Opinion filed July 26, 2018




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-16-00216-CR
                                    __________

                         ADAM SOSA, JR., Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 132nd District Court
                             Scurry County, Texas
                          Trial Court Cause No. 10378


                      MEMORANDUM OPINION
       The jury convicted Adam Sosa, Jr. of possession of a controlled substance and
assessed his punishment at confinement for two years in the State Jail Division of
the Texas Department of Criminal Justice. We affirm.
       Appellant presents two issues on appeal. In his first issue, Appellant asserts
that the trial court erred when it admitted extraneous offense evidence. In his second
issue, Appellant asserts that the evidence is legally and factually insufficient to
support a conviction for possession of a controlled substance.
      We first address Appellant’s second issue, which concerns the sufficiency of
the evidence. We hold that the evidence is sufficient.
      In the early morning hours of November 28, 2015, Officer Alex Gallagher
stopped Appellant for driving a vehicle that had an expired registration sticker.
When he performed a “records check,” Officer Gallagher discovered that
Appellant’s driver’s license was suspended, and he placed Appellant under arrest for
driving without a valid license. Officer Gallagher searched Appellant, but he did not
find any drugs.
      Meanwhile, Sergeant Lea Tarter conducted an inventory search of Appellant’s
vehicle. Sergeant Tarter found a backpack in the backseat. The backpack contained
a digital scale; the scale had white residue on it. Officer Gallagher testified that, in
his experience, digital scales are associated with illegal drugs. When she searched
the backpack, Sergeant Tarter also found a sandwich baggie; a corner had been torn
off the sandwich baggie. Sergeant Tarter testified that, in her experience, those type
of baggies are used by people who use narcotics.
      Officer Gallagher handcuffed Appellant and placed him in the backseat of the
patrol car. Although Appellant’s hands were handcuffed behind his back, he was
still able to shift around in the backseat. At one point, Appellant lifted himself off
the seat in an attempt to stand up.
      Once they arrived at the jail, Officer Gallagher asked Appellant whether he
had any drugs on him. Appellant told him that he did not. Because Appellant
sounded unsure of his answer, Officer Gallagher asked the jail staff to “strip search”
Appellant. Officer Gallagher went back to his patrol car, and when he searched
under the backseat, he found a small plastic baggie of methamphetamine.


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       Officer Gallagher testified that he routinely checks the backseat of his patrol
car after he transports suspects to jail. He further testified that he was confident that
there were no illegal substances in his patrol car before he placed Appellant in the
backseat.
       Five months later, on April 15, 2016, Officer Gallagher again arrested
Appellant for driving without a valid license. Officer Gallagher searched Appellant
and found several small plastic baggies that contained a crystal residue. The baggies
appeared similar to the plastic baggie that Officer Gallagher found the in the backseat
of his patrol car on November 28. When Officer Gallagher searched Appellant’s
vehicle on this occasion, he found a cardboard box that had contained a synthetic
urine kit.
       We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
       Appellant contends that the evidence that conflicted with the jury’s verdict
was so overwhelming that the verdict is against the great weight and preponderance
of the evidence. Specifically, Appellant notes that the plastic baggie that contained
methamphetamine was never tested for fingerprints. Appellant further points out
that, when the police stopped him on November 28, he pulled over immediately.
Officer Gallagher thoroughly searched Appellant before he put Appellant in the
patrol car, and Appellant’s hands were handcuffed tightly behind his back. When
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he was placed in the patrol car, Appellant said, “ouch,” and then began shifting
around in the backseat. Appellant contends that, in order to drop something under
the seat, it would have been necessary for him to unhinge the seat. As a part of his
conflicting evidence argument, Appellant mentions that a man named Guerrero had
accused Officer Gallagher of “plant[ing] dope.” Finally, although Officer Gallagher
testified that he was confident that there were no illegal substances in his vehicle
before Appellant rode in the backseat, Appellant notes that a known drug offender
had been riding in the patrol car just prior to the time that Officer Gallagher put
Appellant in the backseat. Appellant also points out that there is no video to show
that Officer Gallagher searched the backseat of the patrol car between the time that
the known drug offender left the patrol car and the time that Officer Gallagher put
Appellant in the patrol car.
      However, much of this evidence was contested by the State. Although
Officer Gallagher testified that unhinging the seat is the easiest way to access the
space underneath it, there is no evidence that it is the only way to do that.
Officer Gallagher contradicted Guerrero’s accusation that he had “plant[ed] dope”
and noted that he never filed possession charges against Guerrero because he did not
believe that he could confidently testify that the “dope” (in fact, a glass narcotics
pipe) had actually been in Guerrero’s possession. Officer Gallagher further testified
that the incident with Guerrero led him to make it a habit to check the backseat of
his patrol car after every arrest. Officer Gallagher also explained that he does not
turn on his body camera every time he searches the backseat of his patrol car.
      It is the factfinder’s duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to reach ultimate facts.
Jackson, 443 U.S. at 319. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer


