                                    NUMBER 13-07-00722-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


PAUL DE LA CRUZ,                                                                                Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                              Appellee.


                         On appeal from the 117th District Court
                               of Nueces County, Texas.


                                MEMORANDUM OPINION

                    Before Justices Yañez, Rodriguez, and Garza
                      Memorandum Opinion by Justice Yañez


       A jury convicted appellant, Paul De la Cruz, of possession of more than four grams

but less than 400 grams of cocaine with intent to deliver, a first degree felony.1 Appellant

       1
           See T EX . H EALTH & S AFETY C OD E A N N . § 481.112(a), (d) (Vernon Supp. 2009).
was sentenced to twenty years' confinement. By five issues, appellant contends: (1) the

evidence is legally insufficient to establish an affirmative link to the cocaine; (2-4) the trial

court erred by admitting evidence of extraneous acts; and (5) the trial court erred in

denying appellant's motion to suppress.2 We affirm as modified.

                                                I. BACKGROUND

        On October 29, 2006, police dispatch received a 911 call from an unknown person

stating that there was a fight at "1707 Peabody Street," in Corpus Christi, Texas, and that

someone was injured. Officer Ross Murray arrived at the residence, identified himself, and

knocked on the door. When no one responded, Officer Murray entered the residence

through an unlocked door leading into a bedroom. Officer Murray observed in plain view,

a tray containing crack cocaine on top of a stereo, an identification card belonging to

appellant on top of a speaker, and a scale on a desk next to the stereo in the bedroom.3

In an open drawer, Officer Murray saw a handgun along with another identification card

belonging to appellant.             Officer Murray also discovered marihuana "blunts" on the

windowsill next to a bed.4 In the kitchen of the residence, Officer Murray found appellant's

brother, Jesse De la Cruz, with an injured ankle. In "one of the main living rooms," Officer

Murray found a scale in plain view.5 Officer Murray also saw pictures of appellant and

Jesse, which appeared to have been taken at the Peabody residence. Appellant was not


        2
            W e have regrouped and renum bered appellant's five issues.

        3
          Officer Joseph Christian testified that after testing the substance found on the tray, "[i]t cam e up as
cocaine base, also known as crack cocaine." According to Officer Christian, the cocaine weighed 34 gram s.

        4
            Officer Jerry Neal explained that a "blunt" "refers to a m arijuana cigarette, cigar rolled up."

        5
            Pictures of the scale were adm itted through Officer Murray's testim ony.

                                                         2
present at the residence when Officer Murray discovered the drugs.

        Appellant was indicted jointly with his brother, Jesse, for possession of cocaine with

the intent to deliver. The indictment further alleged that appellant used or exhibited a

firearm during the commission of the offense. Pursuant to a plea agreement with the

State, Jesse pleaded guilty to possession of four grams or more but less than 200 grams

of cocaine.6

        The jury found appellant guilty of possession of cocaine with intent to deliver, but

acquitted appellant of using or exhibiting a deadly weapon during the commission of a

crime. The jury assessed punishment at twenty years' confinement. This appeal ensued.

                                             II. THE EVIDENCE

        At trial, the State offered the testimony of Officer Murray, Officer William Livingston,

Officer Jerry Neal, Officer Joseph Christian, Lydia De la Cruz (appellant's sister),

Investigator Jay Worthington, and Officer Jeff Mills, among others. The trial court admitted

into evidence taped conversations at the Nueces County Jail between appellant and his

mother and between Lydia and Jesse. The State alleged that these conversations

provided evidence of appellant's intent to deliver cocaine.

        Officer Neal, of the Corpus Christi Police Department, testified that although he

"happened to show up" at the Peabody residence on October 29, 2006, it was not his case

and he did not provide any assistance to the other officers on that case. However,

according to Officer Neal, in August 2003, he had a previous encounter with appellant at


        6
         Although appellant alleges in his brief that Jesse agreed to testify against appellant pursuant to the
plea agreem ent, there is nothing in the record showing this. Furtherm ore, Jesse did not testify at appellant's
trial.

                                                       3
the Peabody residence. Officer Neal stated that he was dispatched to the Peabody

residence because someone reported that shots had been fired and that when he arrived,

he saw a "subject run from the driveway into the side door of the residence." Officer Neal

testified that he "gave chase, fresh pursuit, kicked the door open and [appellant] was there

in that room" standing next to the door. Officer Neal saw a "sawed-off" shotgun and a

pistol on the bed and a tray with "some crack cocaine on it."7 Officer Neal stated that

appellant's sister, who was pregnant at the time, came into the room and began crying.8

According to Officer Neal, appellant then told him, "That it was his room, his stuff." Officer

Neal arrested appellant and collected the evidence.9

        Through Officer Neal's testimony, the trial court admitted State's exhibits 17, 9, 853,

852, 851, 850, 855, 14, 12, 860, 11, 15, and 8, which were pictures taken of appellant's

bedroom in August of 2003. Officer Neal stated that the pictures showed: (1) a VCR that

was attached to a camera outside of the residence and some shotgun shells next to the

VCR (exhibit 851); (2) a camera outside the residence pointed toward the home (exhibit

852); (3) a camera inside the bedroom pointed toward the driveway (exhibit 8); (4) a wide

shot of the residence showing where the camera was pointed (exhibit 14); (5) "[a] stereo

with a speaker on the side and a small amount of crack cocaine in between" (exhibit 17);

and (6) a shotgun and pistol in Officer Neal's trunk that he had recovered from appellant's



        7
            Officer Jeff Mills testified that the cocaine found at that tim e by Officer Neal weighed .88 gram s.

        8
          Lydia, appellant's only sister, testified that she has only one child who was born in 2000 and that she
was not pregnant in 2003.

