App. 2005) (concluding that because the defendant failed properly to

preserve his Confrontation Clause claim, he forfeited his right to appellate review

on that claim); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)

(same); see also Tex. R. App. P. 33.1(a)(1). The record shows that during trial,

Colletti’s counsel did not argue that the Confrontation Clause demanded that Colletti

be given the opportunity to cross-examine the CI. Colletti’s attorney argued at trial

that the CI’s prior convictions were admissible under the Rule 609 for impeachment

purposes. Thus, Colletti failed to articulate a Confrontation Clause objection to the

trial court, depriving the trial court of the opportunity to rule upon its admissibility

based on the rationale Colletti presented on appeal. See Reyna, 168 S.W.3d at 179;

Smallwood v. State, 471 S.W.3d 601, 614 (Tex. App.—Fort Worth 2015, pet. ref’d).

Because Colletti failed to preserve error based on Confrontation Clause grounds, we

overrule his third issue. See Reyna, 168 S.W.3d at 179; Paredes, 129 S.W.3d at 535;

Smallwood, 471 S.W.3d at 614; see also Tex. R. App. P. 33.1(a)(1).

                                          14
                  Exclusion of Evidence of CI’s Prior Convictions

      Colletti also argues that the trial court erred in excluding evidence of the CI’s

prior criminal conviction for terroristic threat-family member and that such evidence

was admissible under Rule 609 as a crime of moral turpitude. According to Colletti,

excluding this evidence “deprived the jury of the ability to understand the full,

relevant background of [CI] and assess his credibility as a witness in the context of

his conduct in the very recent past.”

      Generally, an appellate court reviews the trial court’s exclusion of

impeachment evidence for an abuse of discretion. See Theus v. State, 845 S.W.2d

874, 881 (Tex. Crim. App. 1992); Morris v. State, 214 S.W.3d 159, 187 (Tex.

App.—Beaumont 2007), aff’d, 301 S.W.3d 281 (Tex. Crim. App. 2009). If the trial

court’s decision falls within the zone of reasonable disagreement, it will be upheld.

Buntion v. State, 482 S.W.3d 58, 71 (Tex. Crim. App. 2016) (citing Freeman v. State,

340 S.W.3d 717, 724 (Tex. Crim. App. 2011)). When the trial court’s evidentiary

ruling can be sustained under any theory of law that applies to the case, the ruling

will not be reversed on appeal. See Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990). Rule 609(a) provides that witness credibility may be attacked by

admitting evidence that the witness previously has been convicted of a felony or

crime of moral turpitude if the trial court determines that the probative value of

                                         15
admitting the evidence simply outweighs its prejudicial effect. See Tex. R. Evid.

609(a); Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015).

      Assuming without deciding that the CI’s conviction for “terroristic threat-

family member” is a crime of moral turpitude, we conclude the trial court did not

abuse its discretion in concluding that the probative value of the excluded evidence

did not outweigh its prejudicial effect. There is a non-exclusive list of factors that

we consider when determining whether the probative value of a prior conviction

outweighs its prejudicial effect, including: (1) the impeachment value of the prior

crime; (2) the temporal proximity of the past crime relative to the charged offense

and the witness’s subsequent history; (3) the similarity between the prior conviction

and the offense being prosecuted; (4) the importance of the witness’s testimony; and

(5) the importance of the credibility issue. See Theus, 845 S.W.2d at 880; Leyba v.

State, 416 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)

(considering the Theus factors in determining admissibility under Texas Rule of

Evidence 609(b)). These factors are also relevant when a defendant wishes to

impeach a prosecution witness with a prior conviction. Theus, 845 S.W.2d at 880.

The impeachment value of crimes that involve deception is higher than those

involving violence, while crimes involving violence have a higher potential for

prejudice. Id. at 881. If the prior conviction relates more to deception, then the first

                                          16
factor weighs in favor of admission. Id. That said, if the prior conviction involves

violence, then this factor weighs in favor of exclusion. See id.

      Here, the CI’s conviction for terroristic threat-family member is not a crime

involving deception but rather a crime involving the threat of violence. See id.

Therefore, this factor weighs in favor of exclusion and not admission. See id.

Regarding the second factor—temporal proximity—the CI’s conviction for

terroristic threat was in September 2015 while his testimony at trial was in December

2017. Given the limited information in the record about the offense, we do not find

this factor to weigh in favor of admission. As to the third factor—the similarity

between the prior conviction and the offense being prosecuted—we find this factor

does not weigh in favor of admission because there is no similarity and the CI was

serving as a witness and was not being prosecuted as the defendant. As for the fourth

and fifth Theus factors—the importance of the witness’s testimony and the

importance of the credibility issue—the CI was not the only witness to testify that

Colletti possessed a controlled substance with the intent to manufacture or distribute.

Three law enforcement officers testified that the CI returned from a controlled buy

and that he obtained the methamphetamine from Colletti. Sergeant Vogel testified

that he watched the video of events in “almost real[-]time” during which he could

hear the CI and Colletti talking about the price and he could hear Colletti counting

                                          17
the money. The video of events was admitted into evidence. Because the CI was not

the only witness who testified regarding the controlled buy from Colletti, these two

factors do not weigh in favor of admission. See id.

      Applying the Theus factors to the excluded evidence that Colletti challenges,

we conclude that it was within the zone of reasonable disagreement for the trial court

to have excluded evidence of the CI’s prior conviction for terroristic threat-family

member because the prejudicial effect of such evidence substantially outweighed its

probative value. See Tex. R. Evid. 609; Theus, 845 S.W.2d at 880; Morris, 214

S.W.3d at 187-88 (applying Theus factors and concluding the prejudicial value of

evidence of a prior conviction was significant). We overrule Colletti’s fourth issue.

We affirm the trial court’s judgment.

      AFFIRMED.



                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice


Submitted on April 17, 2019
Opinion Delivered July 10, 2019
Do Not Publish

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


                                         18
