Opinion filed July 31, 2014




                                        In The


        Eleventh Court of Appeals
                                      __________

                                No. 11-12-00103-CR
                                      __________

                 ROBERT LARRY WILLIAMS, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 32nd District Court
                                 Nolan County, Texas
                              Trial Court Cause No. 11,177


                      MEMORANDUM OPINION
       Robert Larry Williams appeals his conviction for engaging in organized
criminal activity. See TEX. PENAL CODE ANN. § 71.02(a)(5) (West Supp. 2013).
After finding two enhancement paragraphs “true,” the jury assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of life and a fine of $10,000. In three issues on appeal,
Appellant argues that (1) the evidence was insufficient to sustain his conviction;
(2) the affidavit in support of the search warrant of his residence did not contain
probable cause sufficient for the issuance of the warrant; and (3) the trial court
improperly commented on the evidence presented at trial. We affirm.
                                 Background Facts
      Appellant was charged by indictment with the offense of engaging in
organized criminal activity. The indictment alleged that on or about October 6,
2010, Appellant knowingly possessed, with the intent to deliver, a controlled
substance—namely cocaine, in an amount of four grams or more but less than 200
grams, and that he committed such offense with the intent to establish, maintain, or
participate in a combination or in the profits of a combination who collaborated in
carrying on said criminal activity.
      Before the start of trial, Appellant filed motions to suppress the results of a
search of his residence and the contents of cell phones found there. After a hearing
on the motions, the trial court granted the motion relating to the contents of the cell
phones. The court denied the motion concerning the results of the search of
Appellant’s residence but ordered the State to disclose the names of the
anonymous sources it used in securing the warrant. The case proceeded to trial
upon Appellant’s plea of “not guilty.”
      Tim Blount, an investigator with the Nolan County Sheriff’s Office, testified
that his investigation of Appellant’s residence located in Sweetwater began after he
received information that narcotics were being sold there.          After conducting
surveillance on the house, Officer Blount orchestrated several controlled narcotics
purchases at the location using an informant named Marcus Caballero. Officer
Blount stated that Caballero bought $200.00 worth of crack cocaine at the
residence under the supervision of Abilene Police Officer Susan Belver on August
2, 2010, August 23, 2010, and September 20, 2010.
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        Officer Blount implemented electronic surveillance on the residence on
August 31, 2010, and the surveillance continued until October 6, 2010.            A
condensed version of the footage obtained from the surveillance was played for the
jury, and Officer Blount testified that the footage showed activity consistent with
drug dealing. The footage reveals that, on numerous times each day, a car pulled
up to the house and a person briefly went inside or a quick hand-to-hand
transaction occurred outside before the person got back in his or her car and drove
away.
        While observing the residence, Officer Blount witnessed an individual
named Eddie Presley making frequent stops at the house. On October 5, 2010,
Officer Blount followed Presley from Appellant’s residence to Presley’s residence.
After Officer Blount confronted Presley about his interaction with Appellant,
Presley surrendered $40.00 worth of crack cocaine that he admitted to having just
purchased from Appellant.
        Based on the controlled buys, the electronic surveillance, and the
information provided by Presley, Officer Blount obtained a warrant to search
Appellant’s residence. Officers executed the warrant at the residence on October
6, 2010. The search uncovered varying amounts of marihuana and approximately
4.93 grams of cocaine along with a razor blade with traces of cocaine on it. The
amount of $1,939.00 in cash was also found inside Appellant’s wallet.
        Caballero testified that he was in risk of having his probation revoked on a
theft-by-check charge when he agreed to be an informant in this case. Caballero
explained that he secretly recorded each controlled buy that he performed, and this
footage was played for the jury.
        Caballero made his first controlled purchase of crack cocaine on the front
porch of Appellant’s residence on August 2, 2010. Caballero bought the cocaine
from Cory Alldredge and Appellant’s daughter, Shinice Black. The video of the
                                          3
buy shows that when Caballero asked Black if everyone at the house sold the same
type of crack cocaine, Black stated that they all had “the same [product]”.
Appellant was also present during the buy and Caballero identified him in the
video as the individual who asked him “who you getting all that dope for right
there?”
      Caballero made his second controlled purchase of crack cocaine inside the
residence on August 23, 2010. Caballero testified that he bought the cocaine from
Appellant and his nephew, Jerome Williams.         In the video of the purchase,
Appellant and his nephew can be heard fighting over which one of them would sell
to Caballero. Appellant’s nephew can also be seen sorting the cocaine before
giving it to Caballero.
      Caballero made his third controlled purchase of crack cocaine inside the
residence from Jerry Washington on September 20, 2010. Caballero noted that
Appellant was present for this purchase as well. In the video of the purchase,
Caballero can be heard greeting Appellant after he enters the house.
      Eddie Presley testified that he purchased $40.00 worth of cocaine from
Appellant at the residence on October 5, 2010. Presley also stated that he had
bought cocaine from Appellant and others at the house several times in the past.
      Crystal Parker, an ex-girlfriend of Appellant’s cousin, testified that she
witnessed drug transactions at the residence and that she saw Appellant divide
cocaine with other members of the household. Parker further stated that Appellant
lived at the house and that she believed he was the head of the household.
      The jury ultimately found Appellant guilty of the offense of engaging in
organized criminal activity. After finding two enhancement paragraphs to be true,
the jury assessed Appellant’s punishment at confinement for a term of life and a
fine of $10,000.


