Affirmed and Opinion Filed July 13, 2015




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-01411-CR

                               TRACY SWIMS, JR, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1330583-N

                             MEMORANDUM OPINION
                         Before Justices Bridges, Fillmore, and Brown
                                  Opinion by Justice Bridges
       A jury convicted appellant Tracy Swims, Jr. of possession of a useable quantity of

marijuana in an amount of fifty pounds or less but more than five pounds. The trial court, after

finding two enhancement paragraphs true, sentenced Swims to thirty years’ imprisonment.

       On appeal, Swims argues the evidence is legally insufficient to support his conviction for

possession of marijuana, and the trial court erroneously instructed the jury on law of parties. In

his remaining issues, he argues the trial court abused its discretion by admitting (1) suspected

marijuana, without proving it was marijuana, (2) cell phone photographs, (3) an email, and (4)

testimony from a Mega Bus employee about drug trafficking. We affirm the trial court’s

judgment.
                                           Background

       On March 5, 2013, around 11 p.m., Jerome Robinson was working as an assistant

supervisor for Mega Bus in Grand Prairie, Texas. His duties included checking reservations and

making sure passengers boarded the bus safely and the luggage was loaded correctly. He also

identified any suspicious luggage.

       During the process of loading luggage, one passenger, later identified as Swims, handed

Robinson a bag that felt “unusual . . . It felt like something hard, something compressed.” It was

heavy and had a “real loud odor to it.” Robinson said someone familiar with the smell of

marijuana would know the bag contained narcotics because the odor was “real strong.”

Robinson took the black duffel bag from the passenger, who he described as a tall male wearing

a white-striped shirt, black hat, and black shoes.

       Robinson handed the bag to his co-worker, Joshua Simpson, who agreed the black duffel

bag felt funny. Simpson also noticed the weight of the bag and its texture because it was lumpy,

which was “very suspicious.” He explained that for the size of the bag, it was heavy. When

Simpson opened the bag they saw hard bricks wrapped in newspaper, and they knew it was

marijuana. Simpson caught a glimpse of the person who handed the bag to Robinson, and

Simpson described the man as a tall, black male, wearing a black baseball cap.

       A supervisor shut down the bus and called police. All the passengers stayed on the bus

and the luggage bin remained open until officers arrived. Robinson and Simpson noticed some

passengers moving back and forth between the bathroom and acting suspiciously by “moving

around too much.” Simpson described it as, “Just out of the ordinary.” Swims was one of the

passengers moving around, going to the bathroom, and making head gestures.




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       Officer Brian Heymes was the first officer to arrive at the bus station. Robinson told him

the bus was on lock down because of suspected narcotics. Robinson explained he received a

black duffel bag from a black male wearing a white-striped shirt, a baseball cap, and black

jacket. Robinson identified the bag for Officer Heymes.

       Officer Heymes also observed a group of three or four individuals huddled together, who

then separated and went to different areas, including the bathroom.        He said they would

reconvene and then separate again. At some point, he said they stayed in separate areas of the

bus. Officer Heymes identified Swims as one of the individuals in the group.

       Officer Derrick Castleberry watched Swims inside the bus after it was on lock down.

Swims moved from the upper deck to the lower deck of the bus and talked with a female. He

then went back to the upper deck, talked with a man subsequently identified as Swims’s cousin,

and later entered the bathroom on the lower deck.         Officers later found marijuana in the

bathroom. Officer Castleberry said Swims was watching out the window the whole time.

Officer Castleberry thought Swims’s movements were suspicious because he was the only one

moving back and forth and up and down on the bus. Officer Castleberry did not notice anyone

else acting suspiciously.

       Officer Heymes called the K-9 unit. Officer Albert Martinez and his K-9 partner, Rocco,

arrived shortly thereafter. When the K-9 unit arrived, Swims was talking loudly, cussing, and

wanting to know when the bus was leaving.

        Officer Heymes apprised Officer Martinez of the situation, but Officer Martinez did not

want to know which bag contained the possible marijuana because he wanted to see if Rocco

alerted on it. Officer Martinez gave Rocco the command to search and Rocco initially alerted on

a blue bag and a black bag, but Officer Heymes said those were not the suspected bag. Rocco

continued to search. Rocco then alerted on the black duffel bag. After Rocco alerted on the

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black duffel bag, they opened it and Officer Heymes immediately recognized the vacuum-sealed

package as marijuana. The black duffel bag also contained women’s clothing with the tags still

attached, indicating they had never been worn.