        9
         On cross-exam ination, Officer Neal stated that the charges against appellant stem m ing from the
August 2003 incident were dropped by the district attorney's office.

                                                         4
room (exhibit 12).10 Officer Neal stated that he knew from personal experience that

"[appellant] lives in that particular room that [he] was showing, or that's on the

photographs."

        Officer Livingston, also of the Corpus Christi Police Department, testified that he has

worked on over one hundred cases involving "drug houses."                             According to Officer

Livingston, some of the things that are indicative of a "drug house" include: (1) "stop and

go traffic," i.e., when several cars arrive at the residence in a short period of time, and the

occupants of the cars enter the residence for a few minutes and then leave; (2)

surveillance cameras; (3) "word on the street" that the residence is a "drug house"; (4) calls

or complaints from neighbors that there is a lot of traffic at the residence; (5) weapons in

the residence; (6) "the packaging and assorted materials used to . . . prepare [the]

narcotics," such as "miniature Ziplock" bags; (7) "paraphernalia" or items "associated with

the preparation of drugs or in drug trafficking"; (8) in cases of crack cocaine, items such

as baking soda, vinegar, or glass vessels used to prepare the "crack"; and (9) a large

amount of narcotics, "[u]sually anything over a gram."

        Officer Livingston testified that the amount of crack cocaine considered for personal

use is "called a rock," which usually weighs about .08 grams. Officer Livingston stated that

when the police discover "anything" over one or two rocks, the police begin investigating

whether the person in possession is selling the narcotics. According to Officer Livingston,

there are two types of sellers of narcotics, a street-level dealer who sells the drugs "on the

         10
            Officer Neal did not describe the other exhibits adm itted. The other pictures showed: (1) a close-up
picture of a VCR, sm all TV, and speakers (exhibit 9); (2) a close-up of a pistol (exhibit 853); (3) VCR "hook-up"
to the outside cam era (Exhibit 851); (4) a cam era pointed outside (exhibit 855); (5) a picture of a residence
(exhibit 860); and (6) a lighter and an unknown object on a windowsill (exhibit 11).

                                                        5
street" and would probably have "five, ten rocks on him" and the person supplying the

street seller, who would have either multiple grams or larger amounts over an ounce.11

Officer Livingston testified that a "rock" is .08 grams, and that a gram of crack cocaine can

be divided into seven doses or units. To determine how many doses can be created from

an ounce of crack cocaine, one would multiply seven (doses per gram) by twenty-eight,

which is the amount of grams in one ounce.12 According to Officer Livingston, the usual

unit of a rock of cocaine sells for twenty dollars, but that there is also a smaller quantity

referred to as "dime-size rocks" and larger amounts that are sold for fifty dollars.

        The State then asked Officer Livingston to review State's exhibits 203 and 9,

pictures taken at the Peabody residence on October 29, 2006.13 Officer Livingston testified

that exhibit 203 showed a tray containing a large "chunk" of crack cocaine that is part of

a "cookie," smaller pieces referred to as "dimes" and "twenties," and larger pieces called

"fifties." Officer Livingston stated that large amounts of narcotics indicate that someone

was probably selling the drugs. Officer Livingston described the item in State's exhibit 9

as a "Tec 9 pistol," which is, according to Officer Livingston, "used—it's liked by people

who are in the drug business, because of the way it looks." Officer Livingston then

reviewed several pictures taken when the August 2003 incident occurred, including State's


        11
          Officer Livingston stated, "Depending on the . . . the am ount that [the person has], then . . . we're
gonna consider them a higher level— level dealer. W hen you start getting over the ounces, then
that's— especially when it com es to crack cocaine, that's to m e an indication of a pretty sizable dealer."

        12
           Officer Livingston did not state the total am ount of doses in one ounce; however, based on our
calculation, the num ber of doses using his form ula is 196.

        13
           State's exhibit 203 was adm itted through Officer Murray's testim ony along with State's exhibit 18,
a picture of what appears to be a dining room , and State's exhibits 19, 20, and 21, pictures of an open drawer
with a weapon and one of appellant's identification cards.

                                                       6
exhibits 855 and 15. Officer Livingston stated that he believed State's exhibit 855 showed

a surveillance camera, which "tells [him] that—that that's probably a place being used to

traffic narcotics, because surveillance cameras are commonly used by narcotics traffickers

to protect their investment, their drugs, their money." Officer Livingston explained that

State's exhibit 15 showed a scale, which is "used to weigh out the narcotics."

       On cross-examination, Officer Livingston admitted that he did not know who lived

at the Peabody residence. Furthermore, he did not know that Jesse had presumably

"claimed ownership" of the drugs found at the Peabody residence, by stating "They [the

drugs] were mine." On redirect examination by the State, Officer Livingston identified

State's exhibit 601 as a picture of a Texas State Department of Public Safety identification

card issued to appellant showing his address as 1707 Peabody.14

       Lydia, appellant's sister, testified that she previously lived at the Peabody residence

with appellant, her mother, and Jesse. During direct examination,15 when asked by the

State if she remembered that after Jesse showed her some pictures, she told appellant

"that they had a picture of his I-Tec gun there; also that they had a picture of a plate with

a big cookie, with several dimes and twenties?," Lydia responded that she remembered

that conversation. Then the following colloquy occurred:

       [The State]: And you told [appellant] that there was a picture of his I-Tec
                    gun, also, a picture of his stereo, also a picture of some blunts
                    on his window sill, and also about that plate that had a picture
                    of a cookie, dimes and twenties.



       14
            The identification card was found by Officer Murray in October 2006.

       15
            The trial court allowed the State to treat Lydia as a hostile witness by asking leading questions.

                                                       7
        [Lydia]:          I did say that, but I didn't really mean—

        [The State]: Did you say that, ma'am?