                                         4
                             Sufficiency of the Evidence
      In his third issue, Appellant challenges the sufficiency of the evidence to
support his conviction. We review a sufficiency of the evidence issue, regardless
of whether it is denominated as a legal or factual claim, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded.    Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty 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; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
      As noted previously, the indictment alleged that on or about October 6,
2010, Appellant knowingly possessed, with the intent to deliver, four grams or
more of cocaine. When executing the search warrant on Appellant’s residence on
October 6, 2010, officers recovered approximately 4.93 grams of cocaine from
inside of a recliner on the porch of the residence and from inside of a van parked at
the residence. Appellant alleges that the evidence did not sufficiently link him to
the cocaine recovered by the officers. He additionally alleges that the evidence did


                                           5
not establish an intent to deliver on his part or his participation in a combination to
carry out the criminal activity.
      To prove unlawful possession of a controlled substance, the State must show
(1) that the accused exercised control, management, or care over the substance, and
(2) that the accused knew the matter possessed was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When the accused is not in
exclusive possession of the place where the contraband is found, the State must
show additional affirmative links between the accused and the contraband. See
Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no
pet.). An affirmative link generates a reasonable inference that the accused knew
of the contraband’s existence and exercised control over it.           See id.    The
“affirmative links rule” is designed to protect the innocent bystander from
conviction based solely on fortuitous proximity to someone else’s drugs.
Poindexter, 153 S.W.3d at 406. Thus, when the accused is not in exclusive
possession of the place where the substance is found, there must be additional
independent facts and circumstances that affirmatively link the accused to the
contraband. Id.
      Courts have identified the following factors as affirmative links that may
establish an accused’s knowing possession of a controlled substance:
             (1) the accused’s presence when a search is conducted; (2)
      whether the contraband was in plain view; (3) the accused’s proximity
      to, and the accessibility of, the contraband; (4) whether the accused
      was under the influence of narcotics when arrested; (5) whether the
      accused possessed narcotics or other contraband when arrested; (6)
      whether the accused made incriminating statements when arrested; (7)
      whether the accused attempted to flee; (8) whether the accused made
      furtive gestures; (9) whether there was an odor of contraband; (10)
      whether other contraband or drug paraphernalia were present; (11)
      whether the accused owned or had the right to possess the place where
      the contraband was found; (12) whether the place where the

