                        NUMBER 13-18-00091-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ZACHARY RYAN SIMONS,                                                   Appellant,

                                         v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 130th District Court
                      of Matagorda County, Texas.


                        MEMORANDUM OPINION

           Before Justices Contreras, Longoria, and Hinojosa
              Memorandum Opinion by Justice Contreras

      Appellant Zachary Ryan Simons appeals from a judgment of conviction for

possession of between one and four grams of methamphetamine, a controlled substance,

with intent to deliver, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(6), 481.112 (West, Westlaw through 2017 1st C.S.). By one issue, appellant
argues the trial court erred when it overruled his objection to part of a witness’s testimony.

We affirm.

                                    I.   BACKGROUND

       Appellant was arrested during a traffic stop for an outstanding warrant. In the

vehicle, police found methamphetamine, plastic bags of different sizes, and a digital

scale. On May 23, 2017, appellant was indicted for possession of a controlled substance

with intent to deliver. See id. §§ 481.102(6), 481.112. The State also alleged a prior

felony conviction for the purpose of enhancing appellant’s punishment to that of a first-

degree felony. See TEX. PENAL CODE ANN. § 12.42(b) (West, Westlaw through 2017 1st

C.S.); see also id. § 12.32 (West, Westlaw through 2017 1st C.S.) (providing that a first-

degree felony is punishable by imprisonment for a term between five to ninety-nine years

and a fine not to exceed $10,000). He pleaded not guilty and proceeded to trial.

       At trial, appellant admitted that he possessed the controlled substance, but he

disputed the “intent to deliver” element. Tyler Miles, a sergeant with the Matagorda

County Sheriff’s Office, testified for the State. Miles explained that he is assigned to the

narcotics task force in Matagorda County and testified about his familiarity with the sale

and use of narcotics in the area. As the State questioned Miles on redirect regarding his

experience with controlled purchases, the following exchange occurred:

       [State]:                     Sergeant Miles, so I don’t leave something left
                                    open, when you’re making those purchases,
                                    when you’re purchasing the controlled
                                    substance and you tell someone that, hey, we
                                    want to purchase whatever amount, a gram,
                                    eight-ball, whatever it is, when you’re
                                    undercover what you’re saying that you want to
                                    purchase, is it your experience then that the
                                    person selling that controlled substance to you



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                                     anticipates that you’re going to weigh it to make
                                     sure you bought the right amount?

       [Defense Counsel]:            Objection, calls for speculation.

       [The Court]:                  Overruled.

       [Miles]:                      Yes, sir.

       [State]:                      So would you typically be walking in with digital
                                     scales and say I want to weigh that before I buy
                                     it?

       [Miles]:                      I’ve never taken a scale in and weighed it.
                                     They’ve always—the person selling it weighs it.

       [State]:                      Okay. That’s—maybe I was—maybe I was
                                     confusing in my question. My question is: Does
                                     the purchaser—is the purchaser, you, expected
                                     to be weighing with your scales the amount that
                                     the dealer is selling to you?

       [Miles]:                      No, sir.

       The jury found appellant guilty of the offense as charged, and appellant pleaded

true as to the enhancement allegation. The jury found the enhancement allegation to be

true, sentenced appellant to life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice, and assessed a $5,000 fine. See id. §§ 12.32, 12.42(b).

This appeal followed.

                                      II.   DISCUSSION

A.     Standard of Review and Applicable Law

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

discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v.

State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see Ellison v. State, 201 S.W.3d 714,

723 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts arbitrarily or without

reference to guiding rules or principles. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim.


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App. 2014). We will not reverse the trial court’s ruling unless the ruling falls outside the

zone of reasonable disagreement. Torres, 71 S.W.3d at 760.

       If we find error regarding the admissibility of evidence, we will disregard the error

as harmless if it was non-constitutional and did not affect appellant’s substantial rights.

See TEX. R. APP. P. 44.2(a), (b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.

2001). An erroneous evidentiary ruling is generally non-constitutional error. See Potier

v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (en banc) (“Erroneous evidentiary

rulings rarely rise to the level of denying the fundamental constitutional rights to present

a meaningful defense.”); see also Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim.