       Officers opened the two other bags Rocco alerted on and found more packaged

marijuana. Officers then removed all the luggage from the baggage compartment except the

three they knew had narcotics and lined them up against the wall. Officers asked the eighteen

passengers, individually, to describe their bag, and asked for consent to search. Once a bag was

cleared, it was moved to the lobby. After this process, one bag remained unclaimed and another

unclaimed bag was located inside the passenger compartment.         Thus, a total of five bags

remained unclaimed and three passengers, without bags, said the bags did not belong to them.

These three passengers, who were traveling together, included Swims, Sylvester McKenzie, and

Anthony Smith. In the end, officers collected five bags with marijuana. The total street value of

the marijuana was approximately $48,000.

       Detective Cesar Guerra received a call from Officer Martinez after Rocco alerted on the

three bags.   Detective Guerra worked in the narcotics unit for the Grand Prairie police

department.    While at police academy, he was trained to identify marijuana, heroin,

methamphetamine, and cocaine. He also had experience with drug trafficking and testified

Grand Prairie was a key location for moving drugs from Mexico into the United States. Drug

couriers typically transported drugs in buses because an individual could buy a ticket online or

purchase with cash. Further, bags were not labeled, making it harder to identify which bags

belonged to which passengers.

       Detective Guerra talked to Swims at the scene. He asked Swims basic questions like

where he was coming from and where were his bags. Swims was not forthcoming with his

answers and changed his story several times. First, he said he came from Austin, but he later

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said he traveled from Memphis, Tennessee to Houston. Swims first told officers the only bag he

carried on the bus belonged to his cousin, McKenzie. This particular bag, the black duffel bag,

contained approximately twenty-one pounds of marijuana. Swims later disclosed he had left a

bag on the bus, and officers found a plastic Walmart bag with only a pair of size 40 jeans.

Swims said he wore size 40 or 42 pants.

       Another unclaimed bag contained marijuana and clothing in size 40-42. Swims told an

officer, “Well, just because there’s several, you know, shorts in that bag, that size doesn’t mean

that bag belongs to me.” Detective Guerra thought the statement was suspicious because he had

not finished unpacking all the items in the bag, yet Swims knew more than one pair of shorts was

inside the bag. Detective Guerra also found Saran Wrap, dryer sheets, and toilet paper, which

were commonly used in drug trafficking to conceal the smell of narcotics.

       Lieutenant Ronnie Morris arrived at the bus station approximately an hour and a half into

the investigation. Officers had already separated three individuals from the other passengers,

one of which was Swims. Detective Guerra finished talking with Swims and then turned his

focus to the bags. Lieutenant Morris said no one was watching Swims. He noticed Swims

sitting straight, shaking his legs, rubbing his thighs, and looking around as if “he was looking for

an escape route possibly to run.” Based on his prior experience with suspects trying to flee,

Lieutenant Morris moved next to Swims to make sure he did not try to run.

       Detective Guerra interviewed Swims again after he was taken into custody. Swims said

he carried the black duffel, which was his cousin’s bag, but continued to deny any knowledge of

the marijuana.

       Detective Guerra testified Swims adamantly denied having anything to do with the

marijuana, and Swims never claimed ownership of any bag containing marijuana. However, he

testified Swims was arrested, rather than the other two men traveling with him, because of the

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totality of the circumstances. Three credible witnesses identified Swims with the black duffel

bag and “the affirmative links led to Mr. Swims.”

       The jury convicted Swims of possession of a useable quantity of marijuana in an amount

of fifty pounds or less but more than five pounds. The trial court, after finding two enhancement

paragraphs true, sentenced Swims to thirty years’ imprisonment. This appeal followed.

                                  Sufficiency of the Evidence

       In his first issue, Swims argues the evidence is legally insufficient to support his

conviction because the State failed to establish he had care, custody, or control of any of the

marijuana found in the bags. The State responds the evidence is sufficient to support his

conviction.

       In a legal sufficiency review, we view all the evidence in the light most favorable to the

verdict and 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 (1979). The

jury, as the sole judge of witness credibility, is free to believe or disbelieve all or part of a

witness’s testimony. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

       A person commits the offense of possession of a controlled substance if he knowingly or

intentionally possesses the substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a)

(West 2010). To prove unlawful possession of a controlled substance, the State must prove the

accused exercised care, custody, control, or management over the substance, and the accused

knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.

