                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00191-CR

BRIAN LEROY GEORGE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F41845


                          MEMORANDUM OPINION


      A jury found Appellant Brian George guilty on three counts: (1) possession, with

intent to deliver, of a controlled substance (cocaine) in an amount of four grams or more

but less than 200 grams; (2) possession of a controlled substance (methamphetamine) in

an amount of four grams or more but less than 200 grams; and (3) possession of

marijuana in an amount of four ounces or more but not more than five pounds. George

pled guilty to Count Three. The trial court sentenced George to prison for fifty, twenty

and two years, respectively, and fined him $10,000 on count one. Raising three issues,
George appeals. We will affirm.

          George, his then-girlfriend Laura Collier, and Collier’s two teenage daughters

were driving through Johnson County in Collier’s vehicle on their way to Missouri after

a trip to San Antonio and South Padre Island. George, who did not have a driver’s

license and had sat in the front passenger seat for most of the trip, was driving for

Collier, who had started feeling ill. An Alvarado police officer pulled over George for

speeding (82 mph in a 65 mph zone). When the officer learned that George did not

have a driver’s license, he asked George to get out of the vehicle. The officer smelled

marijuana odor on George and learned from George that Collier owned the vehicle.

The officer approached Collier and learned from her that there might be

methamphetamine as well as needles in a bag on the passenger-side floor board and

that the needles had been used to inject cocaine. Another officer arrived, and a search

yielded 10.27 grams of cocaine and 1.37 grams of methamphetamine that were

discovered in containers on the passenger side. The officers discovered approximately

132 grams of marijuana inside a duffel bag that contained men’s clothing. Also found

were drug paraphernalia, three marijuana joints, and approximately $1,000 in cash in a

wallet.

          In his first issue, George complains of the trial court’s admission of a DVD video

and exclusion of letters that Collier had sent to George. We review a trial court’s

evidentiary rulings for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.

Crim. App. 2005). “A trial court abuses its discretion when its decision is so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.”

George v. State                                                                       Page 2
Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).

        George claims that the DVD should have been excluded because it was not

authenticated. An item is authenticated by evidence “sufficient to support a finding

that the matter in question is what its proponent claims.”          TEX. R. EVID. 901(a).

Examples of authentication include testimony of a witness with knowledge that a

matter is what it is claimed to be and opinion testimony identifying a recorded voice.

Id. 902(b)(1), (5).

        The video depicts (1) George sleeping in his mobile home, (2) a coffee table or its

drawer with a spoon containing a white powdery substance and a plastic baggie with

Batman emblems, and (3) a background conversation that included George’s voice. The

record shows that the DVD was found in George’s duffel bag retrieved from the

searched vehicle. Collier was familiar with the inside of George’s home (George said

she was living with him) and identified George’s voice and recognized the coffee-table

drawer as the one in George’s home. Because Collier had personal knowledge of the

things depicted in the video, she could authenticate them. She is not required to have

been present when the video was made to be able to authenticate it. See, e.g., Skidmore v.

State, 838 S.W.2d 748, 753 (Tex. App.—Texarkana 1992, pet. ref’d). The trial court did

not abuse its discretion in finding that the video was authenticated by Collier.

        George also claims that the DVD video should have been excluded because its

prejudicial effect outweighed its probative value.

              In its seminal decision in Montgomery v. State, the Court of Criminal
        Appeals identified four non-exclusive factors to be considered in
        determining whether evidence should be excluded under Rule 403. Those

George v. State                                                                       Page 3
        factors were: (1) the probative value of the evidence; (2) the potential to
        impress the jury in some irrational, yet indelible, way; (3) the time needed
        to develop the evidence; and, (4) the proponent’s need for the evidence.

              More recently, the Court has looked to the language of Rule 403
        and restated the pertinent factors.