                                          6
      contraband was found was enclosed; (13) whether the accused was
      found with a large amount of cash; and (14) whether the conduct of
      the accused indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). It is the logical
force of such links, rather than mere quantity, that is important in determining
whether the evidence is sufficient to connect the accused to the alleged contraband.
Id. at 162. The list of affirmative links is not exclusive. Id. Appellate courts do
not balance the absent affirmative links against the affirmative links that are
present. See Wiley v. State, 388 S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d). In other words, the absence of various affirmative links is not
evidence of innocence. Id.
      The evidence shows that Appellant lived at the residence and frequently
drove the vehicle from which the cocaine was recovered. He was present at the
residence on the porch when the search was conducted, and he recently occupied
the van prior to the execution of the search warrant. He also had a large amount of
cash in his wallet at the time of the search. He was present when previous drug
transactions occurred, and he directly participated in the delivery of cocaine to
Presley on the day preceding the search.         These facts provided sufficient
affirmative links for a rational jury to determine beyond a reasonable doubt that
Appellant knowingly possessed the cocaine found at his residence and in his van.
      We also conclude that there was sufficient evidence to establish Appellant’s
intent to deliver.   “Deliver” means to transfer, actually or constructively, a
controlled substance to another. TEX. HEALTH & SAFETY CODE ANN. § 481.002(8)
(West Supp. 2013). As noted previously, the State offered evidence that Appellant
directly participated in the delivery of cocaine, including the day preceding the
execution of the search warrant. A rational juror could have concluded beyond a
reasonable doubt that Appellant possessed the seized cocaine for the purpose of