        [Lydia]:          —it was his. It was just the way—

        [The State]: Ma'am, answer—

        [Lydia]:          it came out.

        [The State]: —my question.

                 ....

        [The State]: Did you?

        [Lydia]:          Yes, I did—

        [The State]: —say that?

        [Lydia]:          —say that.

On cross-examination, Lydia testified that Jesse showed her some pictures of drugs that

Jesse claimed belonged to appellant.

        The trial court admitted State's exhibits 1200 and 1201, transcripts of several

conversations between appellant and his mother, Linda, recorded while he was an inmate

at the Nueces County Jail awaiting trial. Javier Carrizales, the "Official Court Interpreter

for Nueces County," translated the conversations from Spanish to English, and the

prosecutor read excerpts from the transcripts into the record.16 In the first conversation,

appellant spoke to Linda about his bond and then asked, "[H]as Lu made any money, my

money?" Linda replied, "Uh, just 50." Appellant told Linda that "[t]here's supposed to

         16
            The trial court adm itted the actual recordings, m arked State's exhibits 201 and 202, through the
testim ony of Jay W orthington, an internal affairs investigator with the Nueces County Sheriff's Departm ent and
custodian of recorded phone calls. Although these tapes were played for the jury, the tapes were not
transcribed by the court reporter and are not included in the record.

                                                       8
be . . . 200," and that Linda should tell "Luis" not to "mess with the other one." Linda

informed appellant that she did not know whether Luis "[was] selling." The State then read

excerpts from the transcripts to the jury, including the following:

       [Appellant]: There's supposed to be like, um the one l already had already
                    there, it should be like 200. . . . So make sure it is 200 and the
                    other one, that's the one that he hasn't messed, tell him don't
                    mess with that one.

              ....

       [Linda]:      Okay. That way, so I can tell Luis that I need to give him more
                     money. I don't know how much Luis has or if he is selling, or
                     if he is not, or he is just spending it.

       [Appellant]: You better not—like I told you, I got like 200 and the other one,
                    that the other one is like 300. The one I haven't messed with.

              ....

       [Linda]:      Okay. Because I took some money from Luis. I took some
                     money because he said it wasn't 200, it was less. And he
                     took, like, 15 for himself to eat, since he was helping you sell
                     it.

              ....

       [Appellant]: He hasn't messed with the other one?

       [Linda]:      No. I took it away from him.

       [Appellant]: It is still the big piece?

       [Linda]:      The big one.

              ....

       [Appellant]: Did we sell anything else?

       [Linda]:      I can't hear you, [appellant].

       [Appellant]: I said did Luis get rid of anything else?

                                                 9
[Linda]:      Oh, I think he just needed a small one, like a 50 one, right?

       ....

[Appellant]: How much money did y'all get? I should have like 200, at
             least, 180 something.

       ....

[Linda]:      I don't know how much Luis has on him.

[Appellant]: Uh-huh.

[Linda]:      Yes. Because he is just fine there with the white girl. She
              wants 50. No. [Appellant] said that I can't touch that filth.

[Appellant]: I don't know what is in there. I don't want to cut it and then
             they leave me out of it.

[Linda]:      Since Luis saw it, he said it was like $400.

       ....

[Appellant]: Yeah, but I don't want to do nothing, because I don't want to
             mess it up.

[Linda]:      That is why I told him that you don't want anything. I told him,
              "I think he just has a dime left."

       ....

[Linda]:      Yeah. [Luis] said I will sell it all. . . . He said it was 170 and he
              just took pen to ink. That is what he did. And 60, 70, 150 for
              you.

       ....

[Linda]:      You wanted 350 for everything.

[Appellant]: Yeah.

       ....

[Linda]:      Do you want to sell it? I said, "[Appellant] doesn't want anyone

                                       10
              to sell it. He just wants 350 for it. That is all." I was going to
              ask Pete.

       ....

[Appellant]: 300 at least.

       ....

[Linda]:      Oh, at least 300? Okay. That is fine. Anyways, Lydia is going
              to see who wants some. Like you said, you need someone
              who knows how to cut it, right?

[Appellant]: Yeah.

[Linda]:      They're going to cut it like that, and then it's not going to come
              out.

       ....

[Linda]:      He gave Nieto a dime to go get some filth, and Nieto never
              came back. . . .

       ....

[Linda]:      What can I tell you? I was going to tell you something. Oh,
              like, Chrissy told me that they didn't have any evidence on
              anybody with that filth. They didn't catch anyone with it, right?

[Appellant]: Uh-huh.

[Linda]:      And you-all can fight, saying that there was nobody, and that
              the filth—somebody put it there. That's all. It is one. Not
              Jesse. He's going back, anyways for parole and all of that.

       ....

[Linda]:      I will have your money, the 150 by tonight.

[Appellant]: Yeah, because I want you to send it today, like take it to the
             mail today, so it could be here by tomorrow.

       ....


                                      11
[Appellant]: If not, just tell Lu to get rid of the other stuff I got.

       ....

[Linda]:       Luis already gave me all of the money.

[Appellant]: No, mom. The other stuff I had.

[Linda]:       I have it stored.

[Appellant]: Well, give it to somebody, so they can sell it for me.

       ....

[Linda]:       Okay. Anyways, I will tell (undecipherable) to sell it for more.

[Appellant]: Tell Lu I at least want 300 out of it.

       ....

[Appellant]: Did she get me the other stuff or what?

[Linda]:       Nah. It is right, they have to weigh it to see how much it is?

[Appellant]: Uh-huh.

[Linda]:       At night, I'll give it to him, because I don't think he knows where
               it is at.

[Appellant]: Uh-huh.

[Linda]:       And no one is going to buy it like that. You need to weigh it to
               see how much it is.