           [A] trial court, when undertaking a Rule 403 analysis, must balance
           (1) the inherent probative force of the proffered item of evidence
           along with (2) the proponent’s need for that evidence against (3) any
           tendency of the evidence to suggest decision on an improper basis,
           (4) any tendency of the evidence to confuse or distract the jury from
           the main issues, (5) any tendency of the evidence to be given undue
           weight by a jury that has not been equipped to evaluate the
           probative force of the evidence, and (6) the likelihood that
           presentation of the evidence will consume an inordinate amount of
           time or merely repeat evidence already admitted. Of course, these
           factors may well blend together in practice.

        Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
        (footnotes omitted).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote and

citations omitted).

        Probative force of the evidence: The State asserts that the video is probative because

it links George with narcotics paraphernalia. We agree. This factor weighs in favor of

admissibility.

        Proponent’s need for that evidence: The trial court could have reasonably concluded

that the State had a need for the video because: (1) George did not own the vehicle and

the drugs were found under the front passenger seat where Collier was sitting at the

time of the stop; (2) Collier was an accomplice witness who said the drugs were

George’s, and George testified that the drugs were Collier’s; and (3) items in the video



George v. State                                                                         Page 4
(a spoon with a white powdery substance and a baggie with Batman emblems) were

similar to items found in the vehicle. This factor weighs in favor of admissibility.

        Tendency of evidence to suggest a decision on an improper basis: Collier could not

identify the white substance, and George’s counsel adequately cross-examined her

about the video.     Thus, the video had limited potential to impress the jury in an

irrational way. This factor does not weigh in favor of exclusion of the evidence.

        Jury confusion or distraction, undue weight, and amount of time or repetition: These

factors concern whether presentation of the evidence consumed an inordinate amount

of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or

to cause the jury to place undue weight on its probative value. See Gigliobianco, 210

S.W.3d at 641-42; Newton, 301 S.W.3d at 320. The video lasts only 79 seconds. Collier’s

testimony about the video was approximately twenty hard-copy pages. The video was

not repetitious, and we do not believe that it could cause jury confusion or distraction

or cause the jury to give it undue weight. All of these factors favor admission.

        “Rule 403 ‘envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Newton, 301 S.W.3d at 322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568

(Tex. Crim. App. 2009). We cannot say that there is a “clear disparity” between the

danger of unfair prejudice posed by the video and its probative value. Thus, the trial

court did not abuse its discretion by overruling George’s Rule 403 objection.

        As for George’s complaint about the trial court’s exclusion of letters that Collier

wrote to George, George asserts that those letters would have impeached Collier’s

George v. State                                                                        Page 5
credibility. George, however, fails to explain how the letters would have impeached

Collier’s credibility, and on their face the letters do not evince relevance or

impeachment value.      Nor does George offer a legal basis for their admissibility.

Accordingly, the trial court did not abuse its discretion in excluding the letters. We

overrule issue one.

        In George’s second issue, he asserts that the accomplice-witness testimony was

not sufficiently corroborated. “A conviction 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 (Vernon 2005).

“This accomplice witness rule creates a statutorily imposed 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. 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.’” Malone v. State,

253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49 S.W.3d 356, 361

(Tex. Crim. App. 2001)). “There is no set amount of non-accomplice corroboration

evidence that is required for sufficiency purposes; ‘[e]ach case must be judged on its

own facts.’” Id. (quoting Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)). “While

the accused’s mere presence in the company of the accomplice before, during, and after

George v. State                                                                     Page 6
the commission of the offense is insufficient by itself to corroborate accomplice

testimony, evidence of such presence, coupled with other suspicious circumstances,

may tend to connect the accused to the offense.” Dowthitt v. State, 931 S.W.2d 244, 249

(Tex. Crim. App. 1996). “Even apparently insignificant incriminating circumstances

may sometimes afford satisfactory evidence of corroboration.” Id.

        George argues that his mere presence in the vehicle, which Collier owned, is

insufficient to show his possession of the drugs, which were not found on his person.