Crim. App. 2005).     Whether direct or circumstantial, the evidence must establish that the

accused’s connection with the controlled substance was more than just fortuitous. Id, at 405–06.

Mere presence at a location where drugs are found is insufficient, by itself, to establish

possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Further, when the


                                              –6–
accused is not in exclusive possession of the place where the substance is found, it cannot be

concluded that the accused had knowledge of and control over the contraband unless there are

additional independent facts and circumstances which affirmatively link the accused to the

contraband. Poindexter, 153 S.W.3d at 406.

       A nonexclusive list of factors that can be sufficient, either alone or in combination, to

establish possession of contraband include: (1) presence when a search is conducted, (2) whether

the contraband was in plain view, (3) proximity to and the accessibility of the contraband, (4) the

accused being under the influence of narcotics when arrested, (5) possession of other contraband

or narcotics when arrested, (6) incriminating statements made by the accused when arrested, (7)

an attempt to flee, (8) furtive gestures, (9) an odor of contraband, (10) the presence of other

contraband or drug paraphernalia, (11) whether the accused owned or had the right to possess the

place where the drugs were found, (12) whether the place where the drugs were found was

enclosed, (13) possession of a large amount of cash, (14) conduct indicating a consciousness of

guilt, (15) the accused’s incriminating statements connecting himself to the contraband, (16) the

quantity of the contraband, and (17) the accused’s presence in a suspicious area under suspicious

circumstances. Evans, 202 S.W.3d at 162 n.12. These are simply some factors which may

circumstantially establish the sufficiency of the evidence to prove knowing possession. Id.

However, no set formula of facts exists to dictate a finding of links sufficient to support an

inference of knowing possession. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas

2003, no pet.). The number of linking factors present is not as important as the logical force they

create to prove the crime was committed. Evans, 202 S.W.3d at 162; Taylor, 106 S.W.3d at 831.

       Here, Robinson and Simpson identified Swims as the man who handed off the black

duffel bag containing approximately twenty-one pounds of marijuana.           Robinson also said




                                               –7–
Swims’s cousin did not hand Swims the bag before Swims handed it to him. Swims had the bag

the entire time and handed it directly to Robinson.

       The smell of marijuana emanating from the black duffel bag was obvious to those in the

immediate area. The bag was described as unusually heavy and the texture felt funny.

       After officers arrived, both Mega Bus employees and officers noticed Swims moving

around the compartment, cussing, and talking loudly. He moved back and forth to the bathroom,

where officers later found marijuana. Lieutenant Morris testified Swims exhibited behavior of

someone preparing to flee from the scene.

       Some of the drugs were wrapped in pages of an Austin newspaper, the location Swims

admitted recently visiting.

       Swims gave inconsistent stories about his travel and whether he had any bags on the bus.

He first said he did not have any bags, which officers found suspicious because Swims had

traveled for several days between Tennessee and Texas. Swims then said he only carried on a

Walmart bag with one pair of size 40 pants. However, two other bags with marijuana contained

similar-sized clothing, and officers testified Swims seemed to know about the clothing in these

bags before they finished looking through them.

       Finally, Swims admitted to carrying the black duffel bag for his cousin, but he adamantly

denied knowing the black duffel bag contained drugs. Given the testimony that the bag was

heavy for its size, felt funny, and gave off a “loud odor,” the jury could reasonably infer Swims

knew the bag contained marijuana. Moreover, although the bag contained women’s clothing,

Detective Guerra explained this was a good tactic to “throw[ ] people off the scent if you’re a

male carrying a bag loaded with 22 pounds of marijuana . . . .”

       Given Swims’s possession of the suspicious black duffel bag emanating the obvious odor

of marijuana, his inconsistent statements to police, his suspicious behavior on the bus after

                                               –8–
officers arrived, his behavior indicating an attempt to flee, and his apparent knowledge of the

contents of other bags containing marijuana, a jury could rationally find the logical force of the

evidence established that Swims knowingly and intentionally exercised care, custody, and

control over the marijuana in the black duffel bag. See Evans, 202 S.W.3d at 162. Thus, his

connection with the bag was more than just fortuitous. See Poindexter, 153 S.W.3d at 405–06

(noting that whether evidence is direct or circumstantial, it must establish the accused’s

connection with the drugs was more than just fortuitous). Accordingly, considering the evidence

in the light most favorable to the verdict, a rational trier of fact could have found Swims

possessed a usable quantity of marijuana as charged in the indictment beyond a reasonable

doubt. We overrule Swims’s first issue.