       ....

[Linda]:       I had 30 left, and no one wants it the way you want to do it.

[Appellant]: What?

[Linda]:       Buy the 300 just like that.

[Appellant]: I said tell Lu to cut it, I said.


                                        12
[Linda]:      Oh, Luis knows how?

[Appellant]: Yeah, I'm pretty sure he does. But tell him to at least cut 300
             out of it. Tell him I at least want 300 out of it.

       ....

[Linda]:      Both of y'all are going to go to court, right?

[Appellant]: Yeah.

[Linda]:      Well, you need to tell them that it wasn't a lot of filth, that the
              door was open and they left it all there.

[Appellant]: I know.

[Linda]:      That's all that can be done. I don't know. Anyways, I need to
              know how much filth it is?

[Appellant]: What, mom?

[Linda]:      I need to know, so I can know how much of all of that is going
              to be.

       ....

[Appellant]: Where is everybody at? Did you ever move the other stuff?

[Linda]:      No. No one knows how to cut it.

[Appellant]: Okay.

       ....

[Linda]:      Lydia went to see Jesse.

[Appellant]: Uh-huh.

[Linda]:      And Pete, right? They said they had pictures of you-all when
              they took the filth out of the house.

[Appellant]: Uh-huh.

[Linda]:      They can't give the pictures they have to Junior.

                                      13
[Appellant]: The what, Mom?

[Linda]:      They can't give him the pictures that they took of the house.
              They can't give them to Junior.

[Appellant]: I don't know.

[Linda]:      He just said they have photos from your drawer, right?

[Appellant]: Uh-huh.

[Linda]:      There's a lot of . . . knives, rocks, and I don't know how much
              rock you had, and a pistol, and they all have the—that in
              photos.

[Appellant]: Uh-huh.

[Linda]:      And all of that Junior has.

       ....

[Linda]:      And Lydia, Jesse showed Lydia all of that.

[Appellant]: Oh?

       ....

[Linda]:      Marijuana, also. You did marijuana, too?

[Appellant]: No.

[Linda]:      Right. You don't have a lot of filth.

[Appellant]: No.

[Linda]:      She said there was some [filth] on top of the TV and another
              one on the window, and you had it everywhere.

[Appellant]: Oh, no mom.

[Linda]:      They have all the photographs and Junior showed it to Lydia.
              I know they can give it to anybody, just to them.


                                      14
        [Appellant]: No.

                                           III. AFFIRMATIVE LINKS

        By his first issue, appellant contends that the evidence is legally insufficient to

establish an affirmative link between him and the cocaine found in the bedroom of the

Peabody residence.17 The State counters that the evidence showed that the drugs were

discovered in appellant's bedroom, there were two official identification cards belonging to

appellant found in close proximity to the drugs, and "both [appellant] and other members

of his family made damaging admissions and hearsay statements, admitted without

objection, linking him to the cocaine in question."

A. Standard of Review and Applicable Law

        In a legal sufficiency review, we view 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.18 We must consider all of the evidence

that the trier of fact considered even if that evidence was wrongly admitted.19 "It is not

necessary that every fact point directly and independently to the defendant's guilt, but it is

enough if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances."20



        17
            Appellant does not challenge any other elem ents of possession of cocaine with intent to deliver.
See T EX . H EALTH & S AFETY C OD E A N N . § 481.112(a), (d).

        18
           Jackson v. Virginia, 443 U.S. 307, 319 (1979); Poindexter v. State, 153 S.W .3d 402, 405 (Tex.
Crim . App. 2005).

        19
             Lopez v. State, 267 S.W .3d 85, 95 (Tex. App.–Corpus Christi 2008, no pet.).

        20
             Id. (citing Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007)).

                                                       15
       A person commits an offense if the person knowingly or intentionally possesses a

controlled substance in Penalty Group 1 with intent to deliver.21 To prove possession of

a controlled substance, the State must show that the accused: (1) intentionally or

knowingly exercised control, management, or care over the substance; and (2) knew that

the substance was contraband.22 However, "[w]hen an accused is not in exclusive

possession and control of the place where contraband is found, it cannot be concluded he

had knowledge or control over the contraband unless there are additional independent

facts and circumstances that affirmatively link him to the contraband."23 A link between the

accused and the contraband may be established by the following nonexclusive list of

factors: (1) the contraband was in plain view; (2) the accused owned the premises or had

the right to possess the place where the contraband was found; (3) the accused had a

large amount of cash when found; (4) the accused's access to the contraband; (5) the

accused's close proximity to the contraband; (6) there was a strong residual odor of the

contraband; (7) the accused possessed other contraband when arrested; (8) paraphernalia

to use the contraband was present on the accused or in plain view; (9) the accused was

under the influence of narcotics when arrested; (10) the accused's conduct indicated a

consciousness of guilt; (11) the accused attempted to escape or flee; (12) the accused

made furtive gestures; (13) the accused had a special connection to the contraband; (14)

conflicting statements about relevant matters were made by the occupants of the place


       21
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.112(a) (Vernon Supp. 2009).

       22
            Lopez, 267 S.W .3d at 91.

       23
            Lassaint v. State, 79 S.W .3d 736, 740 (Tex. App.–Corpus Christi 2002, no pet.).

                                                       16
where the contraband was found; (15) the accused made incriminating statements

connecting himself to the contraband; (16) the quantity of the contraband; and (17) the

accused was observed in a suspicious area under suspicious circumstances.24 The

sufficiency of links is not based on the number of factors established, but on the logical

force of all the circumstantial and direct evidence.25

B. Analysis

        In this case, it is undisputed that appellant was not present at the Peabody

residence when Officer Murray found the drugs on October 29, 2006, and we acknowledge

that many of the factors usually linking a defendant to the contraband are not present in

this case. However, the list is nonexclusive, and the jury heard evidence of additional

independent facts and circumstances that link appellant to the contraband in this case.26

        First, Officer Neal testified that in a previous encounter, he entered the Peabody

residence through a "side door" that led to a bedroom appellant claimed was his room.