                                           4
to that determination. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). We overrule Appellant’s second issue.
      In his first issue, Appellant asserts that the trial court erred when it admitted
evidence of extraneous offenses. Specifically, Appellant claims that the following
evidence was inadmissible: the testimony that concerned the digital scale with the
white powder residue on it; the evidence that pertained to the sandwich baggie that
the police found in Appellant’s vehicle on November 28; the testimony connected
with Appellant’s arrest for driving without a valid license on April 15; a photograph
of the additional small plastic baggies that the police found on Appellant’s person
on April 15; and a photograph of the packaging for synthetic urine that the police
found in Appellant’s car on April 15.
      In response to Appellant’s extraneous offense claims, the State contends that
Appellant’s first issue is multifarious and presents nothing for review. We recognize
that Appellant’s first issue is multifarious, but in the interest of justice, we will
review all the arguments that Appellant has presented. See TEX. R. APP. P. 38.1;
Davis v. State, 329 S.W.3d 798, 820 (Tex. Crim. App. 2010).
      To preserve a complaint for appellate review, a party must present the trial
court with a timely request, objection, or motion in which the party states the specific
grounds for the ruling that he wants the trial court to make, if those grounds are not
apparent from the context, and the party must obtain a ruling.                TEX. R.
APP. P. 33.1(a); Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012);
Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Preservation is a
“systemic requirement” on appeal. Ford, 305 S.W.3d at 532.
      At trial, Appellant objected to the testimony that concerned the digital scale,
the photograph of the cardboard packaging for synthetic urine, and the photograph
of the small plastic baggies. However, the testimony that related to the sandwich
baggie with the torn off corner and the evidence about Appellant’s subsequent arrest
                                           5
for driving without a valid license were offered without objection.1 Appellant has
not preserved the latter two arguments for appellate review. We will therefore limit
our analysis of Appellant’s first issue to the digital scale, the photograph of the small
plastic baggies, and the photograph of the synthetic urine packaging. Appellant
contends that this evidence was irrelevant, that it was offered merely to attack his
character, and that its probative value was substantially outweighed by the danger of
unfair prejudice.
        We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). We will uphold a trial court’s ruling as long as it is within the “zone of
reasonable disagreement” or “correct on any theory of law applicable to that ruling.”
Id. at 343–44 (first quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991); and then citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App.
1982)).
        Under Rule 402 of the Texas Rules of Evidence, “[i]rrelevant evidence is not
admissible.” TEX. R. EVID. 402. “Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” TEX. R. EVID. 401.
        Under Rule 403, relevant evidence may be excluded if its “probative value is
substantially outweighed by a danger of . . . unfair prejudice.” TEX. R. EVID. 403.
Rule 403 favors the admission of relevant evidence and carries a presumption that
relevant evidence is more probative than prejudicial. Hayes v. State, 85 S.W.3d 809,
815 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 389. Evidence is unfairly
prejudicial when it has an undue tendency to suggest an improper basis for reaching


        1
         When the State’s attorney began to ask questions regarding the events of April 15, Appellant “re-
urge[d] the objections that were made [that] morning” concerning the fake urine kit packaging and the small
plastic baggies. However, no additional objections were raised.