                                 Law of the Parties Instruction

       In his second issue, Swims argues the trial court erroneously instructed the jury on the

law of parties. The State responds Swims was not harmed by the inclusion of the instruction

because the evidence was sufficient to support his conviction individually. We agree.

       The Texas Court of Criminal Appeals has held, “Even where proper objection is made at

trial, we have held that where, as in the instant case, the evidence clearly supports a defendant’s

guilt as the primary actor, error in the charging on the law of parties is harmless.” Cathey v.

State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (citing Black v. State, 723 S.W.2d 674, 675

(Tex. Crim. App. 1986)); see also Davis v. State, No. 05-14-00378-CR, 2015 WL 1542211, at *5

(Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op., not designated for designation). As

detailed above, the evidence established Swims’s guilt as the primary actor. Thus, Swims cannot

establish egregious harm, as is required because Swims failed to object on this basis at trial. See

Cathey, 992 S.W.2d at 466 (party must show egregious harm when he fails to object to charge).

We overrule Swims’s second issue.


                                               –9–
                                      Admission of Evidence

       In his remaining four issues, Swims argues the trial court abused its discretion by

admitting (1) marijuana without proving the exhibits were in fact marijuana, (2) cell phone

photographs, (3) an email, and (4) testimony from a Mega Bus employee about drug trafficking.

       We review a trial court’s ruling to admit evidence under an abuse of discretion standard.

Hull v. State, 172 S.W.3d 186, 189 (Tex. App.—Dallas 2005, pet. ref’d). We reverse only when

the trial court’s decision was so clearly wrong as to lie outside the zone of reasonable

disagreement. Id.

       We first address whether the trial court erred by admitting suspected marijuana without

proving the exhibits were in fact marijuana. While Swims recognizes expert testimony is not

necessary and an officer’s testimony may be sufficient to identify marijuana, Swims argues

Detective Guerra failed to specifically authenticate State’s Exhibits 41-44. Further, he argues

Nathaniel Stevens, a senior forensic scientist with Integrated Forensic Laboratories, did not

authenticate the marijuana because he did not analyze the contents of State’s Exhibits 41-44.

Swims objected because Stevens did not test the substance, and “There’s no weight, no

analysis.” The State responds the same evidence was admitted elsewhere without objection;

therefore, error, if any, was harmless.

       It is well-established “erroneously admitted evidence will not result in reversal when

other such evidence was received without objection, either before or after the complained-of

ruling.” Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010); see also Estrada v. State,

313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010). In other words, error in the admission of

evidence may be rendered harmless when substantially similar evidence is admitted elsewhere

without objection. See Rivon v. State, No. 05-10-01417-CR, 2012 WL 1130274, at *1 (Tex.

App.—Dallas Apr. 5, 2012, pet. ref’d) (not designated for publication).


                                              –10–
         Here, error, if any, was harmless. Without objection, Officer Martinez testified his K-9

partner Rocco alerted on a blue suitcase, a black bag, and the black duffel bag. He testified they

“opened all three bags that he went to, and all of them had the package of narcotics, the evidence

that’s here before you.”     Officer Heymes also testified that after Rocco positively hit on the

bags, they opened them and found marijuana. He further testified that after they completed the

inventory of all the passengers’ luggage, they found two more unclaimed bags that contained

marijuana. Thus, Officer Heymes testified three suitcases and two bags containing marijuana

were transported to the police property room for booking by narcotics detectives. Swims never

objected to the officers’ testimony identifying the contents of the bags as marijuana. In light of

the unobjected-to testimony from the officers, we conclude error, if any, was harmless. Coble,

330 S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29. Accordingly, we overrule Swims’s third

issue.

         In his fourth issue, Swims argues the trial court erred by admitting irrelevant cell phone

photographs.     The State responds his argument on appeal does not comport with his trial

objection; therefore, he presents nothing for review. Alternatively, the State argues he failed to

show harm.

         During trial, the State offered, and the trial court admitted, Swims’s cell phone. The cell

phone was found in Swims’s possession when he was taken into custody. The screen of the

phone was cracked, but officers were able to download the contents of the phone, which included

video footage and pictures of Swims on the bus. Officers suspected Swims broke the phone

while on the bus.

         The State offered the contents of the phone as State’s Exhibit 38. Swims objected, “Your

Honor, the relevancy of pictures of the defendant on a cell phone as to the - - this case.” The




                                                –11–
State argued the pictures placed Swims on the bus “possibly under suspicious circumstances

breaking the phone just before he was detained.” The court overruled the objection.