App. 2007); cf. Jones v. State, 119 S.W.3d 766, 776–77 (Tex. Crim. App. 2003) (en banc)

(noting that the admission of defendant’s confession was evidentiary error of

constitutional nature because the confession was obtained without Miranda warnings in

violation of the Fifth Amendment). An appellant’s “substantial rights are not affected by

the erroneous admission of evidence ‘if the appellate court, after examining the record as

a whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998)); see TEX. R. APP. P. 44.2.

B.     Analysis

       Appellant first argues that the trial court erred when it overruled his objection to

Sergeant Miles’s testimony because the testimony was speculative.             The alleged

evidentiary error appellant complains of is non-constitutional. See Jones, 119 S.W.3d at

776–77; Potier, 68 S.W.3d at 663; see also TEX. R. APP. P. 44.2. We will assume, without



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deciding, that the trial court erred in overruling appellant’s objection and proceed to

analyze whether the alleged error had a substantial and injurious effect in determining the

jury’s verdict. See Casey, 215 S.W.3d at 885.

       Here, appellant did not dispute the physical evidence obtained during his arrest,

which included a digital scale, plastic bags of different sizes, and methamphetamine, and

he admitted to being in possession of the controlled substance; however, appellant

disputed the “intent to deliver” element. Setting aside the statement objected to by

appellant, the rest of Sergeant Miles’s testimony extensively illustrated why the items in

appellant’s possession were indicative of the “intent to deliver” element. Miles explained,

without objection, that methamphetamine is typically sold in plastic bags of different sizes

consistent with the ones found on appellant’s possession and that drug dealers typically

use digital scales to weigh the drugs they sell. Miles testified, in part, as follows:

       [State]:              Okay. Now, in the preparation of these controlled
                             substances for delivery—I mean, you’ve talked about
                             different weight measurements. You talked about
                             grams. You talked about quarter ounces. You’ve
                             talked about eighth of an ounce. How is it then that
                             someone who is preparing these drugs for delivery
                             knows how much that is?

       [Sergeant Miles]:     Well, typically, when we find the narcotics on
                             somebody who has been distributing them, they have
                             scales that they have with them. They usually—usually
                             digital scales. Sometimes we’ve found weighted
                             scales, but they measure them before they sell it.

       [State]:              So they can—so they have digital scales that will
                             measure those amounts and perhaps even convert
                             grams to ounces so they can sell whatever amount is
                             being requested?

       [Sergeant Miles]:     Yes, sir. Yes, sir.

       ...


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       [State]:              When you have arrested an end user, who is nothing
                             more than an addict, do you find them with hundreds
                             of Ziploc bags of various sizes that are consistent with
                             the packaging and resale of controlled substances?

       [Sergeant Miles]:     No, sir.

       [State]:              Do you find them with digital scales capable of
                             measuring .1 gram or .1 ounce, which is typically used
                             for the packaging and disturbing of the thing they use?

       [Sergeant Miles]:     No, sir.

Appellant did not offer evidence or testimony to rebut any of the testimony provided by

Miles, and the complained-of statement was largely cumulative of the other evidence

presented by the State to show the “intent to deliver” element of the offense. Further, the

question appellant objected to—which Miles answered in the affirmative—asked whether

a person who purchased drugs would weigh the drugs after the purchase. Miles’s answer,

arguably, could have casted doubt on whether his possession of a digital scale really

indicated an intent to sell. After examining the entire record, we have fair assurance that

the statement appellant objected to did not have a substantial and injurious effect or

influence the determination of the jury’s verdict, and we conclude that any error was

harmless. See TEX. R. APP. P. 44.2; Casey, 215 S.W.3d at 885; Motilla, 78 S.W.3d 359–

60.

       Finally, appellant also argues that Miles’s testimony was an improper opinion on

an ultimate issue of fact; however, appellant did not object on this ground at the trial court.

To preserve an issue for appeal, a party must timely object, stating the specific legal

basis. TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 121, 127 (Tex.

Crim. App. 1996) (en banc). An objection stating one legal theory may not be used to

support a different legal theory on appeal. Camacho v. State, 864 S.W.2d 524, 533 (Tex.


                                              6
Crim. App. 1993) (en banc); see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002) (“[T]he point of error on appeal must comport with the objection made at trial.”).

Here, appellant objected on the basis that Miles’s testimony was speculative, not that it

addressed an ultimate issue of fact. Accordingly, we conclude that this argument was not

preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1); Camacho, 864 S.W.2d at

533.

       We overrule appellant’s sole issue.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                             DORI CONTRERAS
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of August, 2018.




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