                                         7
future deliveries. Additionally, Appellant’s possession of a large amount of cash
and the lack of drug paraphernalia for personal use of cocaine are items of
circumstantial evidence supporting an intent to deliver. See Moreno v. State, 195
S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
      Finally, a person engages in organized criminal activity “if, with the intent to
establish, maintain, or participate in a combination or in the profits of a
combination . . . [he] commits or conspires to commit one or more [enumerated
offenses].” PENAL § 71.02; see Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App.
2002). The term “combination” means “three or more persons who collaborate in
carrying on criminal activities.” PENAL § 71.01(a) (West 2011). To establish
participation in a combination, the State must prove “that the appellant intended to
‘establish, maintain, or participate in’ a group of three or more, in which the
members intend to work together in a continuing course of criminal activities.”
Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). Direct evidence of
the intent to participate in a combination is not required. McGee v. State, 909
S.W.2d 516, 518 (Tex. App.—Tyler 1995, pet. ref'd). It is permissible to infer an
agreement among a group working on a common project when each person’s
action is consistent with realizing the common goal. Id.
      Officer Blount testified that he witnessed drug transactions at Appellant’s
residence over the course of more than a month and stated that electronic
surveillance of the house showed activity consistent with drug dealing. Caballero
testified that Appellant and at least four other people sold him cocaine at the house
and video of these purchases was played for the jury. Presley testified that he
bought crack cocaine from Appellant and others at the house many times,
including the day he surrendered two rocks of crack cocaine to Officer Blount.
Parker testified that she witnessed drug transactions at the house and that she saw
Appellant divide cocaine with other members of the household. Additionally,
                                          8
officers found a large amounts of cash in Appellant’s wallet and large amounts of
shoes and caps were found inside of Appellant’s room in the residence. Officer
Blount testified that Appellant did not appear to have a job outside of the home.
      Viewed in the light most favorable to the conviction, we find that there was
sufficient evidence for a rational trier of fact to have found all of the elements of
engaging in organized criminal activity beyond a reasonable doubt. The evidence
established that Appellant and at least four others were part of a combination that
distributed crack cocaine for profit. We overrule Appellant’s third issue.
                             Search Warrant Affidavit
      In his first issue, Appellant contends that Officer Blount’s probable cause
affidavit provided in support of the search warrant did not set out sufficient
probable cause for the issuance of the warrant. He contends that the affidavit was
conclusory and misleading. Appellant further contends that the affidavit failed to
establish the credibility of the informants used in this case and contained stale
information.
      The Fourth Amendment to the United States Constitution mandates that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be
seized.” U.S. CONST. amend. IV. A magistrate judge cannot issue a search warrant
without first finding probable cause that a particular item will be found in a
particular location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007).
An application for a search warrant must be supported by an affidavit setting forth
facts establishing probable cause. TEX. CODE CRIM. PROC. ANN. art. 1.06 (West
2005), art. 18.01(b) (West Supp. 2013). Probable cause exists when, under the
totality of the circumstances, there is a fair probability that contraband or evidence
of a crime will be found at the specified location. State v. McLain, 337 S.W.3d
268, 272 (Tex. Crim. App. 2011). The test for finding probable cause is “whether a
                                          9
reasonable reading by the magistrate would lead to the conclusion that the affidavit
provided a ‘substantial basis for the issuance of the warrant[,]’ thus, ‘[t]he
magistrate’s sole concern should be probability.’” Rodriguez, 232 S.W.3d at 60
(alterations in original, footnote omitted). This is a “‘flexible and nondemanding’
standard.” Id.
      We review a trial court’s ruling on a motion to suppress by using a
bifurcated standard of review, giving almost total deference to the historical facts
found by the trial court and reviewing de novo the trial court’s application of the
law. McLain, 337 S.W.3d at 271; Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007). However, when the trial court determines whether there is
probable cause to support the issuance of a search warrant, there are no credibility
determinations; rather, the trial court is constrained to the four corners of the
probable cause affidavit. McLain, 337 S.W.3d at 271; Hankins v. State, 132
S.W.3d 380, 388 (Tex. Crim. App. 2004). Accordingly, when we review the
magistrate’s decision to issue a warrant, we apply a highly deferential standard
because of the constitutional preference for searches to be conducted pursuant to a
warrant as opposed to a warrantless search. McLain, 337 S.W.3d at 271;
Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004) (citing
Illinois v. Gates, 462 U.S. 213, 238 (1983)). As long as the magistrate had a
substantial basis for concluding that probable cause existed, we will uphold the
magistrate’s probable cause determination. Gates, 462 U.S. at 236; McLain, 337
S.W.3d at 271. We are instructed not to analyze the affidavit in a hyper-technical
manner. Gates, 462 U.S. at 236; McLain, 337 S.W.3d at 271.             “[W]hen an
appellate court reviews an issuing magistrate’s determination, that court should
interpret the affidavit in a commonsensical and realistic manner, recognizing that
the magistrate may draw reasonable inferences. When in doubt, we defer to all


                                        10
reasonable inferences that the magistrate could have made.” McLain, 337 S.W.3d
at 271; Rodriguez, 232 S.W.3d at 61.
      Officer Blount’s probable cause affidavit provided in relevant part as
follows:
      On August 2, 2010, your Affiant conducted a control delivery of crack
      cocaine from the suspected place 1 where a quantity of crack cocaine was
      purchased from Shinice Fontellarene Black and Cory Alan Alldredge.

      On August 23, 2010, your Affiant conducted a control delivery of crack
      cocaine from the suspected place where a quantity of crack cocaine was
      purchased from [Appellant] and Jerome Eugene Williams.

      The suspected place has been under electronic surveillance since August
      31, 2010, and your Affiant has observed numerous vehicles and persons
      arriving at the suspected place and only staying for short periods of time
      which is an indication of a drug transaction. Your Affiant has also
      observed different people selling illegal narcotics; namely crack cocaine
      from the suspected place while your Affiant was conducting visual
      surveillance on the suspect location.

      On September 20, 2010, your Affiant conducted a control delivery of
      crack cocaine from the suspected place where a quantity of crack
      cocaine was purchased from Jerry DeWitt Washington, Jr.