Officer Murray testified that he entered the Peabody residence through a door leading to

a bedroom where he discovered the drugs with a Texas driver's license belonging to

appellant.27 The driver's license listed the Peabody residence as appellant's address.

        Next, Lydia admitted that she told appellant that Jesse showed her pictures of


        24
             Lopez, 267 S.W .3d at 92.

        25
          Evans v. State, 202 S.W .3d 158, 162 (Tex. Crim . App. 2006); Lopez, 267 S.W .3d at 92; Lassaint,
79 S.W .3d at 741.

        26
          See Lassaint, 79 S.W .3d at 740; see also Lopez, 267 S.W .3d at 92 ("There is no established or set
form ula of factors that would dictate a finding of a link to support a reasonable inference of knowing
possession of contraband.").

        27
             Officer Murray testified that the Peabody residence only had two bedroom s.

                                                      17
appellant's gun, stereo, and "blunts" on his windowsill. Lydia stated she told appellant that

there was a picture of a plate of drugs and that Jesse told her the drugs belonged to

appellant.28

       Finally, appellant's mom, Linda, told appellant that "they" had pictures of "some

[filth] on top of the TV and another one on the window." Officer Murray testified that he

found marihuana on top of a television set and marihuana "blunts" on the windowsill next

to a bed. Linda also stated that the pictures were of appellant's drawer, pistol, and knife.

State's exhibits 19, 20, and 21 show an open drawer with a gun found next to appellant's

identification card. Linda also informed appellant that there was a picture of his "rocks."

Officer Livingston described crack cocaine as "rocks," and Officer Mills stated, "'Rock' is

a—the street term for cocaine base or crack cocaine." In addition, during his conversations

with his mother, appellant discussed cutting and then selling an unspecified item. Officer

Murray testified that "cutting it up" refers to "using a razor blade to cut a smaller piece of

crack cocaine from a larger piece."

       Construing the above evidence in the light most favorable to the verdict,29 we

conclude that based on the logical force of all the evidence, the jury could have found an

affirmative link between the cocaine and appellant beyond a reasonable doubt and that

appellant intentionally or knowingly exercised control, management, or care over the

cocaine and knew that the substance was contraband.30 Therefore, the evidence was


       28
            This testim ony was adm itted without objection.

       29
            See Jackson, 443 U.S. at 319; Poindexter, 153 S.W .3d at 405.

       30
            See Lopez, 267 S.W .3d at 91.

                                                      18
legally sufficient to support appellant's conviction. We overrule appellant's first issue.

                                  IV. EXTRANEOUS OFFENSE EVIDENCE

       By his second issue, appellant challenges the trial court's admission of extraneous

offense evidence. Specifically, appellant contends that pursuant to Texas Rules of

Evidence 404(b) and 403, the trial court erred in admitting evidence that appellant "possibly

possessed cocaine in August 2003."                    The State maintains that the evidence was

admissible to prove appellant's intent to deliver.31 By his third and fourth issues, appellant

contends that evidence that Officer Murray found a handgun and marihuana at the

Peabody residence was inadmissible.

A. Standard of Review and Applicable Law

       We review a trial court's admission of extraneous offense evidence under an abuse

of discretion standard.32 We must uphold the trial court's decision to admit the extraneous

evidence if it is within the zone of reasonable disagreement.33 "An appellate court would

misapply the appellate abuse of discretion standard of review by reversing a trial court's

admissibility decision solely because the appellate court disagreed with it."34

       Pursuant to rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible

"to prove the character of a person in order to show action in conformity therewith."35



       31
            The trial court adm itted the extraneous offense evidence for this purpose.

       32
            Powell v. State, 63 S.W .3d 435, 438 (Tex. Crim . App. 2001).

       33
            Id.

       34
            Id.

       35
            Berry v. State, 233 S.W .3d 847, 858 (Tex. Crim . App. 2007) (quoting T EX . R. E VID . 404(b)).

                                                       19
However, such evidence is admissible if offered for another purpose, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.36 To be admissible under rule 404(b), evidence of appellant's alleged

possession of .88 grams of cocaine in 2003 would have to be relevant apart from showing

character.37 The evidence is relevant if it

        tends to establish some elemental fact, such as identity or intent; that it tends
        to establish some evidentiary fact, such as motive, opportunity or
        preparation, leading inferentially to an elemental fact; or that it rebuts a
        defensive theory by showing, e.g. absence of mistake or accident . . . [or]
        that it is relevant upon a logical inference not anticipated by the
        rulemakers.[38]

"Where the state's direct evidence, however, clearly shows the intent element of the crime

and that evidence is uncontradicted by the defendant or not undermined by

cross-examination of the state's witnesses, the offer of other crimes is unjustified [to prove

intent] due to the lack of relevancy."39

B. Analysis

1. Evidence of the 2003 Incident at the Peabody Residence

        Evidence of the 2003 incident was not admissible under rule 404(b) because it did

not tend to make appellant's intent to deliver the crack cocaine in 2006 more or less




        36
        T     EX .   R. E VID . 404(b); De La Paz v. State, 279 S.W .3d 336, 342-43 (Tex. Crim . App. 2009).

        37
          Rankin v. State, 974 S.W .2d 707, 718 (Tex. Crim . App. 1998) (op. on reh'g) ("If the trial court
determ ines the evidence has no relevance apart from character conform ity, it is inadm issible.").