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a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render v.
State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). When we
review a trial court’s determination under Rule 403, we reverse the trial court’s
judgment “rarely and only after a clear abuse of discretion.” Mozon v. State, 991
S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 392).
An analysis under Rule 403 includes, but is not limited to, the following factors:
(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. Hernandez v. State, 390 S.W.3d 310, 324
(Tex. Crim. App. 2012) (citing Montgomery, 310 S.W.2d at 389–90); Shuffield v.
State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
      Under Rule 404, “[e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with
the character or trait.” TEX. R. EVID. 404(a). Under Rule 404(b), evidence of an
extraneous offense may be admissible as proof of motive, intent, knowledge,
identity, or absence of mistake or accident. TEX. R. EVID. 404(b). In other words,
Rule 404(b) requires evidence of an extraneous offense to be “relevant to a material,
non-propensity issue.” De La Paz, 279 S.W.3d at 344.
      The digital scale evidence was relevant evidence and was not merely used to
show character conformity. Appellant contended at trial that he did not possess
methamphetamine on November 28. Although there is no evidence that the white
residue on the digital scale was an illegal drug, Officer Gallagher testified that, in
his experience, digital scales of this type are typically connected to illegal drugs.
Therefore, evidence that Appellant possessed the digital scale at the time that he was
arrested is relevant to the issue of whether Appellant intentionally or knowingly
possessed methamphetamine.


                                          7
      Similarly, the photograph of the empty synthetic urine packaging was relevant
to show that Appellant intentionally or knowingly possessed methamphetamine.
When the trial court overruled Appellant’s objection to this evidence, it noted that
the sole purpose of synthetic urine is “to hide the existence of drugs in one’s system.”
      Appellant also contends that the trial court erred when it allowed the jury to
infer that Appellant was in possession of methamphetamine on November 28 based
on evidence that he was a drug user on April 15. We disagree. During opening
statements, Appellant’s counsel painted for the jury a picture of an innocent man
who was pulled over for an expired registration sticker and who was completely
compliant with law enforcement officers. Appellant’s counsel emphasized that
Appellant was thoroughly searched and that there was no evidence that Appellant
possessed any drugs. Later, Appellant introduced evidence that another suspect with
a “documented drug history” may have, in fact, left the drugs in the backseat. Thus,
the State was entitled to rebut the defensive theory with evidence that Appellant was
not the innocent victim of bad luck but, instead, had intentionally and knowingly
possessed methamphetamine.
      The small plastic baggies that Officer Gallagher found when he searched
Appellant on April 15 were relevant to rebut Appellant’s contention at trial that he
did not possess the small plastic baggie of methamphetamine found in the backseat
of Officer Gallagher’s patrol car. Although there was no evidence that the small
plastic baggies contained either methamphetamine or any other illegal substance, the
baggies were similar in size and appearance to the baggie found on November 28.
Therefore, the evidence was relevant to show that the baggie of methamphetamine
at issue in this case also belonged to Appellant.
      The probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. The State took a substantial amount of time to develop
the extraneous offense evidence.         However, Appellant’s defensive theories
                                           8
strengthened the State’s need for this evidence. Further, the extraneous offenses in
question were relatively minor. Therefore, it is unlikely that this evidence influenced
the jury “in some irrational, yet indelible, way.” See Hernandez, 390 S.W.3d at 324;
Shuffield, 189 S.W.3d at 787. We cannot, therefore, conclude that the trial court
clearly abused its discretion when it allowed the jury to hear this evidence.
        Finally, Appellant contends that he was denied due process because law
enforcement officers destroyed the digital scale and the cardboard box. However,
Appellant cites no authority for the proposition that the State must preserve those
items for him. We overrule Appellant’s first issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


July 26, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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