       On appeal, Swims argues the admission of forty-three photographs from January and

February of 2013 and sixteen photographs from March 1, 2013 to March 4, 2013 are irrelevant

because they do not place him on the bus on the day of the incident, show him with any of the

luggage seized, or connect him to any marijuana. At trial, Swims did not object to any specific

photos or the lack of relevance based upon the dates the photos were taken. Further, he did not

argue the photos were irrelevant because the pictures did not show him in possession of any

luggage or marijuana. Accordingly, Swims failed to show how the admission of the photographs

caused harm. Thus, error, if any, was harmless. See TEX. R. APP. P. 44.2(b). We overrule

Swims’s fourth issue.

       In his fifth issue, Swims argues the trial court abused its discretion by overruling his

relevancy objection and admitting an email sent from Detective Guerra to the State listing the

weight and the approximate street value of marijuana in each bag. The State responds the same

evidence came in elsewhere without objection. We agree.

       Officer Martinez testified and confirmed, without objection, the amount of marijuana in

each bag. Detective Guerra testified to the amount and approximate street value of bags 1, 4, and

5. Detective Guerra also testified the approximate street value of all the marijuana recovered

totaled $48,000. In light of the unobjected-to testimony from these witnesses, we conclude error,

if any, was harmless. Coble, 330 S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29 (noting any

error was harmless in light of “very similar evidence” admitted without objection). Accordingly,

we overrule Swims’s fifth issue.

       In his sixth issue, Swims argues the trial court abused its discretion by allowing Simpson

to testify about drug trafficking. He argues Simpson was not qualified as an expert to testify

                                              –12–
about the subject, and the testimony was irrelevant because the State charged him with

possession of marijuana and not delivery of marijuana. In his brief, he argues “any evidence

about drug trafficking was not relevant to any fact of consequence in this case.” The State

responds Swims failed to object to additional drug trafficking testimony from Simpson. We

agree.

         During the State’s direct examination of Simpson, the State asked how it was apparent

that people were working in groups to bring drugs through the bus route. Simpson answered,

“People coming from different - - other different states bringing all kinds of drugs, trafficking

through some of the routes.” Swims then objected because Simpson was not qualified to answer

questions about groups trafficking narcotics through the country. The trial court overruled the

objection.

         Simpson testified later, without objection, to how groups sometimes use “watch outs” to

make sure the baggage ends up in the right location. He also explained, without objection, the

routes generally used by traffickers. He said they travelled from Memphis, to Houston or San

Antonio, through Dallas, and back to Memphis. On cross-examination, defense counsel asked

Simpson if he saw Swims or anyone traveling with him acting as a lookout or acting suspiciously

“because you described earlier people were on the lookout, these groups distributing drugs . . . .”

         In addition to Simpson’s unobjected-to testimony about drug trafficking, the jury heard

testimony from Detective Guerra. He explained the DFW area was a key location for drug

couriers, and the drugs were typically transported in buses.

         Because an error in the admission of evidence is cured if the same evidence comes in

elsewhere without objection, the general rule is that the party wishing to complain must continue

to object each time the evidence is offered. Moyer v. State, 948 S.W.2d 525, 530 (Tex. App.—

Fort Worth 1997, pet. ref’d). Here, Swims did not object when the State continued to ask

                                               –13–
Simpson questions about drug trafficking. Further, Swims asked Simpson about drug trafficking

on cross-examination. See Allen v. State, 761 S.W.2d 384, 387 (Tex. App.—Houston [14th

Dist.] 1988, pet. ref’d) (noting that when the accused offers the same testimony as that objected

to, the accused is not in a position to complain on appeal). He also failed to object to Detective

Guerra’s testimony about drug trafficking. Accordingly, error, if any, was harmless. Coble, 330

S.W.3d at 282; Estrada, 313 S.W.3d at 302 n.29 (noting any error was harmless in light of “very

similar evidence” admitted without objection). We overrule Swims’s sixth issue.

                                          Conclusion

       Having overruled Swims’s issues, we affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47                                 /David L. Bridges/
131411F.U05                                        DAVID L. BRIDGES
                                                   JUSTICE




                                              –14–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TRACY SWIMS, JR, Appellant                         On Appeal from the 195th Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-01411-CR        V.                       Trial Court Cause No. F-1330583-N.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 13, 2015.




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