        38
             Id.

        39
             Id. at 719.

                                                          20
likely.40 The State presented evidence that during the 2003 incident, appellant admitted

to possession of cocaine, and a surveillance camera was found in his bedroom. Officer

Livingston then testified that "surveillance cameras are commonly used by narcotics

traffickers to protect their investment, their drugs, their money." However, no evidence was

presented that the surveillance camera found in appellant's bedroom in 2003 was used to

protect appellant's "investment, drugs, or money."                Furthermore, no evidence was

presented that in 2003, appellant possessed the cocaine with the intent to deliver and

appellant was not charged with an offense for that incident. In fact, Officer Mills stated that

the amount of cocaine found in 2003, .88 grams, would be typical for personal use; and

Officer Livingston testified that, in his experience as a narcotics investigator, he considered

less than one gram of cocaine to be an amount for personal use.

        The fact that appellant allegedly possessed a small amount of crack cocaine, the

amount an individual would possess for personal use, in 2003 was not probative as to

appellant's intent to possess the larger amount of crack cocaine on the date of the charged

offense. Therefore, the extraneous offense evidence did not tend to make it more or less

likely that appellant possessed the large amount of crack cocaine in 2006 with the intent

to deliver.

        The State alleges that appellant "opened the door" to the extraneous offense

evidence because he claimed in his opening statement that the drugs were not his and



        40
           See id. at 718 (providing that "if a defendant objects on the grounds that the evidence is not
relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent m ust show that the
evidence has relevance apart from showing character") (citing Montgomery v. State, 810 S.W .2d 372, 387
(Tex. Crim . App. 1990) (en banc) (op. on reh'g)).

                                                  21
belonged to Jesse.41 Here, we find that appellant did not go "beyond simply pleading not

guilty" during his opening statement by asserting that the cocaine did not belong to him;

therefore, he did not open the door to admission of the extraneous offense evidence.42

        Moreover, appellant's intent to deliver may have been inferred from the quantity of

drugs possessed by appellant43 and from the other evidence presented by the State. The

State presented evidence that the amount of crack cocaine found was thirty-four grams.

The State presented Officer Livingston's testimony that large amounts of narcotics indicate

that someone was probably selling the drugs.44 Officer Livingston testified that State's

exhibit 203, a picture of items found by Officer Murray at the Peabody residence in 2006,

showed "a large chunk" or "cookie" of crack cocaine, and several smaller pieces of crack

cocaine called "dimes," "twenties," and "fifties." Officer Livingston also stated that a "Tec

9 pistol"—the type of weapon found with the drugs at the Peabody residence in 2006—is

"liked" by people who deal drugs. Officer Christian testified that thirty-four grams is

considered too much for mere "personal use." Furthermore, appellant asked Linda to sell



        41
            See Robbins v. State, 88 S.W .3d 256, 261 (Tex. Crim . App. 2002) (concluding that the extraneous
evidence of appellant's relationship with the victim was relevant because appellant "went beyond sim ply
pleading not guilty through vigorous cross-exam ination of the prosecution witnesses suggesting that the
victim 's death was caused by som e m eans other than an intentional act by appellant," and concluding that it
was "at least debatable whether this is sufficient to put appellant's intent at issue").

        42
           See id. ("[I]n Texas a sim ple plea of not guilty usually does not m ake issues such as intent a
relevant issue of consequence for purposes of determ ining the adm issibility of relationship evidence under
Rule 404(b)."); G arcia v. State, 201 S.W .3d 695, 704 (Tex. Crim . App. 2006) (stating that in Robbins, "we
pointed out that a sim ple plea of not guilty does not put intent at issue in each case").

        43
             Parker v. State, 192 S.W .3d 801, 805 (Tex. App.–Houston [1st Dist.] 2006, pet. ref'd).

        44
           Hankton v. State, 23 S.W .3d 540, 546 (Tex. App.–Houston [1st Dist.] 2000, pet. ref'd) (explaining
that "possession of large quantities of cocaine, corroborated by expert testim ony, is sufficient to prove intent
to deliver").

                                                       22
an undisclosed item and to find someone to "cut" it up, which Officer Murray described as

"using a razor blade to cut a smaller piece of crack cocaine from a larger piece." From this

evidence, the jury was free to infer that appellant and Linda were arranging the sale of

crack cocaine while he was in jail. Therefore, we conclude that admission of the 2003

incident was unjustified due to the lack of relevancy.45 Because the 2003 incident was not

relevant to a fact of consequence aside from its tendency to show action in conformity with

character,46 we conclude that the trial court abused its discretion by admitting it.47

         However, our analysis does not end here. Because we have found error in the

admission of the extraneous evidence, we must conduct a harm analysis.48 In our analysis,

we disregard nonconstitutional error that does not affect the substantial rights of the

defendant.49 "A substantial right is violated when the error had a substantial and injurious

effect or influence in determining the jury's verdict."50

        Here, the jury properly heard evidence that appellant, while in jail, directed Linda

and others to continue selling crack cocaine. The jury also heard Lydia's testimony that

the drugs found at the Peabody residence belonged to appellant and Linda's testimony that

pictures of appellant's "rocks" existed. That appellant may, in a collateral case, have



        45
             Rankin, 974 S.W .2d at 719.

        46
             See id. at 718.

        47
             See Powell, 63 S.W .3d at 438.

        48
           See T EX . R. A PP . P. 44.2; Reyes v. State, 69 S.W .3d 725, 742 (Tex. App.–Corpus Christi 2002, pet.
ref'd) (providing that the erroneous adm ission of extraneous evidence is subject to a harm analysis).