But after eliminating Collier’s testimony, we find that the following evidence

sufficiently corroborated her testimony and tended to connect George to the contraband

under Counts One and Two:

        The officer noted a marijuana odor on George.

        George told the officer during the search that the drugs were all his and that the
        officer had found it all.

        George admitted to prior cocaine and methamphetamine use.

        George admitted to once owning a “Looney Tunes” tin container, and such a
        container was found under the front passenger seat. George said the he sat in the
        front passenger seat for most of the trip, and changed places with Collier to drive
        in Waco. Inside the container were 9.3 grams of cocaine and 1.37 grams of
        methamphetamine, two needles, one small spoon, four paper clips, and a small
        plastic baggie covered with “Batman” emblems.

        A duffel bag containing men’s clothing was found in the rear of the vehicle.
        George was the only male in the vehicle. Inside the duffel bag’s pocket were six
        elastic bands, five unused needles, and a used needle. Also inside the bag were a
        black camera case and a large bag of marijuana. Inside the camera case were a
        small green plastic baggie with white powdery residue, a large clear plastic
        baggie, and a DVD.

        The DVD depicts three scenes: (1) George sleeping in his mobile home, (2) a
        coffee table or its drawer with a spoon containing a white powdery substance

George v. State                                                                      Page 7
        and a plastic baggie with Batman emblems, and (3) a background conversation
        that included George’s voice.

        Also found were a Harley-Davidson wallet with about $1,000 in cash and
        George’s business card with notes on the back of it. A narcotics task force officer
        testified that the notes were “dope notes” and indicated that the writer was
        dealing drugs. The officer also said that, given the large amount of drugs, the
        variety of drugs, the cash, and the trip to South Texas (where drugs are cheaper
        to buy), someone in the vehicle was a drug dealer.

        In George’s letters to Collier during their pretrial incarceration, he asked Collier
        to claim the drugs, stated that he was “done shooting” and had no cravings since
        he was arrested, and suggested that they use the vacation as an explanation for
        the large amount of cash.

        We overrule George’s second issue.

        In his third issue, George asserts that the evidence is factually insufficient to

prove possession. In a factual sufficiency review, we ask whether a neutral review of all

the evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7. The appellate court “does not indulge in inferences or confine its view to

evidence favoring one side of the case. Rather, it looks at all the evidence on both sides

and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers

and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L.

REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate


George v. State                                                                       Page 8
court, although to a very limited degree, to act as the so-called “thirteenth juror” to

review the factfinder’s weighing of the evidence and disagree with the factfinder’s

determination. Watson, 204 S.W.3d at 416-17.

        George argues that the evidence is insufficient to link him to the contraband. The

State was required to prove beyond a reasonable doubt that the accused intentionally or

knowingly possessed the controlled substances, and to do so, the State had to establish:

(1) the accused exercised control, management, or care over the substance, and (2) the

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

405 (Tex. Crim. App. 2005). Whether the evidence is direct or circumstantial, “it must

establish, to the requisite level of confidence, that the accused’s connection with the

drug was more than just fortuitous. . . .” Id. at 405-06 (quoting Brown v. State, 911

S.W.2d 744, 747 (Tex. Crim. App. 1995)).

        The rule is designed to protect the innocent bystander from conviction based

solely upon his fortuitous proximity to someone else’s drugs. Poindexter, 153 S.W.3d at

406. The rule simply restates the commonsense notion that a person, such as a father,

son, spouse, roommate, or friend, may jointly possess property like a house but not

necessarily jointly possess the contraband found in that house. Id. Thus, “[w]hen the

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.” Id. (quoting Deshong v. State, 625



George v. State                                                                     Page 9
S.W.2d 327, 329 (Tex. Crim. App. 1981)).1

        Some circumstances that may link a defendant to the controlled substance are:

(1) the defendant’s presence when the search was executed; (2) the contraband was in

plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant

was under the influence of contraband; (5) the defendant’s possession of other

contraband when arrested; (6) incriminating statements by the defendant when

arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9)

there was an odor of the contraband; (10) the presence of other contraband or drug

paraphernalia not included in the charge; (11) the defendant’s ownership or right of

possession of the place where the controlled substance was found; (12) the drugs were

found in an enclosed place; (13) there was a significant amount of drugs; and (14) the

defendant possessed weapons or large amounts of cash. Stubblefield v. State, 79 S.W.3d

171, 174 (Tex. App.—Texarkana 2002, pet. ref’d); see also Olivarez v. State, 171 S.W.3d

283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Lassaint v. State, 79 S.W.3d 736,

740-41 (Tex. App.—Corpus Christi 2002, no pet.); De La Garza v. State, 898 S.W.2d 376,

379 (Tex. App.—San Antonio 1995, no pet.). The number of links present is not as

important as the degree to which they tend to link the defendant to the controlled

substance. Stubblefield, 79 S.W.3d at 174; Williams v. State, 906 S.W.2d 58, 65 (Tex.

App.—Tyler 1995, pet. ref’d).


1 Previously, this was referred to as the “affirmative links” rule. See Poindexter v. State, 153 S.W.3d 402,
406 (Tex. Crim. App. 2005). However, the Court of Criminal Appeals has cautioned against use of the
term “affirmative links” as suggesting “an independent test of legal sufficiency” and has chosen instead
to use only the term “‘link’ so that it is clear that evidence of drug possession is judged by the same
standard as all other evidence.” Evans v. State, 202 S.W.3d 158, 162 n.9 (Tex. Crim. App. 2006).

George v. State                                                                                     Page 10
        The evidence shows that Collier invited George to accompany her and her

daughters to South Texas. They went in Collier’s vehicle, and George had full access to

it. The cocaine and methamphetamine were discovered in a Looney Tunes container

under the front passenger seat, which George occupied for most of the trip. When

George was driving, he still had access to the container.

        The arresting officer noticed a marijuana odor on George, who admitted he had

smoked marijuana within an hour of being stopped. A large amount of marijuana was

in George’s duffel bag. Also in his duffel bag were unused hypodermic needles, which

are commonly associated with injecting methamphetamine and cocaine, and a baggie

containing a white powdery residue. During the search of the vehicle, George told the

officer that all of the drugs were his, though at trial George said he meant that all the

marijuana was his. And, when the officer asked if he had found all the drugs, George

told him that he had, which indicates that George knew where they were.

        Collier testified that all the drugs were George’s and that he had brought them

on the trip initially without her knowledge. George used the methamphetamine and

she used the cocaine on the trip, and George had previously used methamphetamine in

Missouri. She also said that she had given George the Looney Tunes container in which

the drugs were found a few months before the trip. George testified that the marijuana

was his but that the methamphetamine and cocaine were not his and must have

belonged to Collier or her daughters.

        Collier said that the DVD showed video inside of George’s home that included a

baggie with Batman emblems similar to those found in the vehicle. The video also

George v. State                                                                   Page 11
showed a spoon with a white powdery substance. Drug notes were found on the back

of one of George’s business cards, and a letter from George to Collier during their

pretrial incarceration asked her to claim possession of the drugs. The letter also stated

that George was “done shooting” and was not having cravings.

         By finding George guilty, the jury obviously disbelieved George, and the record

in this case warrants our deference to the jury’s credibility determination. As the sole

judge of the weight and credibility of the evidence, the jury bore the burden of

accepting or rejecting George’s version. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). Therefore, considering all of the evidence in a neutral light, we find

that the evidence is factually sufficient to support the jury’s guilty findings on Counts

One and Two. The proof of guilt is not so weak nor the conflicting evidence so strong

as to render the jury’s verdict clearly wrong and manifestly unjust. We overrule issue

three.

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



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 31, 2010
Do not publish
[CRPM]




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