      On October 5, 2010, 32nd Judicial District Attorney’s Office
      Investigator Billy Sides and your Affiant were conducting surveillance
      at the suspected place, and observed a known narcotics user approach
      the suspected place. Due to the safety of the known narcotic user, it is
      requested that the name stay anonymous. The Anonymous person
      approached the suspected place and was at the suspected place for less
      than five minutes. The known user then left the suspected place. When
      the Anonymous person stopped at the known user’s residence
      Investigator Sides and your Affiant made contact with the Anonymous
      person, and the Anonymous person self surrendered two crack rocks and
      stated the two crack rocks were purchased from the suspected place at
      1110 Runnels Street in Sweetwater, Texas. The suspected crack cocaine

      1
      The affidavit contained a detailed description of the “suspected place.”
                                              11
      was field tested and tested positive for cocaine. The field weight of the
      cocaine was approximately .3 grams. The Anonymous person freely
      drove to the District Attorney’s Office and gave a written statement to
      the fact that he/she had indeed purchased the two rocks of crack cocaine
      for $40.00 from a person know to him/her as Duna ([Appellant]) from
      the house on Runnels Street. The Anonymous person requested to
      remain anonymous due to his/her fear that he/she would be hurt by the
      drug dealers. The Anonymous person stated that he/she had purchased
      rock cocaine from the suspect location at least thirty times in the past
      and that he/she had bought from [Appellant], Ashley Regalado, Jerome
      Williams and Jerry (Tojo) Washington.

      Appellant challenges the probable cause affidavit in a divide-and-conquer
manner by parsing each paragraph and attacking them individually. This approach
is inconsistent with the prohibition against reading the affidavit in a hyper-
technical manner. Gates, 462 U.S. at 236; McLain, 337 S.W.3d at 271. Instead,
we are required to review the affidavit from a totality-of-the-circumstances
perspective. McLain, 337 S.W.3d at 272.
      We begin our analysis with the paragraph detailing the events occurring on
October 5, 2010, at Appellant’s residence. This date is significant because it is the
same date that Officer Blount signed the affidavit and it is also the same date that
the magistrate issued the search warrant. Additionally, the officers served the
warrant on the following morning. The description of the events occurring on
October 5 reveals that a “known narcotics user” purchased cocaine from
Appellant’s residence while under police supervision and that he produced the
cocaine he purchased from Appellant when intercepted by officers. This person
then provided a written statement detailing that he had purchased cocaine from
Appellant’s residence at least thirty times in the past.
      We conclude that the details provided in the warrant about the purchaser’s
activities on October 5 provided the magistrate with sufficient probable cause to
conclude that there was a fair probability that contraband or evidence of a crime
                                           12
would be found at Appellant’s house. The details provided in the preceding
paragraphs indicated that drugs had been sold from the residence on a continuous
basis for a number of weeks and served as an indication that drugs would be
present there after October 5. 2 We overrule Appellant’s first issue.
                         Comment on the Weight of the Evidence
       In his second issue, Appellant argues that the trial court improperly
commented on the weight of the evidence when State’s Exhibit No. 5 was admitted
into evidence. This exhibit consisted of video footage of Caballero’s controlled
buy occurring on August 23, 2010. After the State offered the video into evidence,
the following exchange took place between Appellant’s counsel and the trial court:
              [Appellant’s Counsel]: Judge, I’ve seen Exhibit 5 and reviewed
       it with my client. And our objections, I believe this is of an incident
       that occurred August 23rd of 2010. Judge, that’s not the charge that
       we’re charged with. We object to it. It’s extraneous evidence under
       404(b). It should be refused. And it also lacks relevancy.
             THE COURT: Overruled as to relevancy. In as much as the
       charge is engaging in organized criminal activity, the Defendant had
       notice of these various other dates. I find this to be part of the same
       transactions that constitute the charge the State is attempting to prove.
       The objection is overruled and State’s 5 is admitted.
               (State's Exhibit 5 admitted.)
               [Prosecutor]: Judge, may I publish State’s 5 to the jury?
               THE COURT: Yes.
              [Appellant’s Counsel]: And, Judge, just one last thing. Sorry to
       interrupt you. You said you find it’s part of the same transactions, and