        49
         T    EX .   R. A PP . P. 44.2(b).

        50
             Reyes, 69 S.W .3d at 742.

                                                      23
possessed .88 grams of crack cocaine three years earlier seems almost insignificant in

comparison with his conduct in the primary offense. Therefore, after reviewing the record,

we conclude that the error did not have a substantial and injurious effect or influence in

determining the jury's verdict."51 Accordingly, appellant's second issue is overruled.

2. Evidence of the Gun and Marihuana

        Appellant argues that the gun found at the Peabody residence in 2006 "is not

relevant to the charges." However, as the State correctly asserts, the indictment alleged

that appellant "during the commission of the offense, used and exhibited a deadly weapon,

to-wit: a firearm." Therefore, evidence that the gun was found with the drugs was relevant

to the charged offense and was not inadmissible pursuant to rule 404(b).52 We overrule

appellant's third issue regarding the admission of the gun.

        Appellant also maintains that the trial court should have excluded evidence of the

marihuana pursuant to rule 403, arguing that evidence of the marihuana was not relevant,

"impressed the jury in some irrational way," and "the State had no need for presenting

[evidence of the marihuana] to prove any fact of consequence." The State counters that

evidence of the marihuana was relevant to prove that the cocaine was linked to appellant.53

        At trial, before Officer Murray testified, appellant objected to any testimony that

        51
             See Reyes, 69 S.W .3d at 742.

        52
          See Coleman v. State, 145 S.W .3d 649, 654-55 (Tex. Crim . App. 2004) (providing that even if the
defendant is not present when a gun is found in close proxim ity to drugs, there is sufficient evidence to show
that the weapon was used to protect or facilitate possession of the drugs, and thus to support a finding that
the defendant used the deadly weapon during the com m ission of a crim e).

        53
           See Brown v. State, 911 S.W .2d 744, 748 (Tex. Crim . App. 1995) ("Indeed, we have even recently
held that evidence of extraneous transactions m ay be adm itted in drug possession cases whenever they tend
"to prove the requisite affirm ative link to the contraband.") (citing Saenz v. State, 843 S.W .2d 24, 27 (Tex.
Crim . App. 1992)).

                                                     24
marihuana was found at the scene because appellant had not been charged with that

offense and it was an extraneous offense. The trial court overruled appellant's objections

and admitted evidence of the marihuana on the basis that it was "part of the whole scene."

Appellant did not object to evidence of the marihuana on the basis that it was not relevant

or that it was inadmissible pursuant to rule 403, as he now argues on appeal.

        Officer Murray then testified, without objection, that when he entered the bedroom,

he noticed "marijuana in plain view on top of a large television that was against the north

wall." Later, when the State offered exhibits 49 and 50 into evidence, pictures of what

Officer Murray identified as "[m]arijuana blunts [he] found in the room," appellant objected

to those exhibits pursuant to rules 404(b) and 403. Although appellant objected to the

exhibits depicting the marihuana found at the Peabody residence pursuant to rule 403, he

did not object on that basis when Officer Murray previously testified that he found

marihuana in plain view. Therefore, appellant did not preserve error.54 We overrule

appellant's third issue regarding admission of evidence that Officer Murray found

marihuana at the Peabody residence.

3. Testimony of Narcotics Officer

        By his fourth issue, appellant contends that the "trial court improperly admitted

testimony from [a] specialized narcotics officer portraying appellant's house as a drug




        54
           See Leday v. State, 983 S.W .2d 713, 718 (Tex. Crim . App. 1998) (en banc) (providing that
overruling an objection to evidence will generally not result in reversal when evidence of the sam e fact was
received, either before or after the com plained-of ruling); Ethington v. State, 819 S.W .2d 854, 858 (Tex. Crim .
App. 1991) (en banc) ("[I]t is well settled that an error in the adm ission of evidence is cured where the sam e
evidence com es in elsewhere without objection; defense counsel m ust object every tim e allegedly
inadm issible evidence is offered.").

                                                       25
house in general without notice to the defense" pursuant to rule 404(b).55 Appellant argues

that Officer Livingston's testimony that the Peabody residence was a "drug house"

constituted extraneous offense evidence requiring notice.

        Assuming that the State portrayed the Peabody residence as a "drug house,"

appellant has cited to no authority, and we find none, providing that a description of an

inanimate object, such as a house, is treated as a crime, wrong, or act attributable to the

defendant.56 Therefore, we overrule appellant's fourth issue.

                                             V. MOTION TO SUPPRESS

        By his fifth issue, appellant contends that the trial court should have granted his

motion to suppress the evidence found at the Peabody residence. Appellant argues that

the police officer's entry and search of the residence was illegal.

        Appellant filed a motion to suppress requesting that the trial court suppress all

evidence found as result of the allegedly illegal search. In his motion, appellant argued

that there was no probable cause or permission to search the Peabody residence. At a

pre-trial hearing, appellant told the trial court that it could hear the motion to suppress

"along with the case" and make a ruling at the time. The trial court agreed to hear the

motion at trial and make a ruling at that time. At the pre-trial hearing, the trial court did not

hear any evidence on appellant's motion to suppress.

        At trial, during direct examination by the State, Officer Murray testified, without

        55
             See T EX . R. E VID . 404(b).

        56
           See Manning v. State, 114 S.W .3d 922, 926 (Tex. Crim . App. 2003) ("An extraneous offense is any
act of m isconduct, whether resulting in prosecution or not, that is not shown in the charging papers. It is an
offense that is extra, beyond, or foreign to the offense for which the party is on trial.") (internal quotations
om itted).

                                                      26
objection, that he entered the Peabody residence through an unlocked door after being

dispatched to the Peabody residence. Officer Murray stated that when he entered, he

        noticed in plain view, on the right side of me, which would be on the east side
        of the room, there was a desk with a stereo on it. On top of the stereo
        there's a tray with what I was able to identify as crack cocaine. Next to it was
        an ID. In addition, on that desk, there was a desk drawer that [was] open
        and in plain view, there was a handgun, as well as an ID next to the
        handgun. There was paraphernalia. I continued in through the room. I
        noticed there was marijuana in plain view on top of a large television that was
        against the north wall. . . .