       2
         Appellant contends that the information pertaining to the transactions occurring August
2, 2010, August 23, 2010, and September 20, 2010, should be disregarded because it was stale.
We disagree. While the passage of time is one factor that should be considered when
determining if the information in an affidavit is stale, the amount of time passed is less
significant if the affidavit contains facts showing “activity of a protracted and continuous nature,
i.e., a course of conduct.” Kennedy v. State, 338 S.W.3d 84, 93 (Tex. App.—Austin 2011, no
pet.).
                                                13
      we would object to that as a statement on the evidence and ask that
      you instruct the jury not to consider that.
             THE COURT: Objection is overruled.

Appellant contends that the trial court’s comment indicated a disbelief in his
position and implied approval and support of the State’s position.
      In ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall simply
decide whether or not it is admissible; nor shall he, at any stage of the proceeding
previous to the return of the verdict, make any remark calculated to convey to the
jury his opinion of the case. CRIM. PROC. art. 38.05 (West 1979). A trial court
must refrain from making any remark calculated to convey to the jury its opinion
of the case. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003). In
Brown, the Court of Criminal Appeals explained the rationale for this rule, stating:
      [J]urors are prone to seize with alacrity upon any conduct or language
      of the trial judge which they may interpret as shedding light upon his
      view of the weight of the evidence, or the merits of the issues
      involved.
Id.
      The trial court improperly comments on the weight of the evidence if it
makes a statement that implies approval of the State’s argument, indicates disbelief
in the defense’s position, or diminishes the credibility of the defense’s approach to
the case. See Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d). If a trial judge makes an improper comment on the
weight of the evidence, we must then decide if the comment was material, i.e., if
the jury was considering the same issue. Id. (citing Simon v. State, 203 S.W.3d
581, 592 (Tex. App.—Houston [14th Dist.] 2006, no pet.)). Only if the comment is
material must we determine whether it rises to the level of reversible error. See id.


                                         14
         We conclude that the trial court’s statement constituted an improper
comment on the weight of the evidence because it indicated the trial court’s
disagreement with Appellant’s position. Furthermore, the comment rose to the
level of being “material” because it addressed a matter that the State was
“attempting to prove” as noted by the trial court when making the comment. In
reaching this determination, it certainly does not appear that the trial court was
attempting to sua sponte interject an extraneous opinion about the evidence before
the jury. Instead, the trial court was simply explaining its ruling in response to
Appellant’s specific objection. However, the trial court’s motive in commenting
on the evidence is not relevant to our analysis. Simon, 203 S.W.3d at 591–92.
Accordingly, we must determine if the trial court’s comment constituted reversible
error.
         A trial court’s material and improper comment on the weight of the evidence
is a statutory violation subject to the non-constitutional error standard set out in
TEX. R. APP. P. 44.2(b). Simon, 203 S.W.3d at 593. In applying Rule 44.2(b), an
appellate court must disregard non-constitutional error unless it affects the
appellant’s substantial rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.
App. 2011). An appellate court should not overturn a criminal conviction for non-
constitutional error “if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or influenced the jury
only slightly.” Id.
         We conclude that the trial court’s comment constituted harmless error. The
evidence of Appellant’s participation in the delivery of drugs from his residence
was overwhelming. Officers monitored activities at the residence for over a month
and they conducted three controlled purchases with an informant.           Caballero
testified about Appellant’s actual participation in the August 23 transaction.
Additionally,     the    video   of    the     August   23   transaction    depicted
                                          15
Appellant’s participation. Accordingly, we have fair assurance that the trial court’s
comment had very little influence, if any, on the jury in light of the overwhelming
evidence of Appellant’s participation in the combination. We overrule Appellant’s
second issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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