The State later asked, "Officer, you testified that you saw a weapon there?" and Officer

Murray responded, "Yes sir."              Officer Murray then described the weapon as an

"Intertech9mm" and described it as a "handgun that's designed to shoot 9mm rounds" with

a "high-capacity magazine." According to Officer Murray, a "[h]igh-capacity magazine is

one that's designed to hold a large number of rounds." Appellant did not object to this

testimony.

        The State then offered into evidence: (1) a picture of the dining room; (2) a picture

that Officer Murray described as an open drawer with a gun inside57; (3) a close-up photo

of the identification card belonging to appellant found in the drawer near the gun; (4)

another picture of the open drawer with the gun and identification card inside; and (5) a

picture of a tray with the crack cocaine. After appellant's trial counsel took Officer Murray

on voir dire, he stated that he had no objection to admission of those exhibits.58 The trial



        57
         W e note that there are two State's exhibits m arked as 19 in the record. The other State's exhibit
19 appears to be a picture of the surveillance cam era found in the Peabody residence in 2003.

        58
          During the voir dire exam ination, Officer Murray stated that he did not take the photographs, that
the photographs depicted the scene as he found it on that day, that the drawer was open when he arrived,
and that he "froze the scene" before the crim e scene investigators arrived.

                                                    27
court then admitted the pictures into evidence.

       However, when the State offered into evidence the actual gun found at the Peabody

residence, appellant objected "pursuant to the motion to suppress on file, that this was the

result of an illegal search." The trial court asked the jury to leave the courtroom and asked

Officer Murray several questions regarding his entry into the Peabody residence. Officer

Murray told the trial court that after he knocked on the door and there was no response,

he made entry to "determine if there was [sic] any injured parties or if there was a fight in

progress." Officer Murray explained that he had been dispatched because there had been

a 911 call indicating that someone had been in a fight and was injured at the Peabody

residence. Appellant's counsel took Officer Murray on voir dire and Officer Murray stated

that he did not know who made the 911 call because he had been dispatched. After

hearing argument from the State and appellant, the trial court denied appellant's motion

to suppress.

       In Flores v. State, this Court concluded "that the rationale for permitting an accused

to stand silent at trial following a pre-trial denial of a suppression motion does not apply

when: (1) the trial court has not yet ruled on the motion; and (2) the State offers evidence

the accused seeks to exclude."59 Here, the trial court had not ruled on appellant's motion

to suppress and instead, carried the motion over to trial. Therefore, the mere filing of his

motion to suppress did not preserve error, and appellant was required to make a timely




       59
            129 S.W .3d 169, 173 (Tex. App.–Corpus Christi 2004, no pet.).

                                                    28
objection at trial to do so.60 Appellant did not object when the trial court admitted evidence

that he sought to suppress, including Officer Murray's testimony that he found in plain view

a tray with crack cocaine, a gun next to appellant's identification card, and marihuana.61

In fact, when the State offered pictures of the crack cocaine and the gun, appellant stated

through his trial counsel that he did not object. Although appellant later urged his motion

to suppress outside the presence of the jury and objected to the admission of the evidence

on the same grounds, we find that he failed to object at the earliest opportunity, and has

therefore not preserved error.62 We overrule appellant's fifth issue.

                                       VI. MODIFICATION OF JUDGMENT

         The Texas Rules of Appellate Procedure give this Court authority to modify

judgments sua sponte to correct typographical errors and make the record speak the

truth.63 The trial court's judgment indicates the statute for the offense of which appellant

was convicted was Section 481.115 of the Texas Health and Safety Code, which is entitled

"Possession of Substance in Penalty Group 1."64 Our review of the record shows that the


        60
           See Thomas v. State, 884 S.W .2d 215, 216 (Tex. App.–El Paso 1994, pet. ref'd) (concluding that
because appellant failed to obtain a hearing or ruling on his m otion to suppress before trial, and agreed that
the m otion could be carried over to trial and raised by objection at the appropriate tim e, "the m ere filing of the
m otion to suppress did not preserve error, and Appellant was required to m ake a tim ely objection at trial in
order to do so").

         61
            See T EX . R. A PP . P. 33.1(a)(1)(A); Flores, 129 S.W .3d at 171; Thomas, 884 S.W .2d at 216 ("To be
tim ely, an objection m ust be raised at the earliest opportunity or as soon as the ground of objection becom es
apparent.").

        62
              See Thomas, 884 S.W .2d at 216-17.

        63
       T EX . R. A PP . P. 43.2; French v. State, 830 S.W .2d 607, 609 (Tex. Crim . App. 1992); Rhoten v. State,
299 S.W .3d 349, 356 (Tex. App.–Texarkana 2009, no pet.); Gray v. State, 628 S.W .2d 228, 233 (Tex.
App.–Corpus Christi 1982, pet. ref'd).

         64
              See T EX . H EALTH & S AFETY C OD E A N N . § 481.115 (Vernon Supp. 2009).

                                                         29
correct statute for the offense is section 481.112(d) of the Texas Health and Safety Code.65

Therefore, we hereby modify the judgment to indicate that the statute under which

appellant was convicted is section 481.112(d) of the Texas Health and Safety Code.

                                     VII. CONCLUSION

       We affirm the judgment as modified.



                                                        _____________________
                                                        LINDA R. YAÑEZ,
                                                        Justice

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

Delivered and filed
the 1st day of April, 2010.




       65
            See id. § 481.112(d).

                                            30
